Arrr, I be the record/software industry and I be here to rape and plunder yer discs. -Nick
The music industry seems to be taking one step forward, and then promptly taking one thousand steps backward. In Universal Music Group v. Augusto, Universal Music Group (UMG) is suing someone for putting its promotional CDs for sale on eBay, seriously altering the standard view of what First Sale doctrine means.
At issue here is who owns the promo CDs. Universal argues strenuously that it never transferred ownership when it sent them out and that the discs are merely "licensed" to those who receive them. Each disc includes text that makes clear that "this CD is the property of the record company and is licensed to the intended recipient for personal use only." According to Universal...
...the label could recall the discs at any time (though it has never done so). In fact, even giving the discs away or tossing them in the trash constitute "unauthorized distributions."
The same plague afflicts software companies: They want to stretch their copyrights to ridiculous lengths. As defined by UMG (as well as most software EULAs), the digital good is "licensed, not sold," leaving the customer with a very temporary interest in their music (or software).
We've gotten used to the idea in software, but imagine if UMG decided to take back its music from you. You bought the CD years ago but UMG decides that it wants it back. According to its argument in this case, it has every right to recall the CD and you have zero right to retain it. Sound fair?
The music industry needs to regain consciousness and start looking for ways to profit from the obvious interest consumers have in its products. Pillaging those consumers is not the right way to go about it.
Monday, April 21, 2008
You think you know copyright?
Free mini-lesson in modern copyright law...just because I care. - Nick
http://www.webware.com/8301-1_109-9919707-2.html?tag=bl
Today on the Real Deal podcast, Tom and I interviewed Colette Vogele, attorney, Fellow at Stanford's Center for Internet and Society, and host of the Rules for the Revolution podcast. We started to cover the concept of copyright from the perspective of the content producer separately from that of the consumer, but found that the line between the two is increasingly fuzzy. We all consume content. But with digital technologies, almost every one of us also produces, copies, or otherwise mangles the content that we are consuming.
We talked with Vogele about this, and went over not just the legal doctrine that applies to digital content, but also some of the practical guidelines in dealing with infringement of rights (near the end). Play the podcast for this free lesson in modern copyright law.
http://www.webware.com/8301-1_109-9919707-2.html?tag=bl
Today on the Real Deal podcast, Tom and I interviewed Colette Vogele, attorney, Fellow at Stanford's Center for Internet and Society, and host of the Rules for the Revolution podcast. We started to cover the concept of copyright from the perspective of the content producer separately from that of the consumer, but found that the line between the two is increasingly fuzzy. We all consume content. But with digital technologies, almost every one of us also produces, copies, or otherwise mangles the content that we are consuming.
We talked with Vogele about this, and went over not just the legal doctrine that applies to digital content, but also some of the practical guidelines in dealing with infringement of rights (near the end). Play the podcast for this free lesson in modern copyright law.
Argentina considering going 100% open source
I don't have a problem...it's my culture to undervalue and rip-off software. - Nick
Argentina's congress is actively considering a bill that would require all government offices to use open-source software. It's partly a cost-saving move, and partly a way to bring the Argentine government into compliance with its software licensing:
The measure is sponsored by representative Marcelo Dragán as part of a national campaign against rampant software piracy in the South American country....
[T]he government itself is one of the worst copyright violators. The [Software Legal trade] association has pending lawsuits against several bureaucratic agencies, including the Secretariat of Tourism, the Federal Radio Committee and the Social Security Administration.
"It's a cultural issue, not a money issue," [Software Legal's president] insisted. "People just don't understand the value of software."
Rather than fight against the culture, the bill embraces it and opts for open-source software, which has its vendors charging for ancillary services and giving the software away. This makes sense. Yes, the government could invest millions in training its citizens to respect US copyright law. Or it could allow Microsoft to do the training for it.
It is taking a viable third way: Align software fees with true software value. Open source does a better job than any other software delivery mechanism in charging for value actually rendered.
Argentina's congress is actively considering a bill that would require all government offices to use open-source software. It's partly a cost-saving move, and partly a way to bring the Argentine government into compliance with its software licensing:
The measure is sponsored by representative Marcelo Dragán as part of a national campaign against rampant software piracy in the South American country....
[T]he government itself is one of the worst copyright violators. The [Software Legal trade] association has pending lawsuits against several bureaucratic agencies, including the Secretariat of Tourism, the Federal Radio Committee and the Social Security Administration.
"It's a cultural issue, not a money issue," [Software Legal's president] insisted. "People just don't understand the value of software."
Rather than fight against the culture, the bill embraces it and opts for open-source software, which has its vendors charging for ancillary services and giving the software away. This makes sense. Yes, the government could invest millions in training its citizens to respect US copyright law. Or it could allow Microsoft to do the training for it.
It is taking a viable third way: Align software fees with true software value. Open source does a better job than any other software delivery mechanism in charging for value actually rendered.
Publishers sue university over publication of class reading materials
Look who's cracking down! The academic publishing community fights back! This is a classic argument of fair use vs copyright. It'll be interesting to see the verdict. - Nick
A group of academic publishers filed a lawsuit against Georgia State University officials on Tuesday, alleging a systematic abuse of copyrighted works in the online distribution of coursework reading materials.
Cambridge University Press, Oxford University Press, and Sage Publications allege the university "facilitated, enabled, encouraged, and induced" professors to upload the copyrighted materials to its online system for students to download, without first obtaining the necessary permissions or paying licensing fees.
The lawsuit, filed in a U.S. District Court in Georgia, may mark the first time publishers have challenged universities over the electronic distribution of written copyrighted works, noted the plaintiffs' attorney.
"Our clients believe this is a widespread problem," said Bruce Rich, an attorney with Weil, Gotshal & Manges, who is representing the plaintiffs.
The problem first cropped up a couple years ago, noted Patricia Schroeder, head of the Association of American Publishers, of which the plaintiffs are members.
"A couple years ago, we noted a drop-off in universities seeking copyright permission as they shifted to the digital world," Schroeder said. "Even though technology changes, the law doesn't."
The publishers allege Georgia State University permitted its professors to reproduce vast amounts of copyrighted materials and combine them into course packets for students.
Although the problem of copyright infringement is believed to be widespread among colleges and universities, the majority of those institutions contacted by publishers generally cooperate and take steps to remedy the situation, Rich said.
The key issue for the publishers is harm to the market, Rich said. For example, he questioned whether professors would be able to continuing publishing their research, given the related costs involved, if their respective publishers were not compensated for providing the materials.
Although the reproduction of copyrighted materials is permitted under fair use laws, it's limited in the extent the materials that can be copied, such as excerpts verses chapters upon chapters, Rich noted.
A spokeswoman for Georgia State University declined to comment, noting the institution and the parties cited in the lawsuit have not yet been served with the complaint.
A group of academic publishers filed a lawsuit against Georgia State University officials on Tuesday, alleging a systematic abuse of copyrighted works in the online distribution of coursework reading materials.
Cambridge University Press, Oxford University Press, and Sage Publications allege the university "facilitated, enabled, encouraged, and induced" professors to upload the copyrighted materials to its online system for students to download, without first obtaining the necessary permissions or paying licensing fees.
The lawsuit, filed in a U.S. District Court in Georgia, may mark the first time publishers have challenged universities over the electronic distribution of written copyrighted works, noted the plaintiffs' attorney.
"Our clients believe this is a widespread problem," said Bruce Rich, an attorney with Weil, Gotshal & Manges, who is representing the plaintiffs.
The problem first cropped up a couple years ago, noted Patricia Schroeder, head of the Association of American Publishers, of which the plaintiffs are members.
"A couple years ago, we noted a drop-off in universities seeking copyright permission as they shifted to the digital world," Schroeder said. "Even though technology changes, the law doesn't."
The publishers allege Georgia State University permitted its professors to reproduce vast amounts of copyrighted materials and combine them into course packets for students.
Although the problem of copyright infringement is believed to be widespread among colleges and universities, the majority of those institutions contacted by publishers generally cooperate and take steps to remedy the situation, Rich said.
The key issue for the publishers is harm to the market, Rich said. For example, he questioned whether professors would be able to continuing publishing their research, given the related costs involved, if their respective publishers were not compensated for providing the materials.
Although the reproduction of copyrighted materials is permitted under fair use laws, it's limited in the extent the materials that can be copied, such as excerpts verses chapters upon chapters, Rich noted.
A spokeswoman for Georgia State University declined to comment, noting the institution and the parties cited in the lawsuit have not yet been served with the complaint.
On trial: Digital copyright law
WASHINGTON--The American Civil Liberties Union filed a lawsuit on Thursday in an attempt to overturn key portions of a controversial 1998 copyright law.
The suit asks a federal judge to rule that the Digital Millennium Copyright Act (DMCA) is so sweeping that it unconstitutionally interferes with researchers' ability to evaluate the effectiveness of Internet filtering software.
By suing on behalf of a 22-year-old programmer who's researching the oft-buggy products, the civil liberties group hopes to prompt the first ruling that would curtail the DMCA's wide reach.
After the DMCA was used to intimidate Princeton professor Ed Felten and his colleagues into self-censoring a presentation last year, the law became an instant magnet for criticism. But so far, every judge has upheld the DMCA's broad restrictions on the "circumvention of copyright protection systems."
This case will be different, the ACLU hopes, because it features a sympathetic plaintiff, Ben Edelman, and because it involves the socially beneficial act of critiquing software that is frequently used in public schools and libraries. Edelman had testified as an expert witness in a case the ACLU brought against a federal law that compelled public libraries to install filters.
"I did considerable work for them in preparation for the (Children's Internet Protection Act) lawsuit, and remained interested in the software," Edelman said. "I started thinking about how to make my research that much better. What became clear to me was that what I really needed, one way or another, was a way to get the entire block list."
Read the complete article at: http://www.news.com/2100-1023-946266.html
The suit asks a federal judge to rule that the Digital Millennium Copyright Act (DMCA) is so sweeping that it unconstitutionally interferes with researchers' ability to evaluate the effectiveness of Internet filtering software.
By suing on behalf of a 22-year-old programmer who's researching the oft-buggy products, the civil liberties group hopes to prompt the first ruling that would curtail the DMCA's wide reach.
After the DMCA was used to intimidate Princeton professor Ed Felten and his colleagues into self-censoring a presentation last year, the law became an instant magnet for criticism. But so far, every judge has upheld the DMCA's broad restrictions on the "circumvention of copyright protection systems."
This case will be different, the ACLU hopes, because it features a sympathetic plaintiff, Ben Edelman, and because it involves the socially beneficial act of critiquing software that is frequently used in public schools and libraries. Edelman had testified as an expert witness in a case the ACLU brought against a federal law that compelled public libraries to install filters.
"I did considerable work for them in preparation for the (Children's Internet Protection Act) lawsuit, and remained interested in the software," Edelman said. "I started thinking about how to make my research that much better. What became clear to me was that what I really needed, one way or another, was a way to get the entire block list."
Read the complete article at: http://www.news.com/2100-1023-946266.html
Tuesday, April 15, 2008
'Harry Potter' Author J.K. Rowling's Copyright Case: Behind All The Legal Jargon
This is a great article about copyright and fair use. It outlines the basics using a recent example where Harry Potter author J.K. Rowling sues the Harry Potter Lexicon for copyright infringement. The case is currently in courts. Should be interesting to discover the verdict. Read on.
-Nick
Case against 'The Harry Potter Lexicon' hinges on the doctrine of fair use — but what does that mean?
It's a setup that could find a place in "Harry Potter" itself: One is powerfully magical, learned in the ways of witchcraft and wizardry, in control of an empire that spans generations and continents. The other is a boyish figure, whose large, round glasses and mop of dark hair dominate a childish face.
It's unofficially a duel between the richest, most successful author in the world and a 50-year-old librarian, but the case of J.K Rowling v. RDR Books, now playing out in a federal court in New York, doesn't hinge on magical knowledge, superior weaponry or even powerful friends, but on a somewhat-complicated U.S. law known as the doctrine of fair use.
So what, exactly, is fair use, and why is Rowling arguing in court that "The Harry Potter Lexicon" breaks the guidelines established for it to work? And why can we quote liberally from "Harry Potter," at seeming random if I like ("Nitwit! Blubber! Oddment! Tweak!"), while Steve Vander Ark is being enjoined from doing what, at face value, appears to be the very same thing?
The answer lies in a piece of legislation only 30 years old and the four provisions it outlines as the foundation of fair use.
First, to understand the case, it's important to understand the basic principles of copyright law, a constitutional right that essentially grants artists and inventors exclusive rights to their writings and discoveries. As the author of the seven "Harry Potter" novels and their two companion books, that right, in this case, naturally belongs to J.K. Rowling.
But like most rights, even constitutional ones, that principle is not absolute. Under the Copyright Act of 1976, others are allowed to incorporate copyrighted materials "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research." When we quoted "Harry Potter" above, our use clearly fell into the category of "news reporting" and was therefore not a breach of copyright law.
The central issue of the court case is whether "The Harry Potter Lexicon," an encyclopedic reference of all things Potter, falls into any of the above categories as well.
To determine whether or not it does, the court will use four main guidelines:
1. The "purpose and character of the use." In simple terms, this boils down to an opinion on whether the work is "transformative," meaning, does it add to the culture's appreciation and/or knowledge of a work, or does it merely seek to supersede the original?
This is the point of contention most argued in the court case, with lawyers for Rowling insisting that "Lexicon" "takes too much and does too little." In other words, it adds little or no commentary or criticism.
By way of example, take our recent shot-by-shot analysis of "The Dark Knight" trailer and assume it wasn't for a news organization. The article was a second-by-second look at the trailer — there's not a copyrighted shot that we didn't describe in detail or, in some cases, pull for readers to view. But each shot was then obsessively dissected, and the hope, of course, was that we added to the discussion of the work while not superseding the original. Writing about the trailer didn't stop anyone from actually watching it.
Rowling's lawyers argue that "Lexicon" does not meet that burden, that it is in no way transformative but is merely derivative. It simply "rearranges the furniture of Rowling's novels," attorney Dale Cendali said in her opening statement.
The defense, meanwhile, argues that the value of the book far outweighs its use of copyrighted material.
Under this guideline, a judge may also take into account the profit motives of a particular work. Hence, the repeated questions in court Monday over whether "Lexicon" was more a money grab or a "passion" project.
2. The "nature of the copyrighted work." Is it fiction or nonfiction, published or unpublished? This guideline isn't particularly applicable in this case, as nobody argues, for instance, that Dumbledore or Harry Potter are in any sense "real."
In testimony Monday, Rowling touched on this when comparing a description she wrote of a "Chinese fireball" with one from "Lexicon," stating that it wasn't as if they were both describing giraffes. "It's not as if we are describing something that exists outside my imagination," she said.
Interestingly, under this guideline, if Rowling actually had a written copy of her long-promised "Harry Potter Encyclopedia," it might be afforded protection even though it was unpublished.
3. "The amount ... of the portion used in relation to the copyrighted work as a whole." How much of the whole text appears in the work? Generally speaking, the less you use, the more likely that it's fair use, but of course there are instances in which you can quote the entirety of something and get away with it.
At its most basic, this guideline asks whether or not a user takes only the material needed for his or her intended purpose. Vander Ark's purpose, of course, is to be a comprehensive compendium of all things Potter, so naturally he's going to be taking a lot.
4. What is the effect of the use on potential market value? Will the publication of "The Harry Potter Lexicon" take away from sales of "Harry Potter" or stop anyone from seeing the movie, buying toys or going to the soon-to-be opened theme park? Almost certainly not, of course. But it's an avenue Rowling's lawyers are exploring in earnest. This was especially evident in Rowling's testimony. "This trial has decimated my creative work over the last month," she said. "You lose the [plot] threads and worry whether you'll be able to pick them up again. Should my fans be flooded with a surfeit of substandard books — so-called lexicons — I'm not sure I'd have the will or heart to continue."
In consideration of this guideline, courts ask: Is the work a direct substitute? (It would be, if Rowling had written her own encyclopedia.) They also ask: Could potential harm exist beyond being a direct substitute? (It could if Rowling didn't write her own encyclopedia.)
Sunday, April 13, 2008
Creative Commons gains $4M grant, loses CEO Lessig
If you've never heard of "Creative Commons," I highly encourage you to check it out. This simple theory behind the entire organization is revolutionary and it's a topic I often try to stay in touch with. Check out a few of these materials to spark your interest. For those of you with ADD, they're videos.
-Nick
explaining the basics
http://youtube.com/watch?v=nazX7bybfHo&feature=related
cool video explaining the basics
http://youtube.com/watch?v=0FMnVIofuE0&feature=related
great walt disney reference
http://youtube.com/watch?v=JWR6eiiBhf8
-Nick
explaining the basics
http://youtube.com/watch?v=nazX7bybfHo&feature=related
cool video explaining the basics
http://youtube.com/watch?v=0FMnVIofuE0&feature=related
great walt disney reference
http://youtube.com/watch?v=JWR6eiiBhf8
Creative Commons, the nonprofit dedicated to reforming copyright in the digital age, said Tuesday it has received a $4 million grant from the William and Flora Hewlett Foundation.
Lessig founded Creative Commons in 2001 to combat what he saw as a rigid and outdated copyright system, encouraging the rejection of the traditional "all rights reserved" standard in favor of a "some rights reserved" alternative that would promote "creative reuse."
The money will bolster Creative Commons' five-year financial plan, which has also seen support or pledges of support from Google, Mozilla, Red Hat, and the Omidyar Network.
Out of the $4 million from the Hewlett Foundation, $2.5 million will go to the main Creative Commons organization over the next five years, and the remaining $1.5 million will go to its CCLearn education project.
Meanwhile, Lawrence Lessig, the organization's founder, a Stanford law professor, and a "free culture" advocate, is stepping down from his role as CEO of Creative Commons.
His replacement will be entrepreneur Joi Ito, who described himself to CNET News.com in 2006 as "sort of part-time entrepreneur, VC and nonprofit board member...(with) some writing, blogging, speaking and government policy work on the side."
Ito has been serving as chair of the Creative Commons board and will be replaced in that role by James Boyle, a current board member and a Duke law professor.
Lessig, who will remain on Creative Commons' board, made headlines earlier this year when he briefly considered a run for Congress. Though that effort was short-lived, Lessig soon thereafter launched an online-and-offline campaign called Change Congress. The new initiative's goal is to cast off the corporate influence on American politics, including lobbyists to big-money political action committees.
With his departure from Creative Commons, Change Congress will become Lessig's primary project. "Although I have changed my focus, I'm still very much committed to Creative Commons and the Free Culture cause," he said in a statement. "The work I intend to do with Change Congress is in many ways complementary to the work of Creative Commons. Both projects are about putting people in power and enabling them to build a better system."
While big tech players like Yahoo's Flickr and the OpenSocial Foundation are eager supporters, Creative Commons still has yet to gain true mainstream media acceptance.
Should software patents have shorter life spans than other patents?
I found this blog post from C/NET, 11 April 2008 and thought I'd share it with you. In a world of increasingly software dominated architecture, this could come into play.
The bottom line expressed here is that software patents are too long and need to be shortened. No one can even develop on the concept of certain software which leaves the world dominated by a particular software in any area. The arguments suggests that a copyright is enough protection for software developers. Especially, I would add, when technology and software demands grow exponentially everyday. By the time a 5 year patent would run out, the software would be practically null and void. This would allow other developers to expand on the obsolete concept to meet current needs. Just a thought.
- Nick
There are a lot of strong opinions with respect to software patents. Many people are highly critical of them because they feel that copyright alone is enough protection for software. The argument goes that copyright is a better fit than patent law.
The bottom line expressed here is that software patents are too long and need to be shortened. No one can even develop on the concept of certain software which leaves the world dominated by a particular software in any area. The arguments suggests that a copyright is enough protection for software developers. Especially, I would add, when technology and software demands grow exponentially everyday. By the time a 5 year patent would run out, the software would be practically null and void. This would allow other developers to expand on the obsolete concept to meet current needs. Just a thought.
- Nick
There are a lot of strong opinions with respect to software patents. Many people are highly critical of them because they feel that copyright alone is enough protection for software. The argument goes that copyright is a better fit than patent law.
For example, copyright is self-executing. That means that you get a copyright in your program as soon as you write it. In contrast, a patent is obtained only after filing and prosecuting - and in the process spending a lot of money on - a patent application.
Moreover, copyright is supposed to protect a specific expression - not broader ideas found in that expression. One major argument against software patents is, that in order to maintain the lightning pace of software innovation, developers must to be free to use general concepts pioneered by others so long as they don't copy the actual code.
It's basically a "square-peg-in-a-round-hole" type argument. That is, patents don't make sense for software because software is too different from the other things, like new chemicals and machines, that patents were originally designed to protect
Assuming there is a problem as some argue, maybe the solution is making patent law a better fit for software. One idea mentioned yesterday at the 23rd Annual Intellectual Property Law Conference of the American Bar Association was shortening the lifespan for software patents.
Currently, most patents last for twenty years from the date they were filed. At yesterday's conference, Judge Newman - who sits on the U.S. Court of Appeals for the Federal Circuit - commented that maybe a shorter lifespan of 5-6 years makes more sense for software patents.
That type of change would have to come from the legislature - not the court system. But Judge Newman's comment is still interesting. Given the short product life for software, does it make sense to shorten the patent life for software inventions?
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