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.

DRM litigation bait

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

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” 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.

more artist innovation in music distribution

A NYT blog is reporting that Radiohead is making digital copies of its next album available for pick-your-own-price amount — and the best part is they’re DRM-free.

Commenters on the post were almost all positive. A few salient points pulled out of comments:
* This will generate fans for and interest in its nice physical artifact versions of the albums — which are for sale for a fixed price, offering a solid profit point;
* This offers would-be downloaders an opportunity to get authorized DRM-free music at a reasonable price — a sort of come-in-from-the-cold attitude that, however small, will generate more revenue from these downloaders than they otherwise would have had;
* 100% of the proceeds — however small — are going to Radiohead, rather than 5-10% of the cost of a $15-$20 CD.

artists and IP

The NYT has two interesting stories right now featuring, shall we say, different approaches to artists and IP.

The first in a genre near and dear to my heart is a profile of Dark Horse Comics, which “built [their] publishing platform around creators’ rights … [Their] pitch was, ‘We’ll match the rights that you get from other companies and we’ll let you own the work.’”

The second is an article about Daniel Moore, a photo-realist artist (he calls it “photofuturism”) of Alabama sports moments. The University (as we in Alabama called it) is suing Moore for trademark infringement of its crimson-and-white color scheme. Yea, Alabama, Crimson Tide, yadda yadda yadda fight song lyrics sung ironically. (I went looking for the actual fight song lyrics, which did not comport with my memory, and found myself in a hell of blinking and color-challenged websites dedicated to Crimson Tide football obsession. Dave’s College Football Fight Songs is restfully simple, for those of you who want to know the actual lyrics, and not the one line that is engraved falsely in my memory.)

X-posted at sivacracy

it’s not FCC “fair use”

(It’s the anthem for fccfu.com … and, relatedly, you all know about Eric Idle’s ‘The FCC Song’, right?)

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.

interesting reading, early saturday morning

Up early for my spouse who caught a red-eye. Now she’s resting peacefully and I of course can’t get back to sleep. But that’s okay, because there’s the Internet!

  • Positive outcomes of BlogHer: Mary Hodder at Napsterization is establishing a Speakers’ Wiki.

  • In response to publisher anxieties & thinly-veiled threats of litigation, Google is implementing an opt-out provision in its scan-copyrighted-library-books program, and delaying scans of copyrighted books until November. [google blog] This has been widely reported as Google backing down. See, e.g., “Chilled by Publishers” (BoingBoing), “Google Sells Out Users” (Copyfight). I agree, sell-out, chill, yes, yes, but am taking a moment to appreciate the sweetness of the opt-out option as default.

    Siva Vaidhyanathan had a different take, predicated largely (it seems to me) on the fact that Google is a for-profit corporation. For once, I disagree with Siva, and on two grounds: both with library exceptionalism in this instance and the take on American Geophysical Union.

  • Ed Felten on Freedom to Tinker [8/9] talked about the DRM in Microsoft’s Longhorn-cum-Vista. Copyfight (8/9) summed it up and added this pithy observation: “[T]his isn’t about stopping mass copyright infringement or pleasing Hollywood. It’s about keeping “consumers” locked in and people who develop potentially competing products locked out.” See also Derek Slater at EFF Deeplinks (8/9).

  • On Balkinization, Brian Tamanaha ponders intelligent design, reminding us that the whole kerfluffle is not about debates between religion and science, but about debates between a few modern religious leaders who are picking issues:

    Darwin’s 1859 publication of The Origin of Species incited a wicked backlash from religious quarters in the United States, pitting science directly against religion. But within three decades an accommodation had been achieved, as Richard Hofstadter described in Social Darwinism in American Thought (1944):

    Science, [Le Conte] urged, should be looked upon not as the foe of religion, but rather as a complementary study of the ways in which the First Cause operated in the natural world. Whatever science might learn, the existence of God as First Cause could always be assumed.

    This raises the question: why has a sensible way to reconcile faith and science that has worked for so long become unacceptable to many religious leaders in this country? This is not like the other ongoing battles over religion in the public sphere and the separation between state and church (school prayer, Decalogue displays, funding for parochial schools), all of which raise debatable issues of public and private values.

    Putting it this way helps keep the focus on the small set of religious leaders who are sowing all this unnecessary discord.

    I feel I must document the provenance of this observation: I’m quoting Brian Tamanaha who’s quoting Richard Hofstadter who’s citing Joseph Le Conte who “followed” Asa Gray. I’m just tickled by the lengthy chain, but the observation stands on its own regardless of sources.

  • fafblog has been brilliant recently: two on intelligent design: creation science, creation technology! [fafnir 8/10] and overwhelming scientific proof [giblets 8/2]. Then more on torture: claustrophobic techniques [medium lobster 8/4] … in the kingdom of the one-eyed man, the best wars are blind [medium lobster, 7/28]. Segueing nicely from torture, the democrats: the great divorce [fafnir 8/3] . Last but not least, response to some recent efforts by the American Family Assn to provide gay checklists for childrearing: how to tell how gay your gay son is [giblets 8/9]. How despicable is this fear-mongering checklist in the light of this fearful Christian response? [See queerday 7/18, Tampa Bay Online 7/13] Too much anger. That’s why I read fafblog. I could just do a blog indexing fafblog. And still keep the title, ‘derivative work’.

  • A wretched decision out of the NLRB, restricting employees’ off-duty fraternization. Guardsmark, LLC, 334 NLRB No. 97 (2005) (decision in pdf); more info at american rights at work; linked from tom tomorrow. A bit more from me on this case.

Of course, two hours later, the spouse is still sleeping like a baby, and now “Adelaide’s Lament” is going through my head. It’s my own fault for putting iTunes on random shuffle through my entire 80+G music library last week, but still, I last heard that song over a week ago. Probably at some point this morning I had a low-level meditation on my own minor cold and it triggered a “Guys & Dolls” flashback. Unlike LSD, perhaps “Guys & Dolls” really does hang out in your fat cells waiting to be re-triggered.

old works, new copyrights
  • Sony is claiming copyright over “Zorro” and has sent a C&D to Sobini Films, which is wanting to produce a movie set in the future (well, 2010 – barely the future any more!) about Zorro. Johnston McCulley first introduced Zorro in 1919 in The Curse of Capistrano. The BBC article states it thusly: “Sobini contends it acquired the rights to Johnston McCulley’s book The Curse of Capistrano…” “Acquired the rights”? It’s a public domain work! BBC
  • OK, this news is from May, but for some reason I just saw it now. A copyright is being claimed on a formerly unknown work by Vivaldi that recently turned up in an archive. Let us remember that Vivaldi died in the 1700s. The opera (“Motezuma”) was found in a German library collection. I can only assume the library is claiming that it was never published and copyright didn’t attach to it?

    Imagine if libraries get to own copyrights on things out of their special collections. The resulting treasure hunt will certainly encourage library administrators to put more money into cataloging the special collections departments. On the other hand, what heirs of famous artists and authors will want to donate works that might yet turn out to be profitable for their great-great-great-great-great-several-times-over-grandchildren?

    I’m inspired to look into the question of copyright of archived unpublished materials. But off the top of my head, I would suggest that a work being made publicly available in a library collection ought to constitute publication. So, whenever the Vivaldi collection was initially made public, copyright on otherwise-unpublished works begins tolling. The libraries that hold works in their collections will profit as museums do now, from controlling access to the original and licensing reproductions.

    Granted, that surely won’t be as satisfying for the holder of the original copy of a composition or literary work, compared with, say, a painting or sketch. In compositions and literary works, the copyrightable expression is all carried by symbolic languages, which are easily replicable. Collectors will still attach value to the original, but the value of the work will flow with the symbolic languages.

    With a painting or sketch, on the other hand, more of the value flows with the original work. The work is not reducable into an easily transcribed symbolic language — it can only be distributed by photographic reproductions of the exact work. And even then, the artist’s expression can only be partially captured by two-dimensional photographic reproductions: The original ink and paper were artistic choices, and brush strokes include three-dimensional information that is not easily captured by photographs.

    So the papers of famous scholars and artists are not going to be quite the boon for libraries that holdings of museums are. That’s the trade-off of being an archive rather than a museum, IMO. An archive gets a lot of stuff that you haven’t yet had time to classify (less often the case than in a museum), but it’s not as often the kind of stuff that might make your institution a fortune.

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].

grokster

well — grokster is out. from the beginning:

We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.

and from the end:

There is substantial evidence in MGM’s favor on all elements of inducement, and summary judgment in favor of Grokster and StreamCast was error. On remand, re-consideration of MGMís motion for summary judgment will be in order.

J. Souter wrote the majority opinion which apparently and not surprisingly developed an “inducement” theory. Breyer concurrence (with Souter & O’Connor) and Ginsburg concurrence (with Rehnquist and Kennedy).

I saw it here [on Joe Hall's NQB2] first.

lots of discussions (confession: i haven’t had time to read them yet; just the opinion; my thoughts on metablog commentaries may come later tonight):

my own quick thoughts:

  • This outcome is no surprise. It seemed obvious that the Court was going to take a middle position that would take some kind of bite out of Sony; the real question was how big a bite.
  • So how big is this bite? The Court established an inducement standard, setting out the facts implicating Grokster et al’s knowledge and intent to have copyrighted files copied. The battle for the next few years or decades will be to expand or constrict this standard to the facts of Grokster.
    • The inducement standard is treated as part of the contributory infringement standard in one place, (p.12), but elsewhere as a third test parallel to contributory and vicarious.
    • The new inducement standard on the one hand might not be horrible, if it is limited to the facts at hand: It was certainly clear that Grokster et al intended to follow in the footsteps of Napster. Modeling your entity after another entity that was successfully characterized as a “bad actor” now looks like not so good an idea.
    • But on the other hand, the evidence cited in some instances is pretty patchy/sparse:
      • The majority opinion cites, for instance, that “Grokster’s name is an apparent derivative of Napster.” p.7, and again at p.21 (“Grokster’s name is apparently derived from Napster…”) If that kind of naming can constitute evidence then every e-business and i-product may someday be in trouble.
      • The majority also cites attempts to capture / buy relevant search engine keywords. (p.7 & p.22)
      • The Court also felt that “the defendants’ failure to develop … filtering tools or other mechanisms to diminish the infringing activity … underscores Grokster’s and StreamCast’s intentional facilitation of their users’ infringement.” I really dislike this and any other pro-network-policing implications.
    • More generally, though, I am still concerned with the dotted line this opinion implicitly draws around design decisions. It should be permissible to design your product around precedents, to avoid clearly unlawful behavior. It can and should be permissible to push that boundary in new directions — new innovation proceeds by pushing old boundaries. In the case of copyright infringement, pushing a boundary too far carries its own risk: that you might fall afoul of that boundary and be found liable for copyright infringement. But here, acknowledging the design decisions is evidence in and of itself of “inducement”. That’s troubling, because it requires that designers adopt a willful blindness attitude very similar to that which Judge Posner decried in Aimster. And it could make it difficult to defend and describe innovations in court.
    • I’m also concerned with the very notion of including an intent-based standard in copyright. Copyright is a strict liability regime. Liability is thus quite broad: any actual infringement creates liability, regardless of intent. Adding an intent-based liability to the further-afield secondary liability broadens copyright even further. The Court did attempt to address this, at p.19:

      We are, of course, mindful of the need to keep from trenching on regular commerce or discouraging the development of technology with lawful and unlawful potential. Accordingly, just as Sony did not find intentional inducement despite the knowledge of the VCR manufacturer that its device could be used to infringe, 464 U. S., at 439, n. 19, mere knowledge of infringing potential or of actual infringing uses would not be enough here to subject a distributor to liability. Nor would ordinary acts incident to product distribution, such as offering customers technical support or product updates, support liability in themselves. The inducement rule, instead, premises liability on purposeful, culpable expression and conduct, and thus does nothing to compromise legitimate commerce or discourage innovation having a lawful promise.

      Yeah, we’ll see. Here’s hoping the Court is right in its optimistic assertion that its new inducement “does nothing to compromise legitimate commerce or discourage innovtaion having a lawful promise”.

    • The Court also played dangerously with the numbers game, citing “the number of infringing downloads that occur every day using StreamCast’s and Grokster’s software” as a “powerful… argument for imposing liability”. At 12. And again at 23: “As the account of the facts indicates, there is evidence of infringement on a gigantic scale, and there is no serious issue of the adequacy of MGM’s showing on this point…. ”

      These lines will certainly appear in content-owners’ briefs and attempts to get courts to consider the quantity and volume of infringement — the very standard rejected in Sony.

    • The Court states that neither of the Sony uses (recording TV off-air, and librarying programs) was “necessarily infringing”. (p.14). So presumably new uses are not “necessarily infringing”. But wouldn’t this have applied to Napster? Personal file sharing, of degraded-quality MP3s, without commercial exchanges — that was a new use, and not a “necessarily infringing” use. Ah, this is going to beef up the market prong of the fair use test, I bet. Like it needs any more beefing.
    • The Court restricts Sony to contributory infringement not vicarious liability. Some courts assumed so anyway, but Posner in Aimster pointed out that it was really unclear. Grokster resolves that unclarity by describing Sony as merely about contributory infringement, not about vicarious liability.

      On those facts, with no evidence of stated or indicated intent to promote infringing uses, the only conceivable basis for imposing liability was on a theory of contributory infringement arising from its sale of VCRs to consumers with knowledge that some would use them to infringe. Id., at 439.

      at 14. And later at 16-17:

      [The Ninth Circuit's] view of Sony, however, was error, converting the case from one about liability resting on imputed intent to one about liability on any theory. Because Sony did not displace other theories of secondary liability …

    • On the other hand, the Court seems to want to leave Sony otherwise untouched:

      Because Sony did not displace other theories of secondary liability, and because we find below that it was error to grant summary judgment to the companies on MGMís inducement claim, we do not revisit Sony further, as MGM requests, to add a more quantified description of the point of balance between protection and commerce when liability rests solely on distribution with knowledge that unlawful use will occur. It is enough to note that the Ninth Circuitís judgment rested on an erroneous understanding of Sony and to leave further consideration of the Sony rule for a day when that may be required.

      at 17.

      Added commentary (6/28):

      The real problem is that while the Court leaving Sony untouched in name only, the Court manipulated the entire environment in which Sony lived. Sony, as it played out in the real world, stood for the generic proposition that secondary liability for developing & distributing a technology accrued only where there were no “substantial noninfringing uses” to the technology. The fact that Sony was vague on the vicarious / contributory distinction was fine — it created a grander position for the Sony standard vis-a-vis secondary liability generally. Technological development ought not be held hostage either to existing business models or to those who seek to get around the existing business models.

      Despite the Court’s intentions, Grokster chips away at Sony in two ways: First, the Court hones down the vagueness and wiggle room in Sony by construing it as a contributory case. Second, the Court opens up an entirely new avenue for secondary liability, one with (as yet) no pro-technology out. So, now technology developers, instead of being able to rely on a general, broad principle of protection for multiple-use technologies, have to watch out for both vicarious liability and the new (to copyright) inducement standard.

      The protection for technological development is gone. So what if Grokster developed its technology intending to foster copyright infringement? Once the technology is out there, it started being used to, yes, share noninfringing materials. And those uses will continue to grow and evolve. On some level, Grokster the company is merely an agent for technological evolution. But this decision is not aimed at the agent; it’s aimed at technological evolution itself. If they had wanted to aim at the agent, then they could have restricted their theory to the inducing acts and words — not to the development and distribution of the technology. How much did Grokster’s ad campaigns actually induce infringement? And how much did the mere capability of the technology “induce” infringement? Unfortunately this decision doesn’t (at first reading anyway) lend itself to focusing on the acts. It looks at the acts, but it targets the technology.

      < / end of added commentary >

    • I don’t like footnote 13:

      It is not only that encouraging a particular consumer to infringe a copyright can give rise to secondary liability for the infringement that results. Inducement liability goes beyond that, and the distribution of a product can itself give rise to liability where evidence shows that the distributor intended and encouraged the product to be used to infringe. In such a case, the culpable act is not merely the encouragement of infringement but also the distribution of the tool intended for infringing use.

  • Concurrences:
    • Breyer/Souter/O’Connor concur with the majority but disagree with Ginsburg’s concurrence (Ginsburg/Rehnquist/Kennedy) evaluating Grokster’s potential liability for “contributory infringement”. Breyer agrees with the inducement carve-out, but separately finds that Grokster meets the Sony test for contributory infringement.

      On the other hand, Breyer regularly cites the quantity in Sony — which suggests that even though he is supporting Grokster in this discussion, he has bought into the quantitative analysis anyway. However Breyer does clearly point out that 10% may not be enough, should not be fixed, and that Aimster was a stricter interpretation of Sony than he would have put forth.

      Breyer’s opinion is ultimately the most thoughtful and most directly engages the policy balances at stake. And, demonstrates the most familiarity with the record.

    • Ginsburg: I really take issue with this concurrence. How can J. Ginsburg say

      Here, there has been no finding of fair use and little beyond anecdotal evidence of noninfringing uses. … These declarations (some of them hearsay) include assertions that number of copyright owners authorize distribution of their works on the Internet and that some public domain material is available through peer-to-peer networks.

      (at 5) The fact that Rick Prelinger and Brewster Kahle have not personally used the P2P networks is used against them! Merely providing content which they authorized for distribution over P2P networks was not enough. Contrast Sony: If Ginsburg had been writing it, apparently Mr. Rogers’ statements that he was happy to have his content copied would not have been sufficient. No, Mr. Rogers would have been required to have actually used VCRs to tape his materials off air.

      Apparently all public domain and permissive filesharing constitutes “anecdotal evidence of noninfringing uses”. But shouldn’t distribution of teachers’ guides, satires, etc., count as fair uses? Oh — someone needs to make the compelling case for fair use filesharing! But I suspect nothing would persuade J. Ginsburg. Even blind orphans from Tanzania who get copies of works not otherwise available in Tanzania may not merit a tear if weighed against the all-important interests of large copyright-holding movie companies and cartels.

      Ginsburg is pushing for a reconsideration of quantitative factors, which apparently will look at the state of infringement at the moment the litigation is filed. Needless to say this would stifle and kill all sorts of technological developments.

Bolivian Activist HipHop & Copyright

The NYT ran an article today (5/26) about rap/hiphop music in Bolivia. Young artists are using hiphop & rap to get their message of social justice, democracy, and peace. One young artist talks about copyright infringement:

The one CD the rappers recorded, called “Wayna Rap,” sells robustly on the streets of El Alto, pirated by the hundreds – just as the rappers like. “I do not live off hip-hop, and I did not plan to,” said Grover Canaviri, 23, who sings for the Clandestines. “I do not care if my music is pirated. The money is not important. What we want is to send out our lyrics so they can influence.”

— Juan Forero, Young Bolivians Adopt Urban U.S. Pose, Hip-Hop and All, NYT 5/26

blatant copyright infringement!

Cool archive of NYC hip-hop posters from late 70s/early 80s. Reprinted without any permission from the poster designer(s), so far as I can tell. Why, that’s blatant COPYRIGHT INFRINGEMENT !!! Why, s/he’s a — a — a Pirate, that’s what. A Pirate and a Thief. Posting this archive, without seeking the copyright owner’s permission and perhaps paying a handsome licensing fee, why that’s like taking the lawnmower out of the garage of the poor hapless poster designer(s) or their great grandchildren or maybe their corporate assignees.

Luckily the US Copyright Office is looking into the problem of orphan works. Orphan works are those works that are copyrighted, but you can’t locate the copyright-holder to ask their permission to do something with the work.

Why is this a problem? Well, thanks to the 1976 Copyright Act (USC Title 17), all fixed works of original authorship are automatically copyrighted, without the copyright owner having to do anything (like putting a © symbol on the item). So, you know, that post-it note you left for your spouse/mate this morning — that’s protected by copyright! You “fixed” it by writing it down, and the threshold of “originality” is very low — so nobody better mess with your copyright by trying to reproduce, distribute, publicly perform or display, or derive any works from that post-it note, without your permission. And those hip-hop party flyers? They too were copyrighted upon fixation, and whether or not the creators felt the need for or intended to have criminal and civil penalties attached to their illicit reproduction. [See also US DOJ.] Illicit reproduction any time within 70 years after the original creator died, I might add.

Deep breath. The wicked foolishness of some laws just makes me kinda crazy. Sorry for the heavy sarcasm. Especially sorry for heaping scorn upon the value of the post-its and email jottings of the world, which are richly deserving of all the copyright protection that can be mustered for them. If we don’t copyright everything, then some iota of value might possibly escape exploitation! Oops. Sorry, slipped again. Sarcasm ranting hat officially OFF, and Serious Working hat, back on.

… and the criminalization of copyright law continues

great:

A federal task force that monitors the Internet caught on to the student and got a warrant

I also love how all these cases have some quote from the RIAA about how much money they lose each year. Unverifiable Saganesque billions and billions…

Teen Convicted Under Internet Piracy Law

By BETH DeFALCO
Associated Press Writer

AP Mar 7, 10:22 PM EST

PHOENIX (AP) — An Arizona university student is believed to be the first person in the country to be convicted of a crime under state laws for illegally downloading music and movies from the Internet, prosecutors and activists say.

University of Arizona student Parvin Dhaliwal pleaded guilty to possession of counterfeit marks, or unauthorized copies of intellectual property.

Under an agreement with prosecutors, Dhaliwal was sentenced last month to a three-month deferred jail sentence, three years of probation, 200 hours of community service and a $5,400 fine. The judge in the case also ordered him to take a copyright class at the University of Arizona, which he attends, and to avoid file-sharing computer programs.

“Generally copyright is exclusively a federal matter,” said Jason Schultz, an attorney with the Electronic Frontier Foundation, a technology civil liberties group. “Up until this point, you just haven’t seen states involved at all.”

Federal investigators referred the case to the Maricopa County Attorney’s Office for prosecution because Dhaliwal was a minor when he committed the crime, said Krystal Garza, a spokeswoman for the office.

“His age was a big factor,” she said. “If it went into federal court, it’s a minimum of three months in jail up front.”

Although Dhaliwal wasn’t charged until he was 18, he was 17 when he committed the crime. Prosecutors charged him as an adult but kept it in state court to allow for a deferred sentence. Garza also said Dhaliwal had no prior criminal record.

The charge is a low-level felony but may be dropped to a misdemeanor once he completes probation, she said.

A call to Dhaliwal’s attorney, James Martin, was not returned.

A man who identified himself as Dhaliwal’s father, but refused to give his name, returned a message left Monday at Dhaliwal’s parents’ home. He said his son had made a mistake, and was trying to put the case behind him. The man declined to comment further.

Brad Buckles, executive vice president for anti-piracy at the Recording Industry Association of America, said estimates say Internet piracy has cost the industry up to $300 million a year in CD sales alone.

The FBI found illegal copies of music and movies on Dhaliwal’s computer, including films that, at the time of the theft, were available only in theaters. They included “Eternal Sunshine of the Spotless Mind,” “Matrix Revolutions,” “The Cat In The Hat,” and “Mona Lisa Smile.”

A federal task force that monitors the Internet caught on to the student and got a warrant, Garza said, adding that Dhaliwal was copying and selling the pirated material.

Teen Convicted Under Internet Piracy Law

monster slash

No, it’s not fanfic about Bigfoot & Yeti, together at last. Bobby “Boris” Pickett remakes “Monster Mash” to point out Bush’s slash & burn environmental policies. See monsterslash.org

Lyrics:

We were hiking in the forest late one night
When our eyes beheld an eerie sight
Our president appeared and began to frown
Then he and his friends cut the forest down.
(he did the slash)
they did the forest slash
(he did the slash)
it was brutally brash
(he did the slash)
public opinion was mashed
(he did the slash)
they did it for the cash

The lobbyists were having fun,
The horror party had just begun
The guests include big timber, big oil
Mining magnates and their sons.
These visions haunt me and fill me with disgust
If we don’t stop them our environment will be lost
So come on now and join me; I’m glad to show you how;
Tell our president to save our forests now.

oh, really, steve jobs?

“We think photos are the next big thing. Everyone has the content” because of the rapid proliferation of digital cameras among consumers “and there are no copyright issues,” Apple Chief Executive Steve Jobs said at a news conference. “We think music plus photos is the next big thing.”

— NYT, Apple Rolls Out New iPod Photo Capabilities, by Reuters, 6:42 pm ET, 2004-10-26

Oh really, Steve Jobs? No copyright issues with photos? Yeah — we’ll see.

subway preachers & showtunes

how fabulous — k. r. munson defeats subway preachers with showtunes:

(Note: This is not me. I just think it’s cool.)

(more…)

ip cites

6th Circuit sampling decision: Bridgeport [9/6] [law.com - Article]

reading & listening

Reading: Tower of Babel: The Evidence Against the New Creationism by Robert J. Pennock;

Music: Disco, “Carmen”, Chumbawamba, Judy Garland, “Red Hot + Blue” (Cole Porter covers), Ani DiFranco & Utah Phillips “Fellow Workers”, Klezmatics “I Ain’t Afraid” (cover of Holly Near song)