Earlier this week, the AP reported, <a href=http://www.google.com/hostednews/ap/article/ALeqM5hEelqEVg29HYnIT2xdvtIQ7ABhswD953C65O0">Hasbro drops suit over Scrabble-clone Scrabulous: “According to documents filed in U.S. District Court in New York, Hasbro dropped the lawsuit Friday…. The court documents did not specify a reason for the withdrawal of the case.”
Previously: Scrabbled; Scrabulous-less
On Monday, The Wall Street Journal reported that Google, Lawrence Lessig and the incoming Obama administration all revised their position to no longer support a free and open internet, Google Wants Its Own Fast Track on the Web: “Google Inc. has approached major cable and phone companies that carry Internet traffic with a proposal to create a fast lane for its own content, according to documents reviewed by The Wall Street Journal. Google has traditionally been one of the loudest advocates of equal network access for all content providers.”
Richard Whitt, Google’s Washington Telecom and Media Counsel quickly responded, Net neutrality and the benefits of caching
“Despite the hyperbolic tone and confused claims in Monday’s Journal story, I want to be perfectly clear about one thing: Google remains strongly committed to the principle of net neutrality, and we will continue to work with policymakers in the years ahead to keep the Internet free and open.”
Larry Lessig, The made-up dramas of the Wall Street Journal: “I got off the plane from Boston to find my inbox filled with anger about an article in the Wall Street Journal. To those who were angry, I hope you will direct any anger at the Wall Street Journal after you read what follows.”
Talking Points Memo asked the Obama transition team about the President-elect’s position on net neutrality , Obama Spokesperson: His Commitment To Net Neutrality Hasn’t Wavered One Bit: “The Obama transition team is reaffirming his complete commitment to net neutrality and is disputing a much-discussed report today claiming that the President-elect is softening his support for it or shifting his position on it.”
The program that the WSJ writes about is an “edge-caching” system, where Google co-locates servers at internet service providers, so that there are fewer bottlenecks between the end users and popular data. The caching servers need only download once over the public internet and then redistribute that data multiple times over the faster connections over the “last mile” between the ISP and the end user. This is similar to what Akamai does.
It should be considered discrimination if one company is allowed to purchase access to end users while simultaneously purchasing the right to exclude or degrade the transmission of data from other competing publishers. If an ISP offers to co-locate caching servers for Microsoft or Yahoo or Netflix on an equal basis as Google, this should not be considered to violate open internet principles. If instead, an ISP offered the privilege of co-locating caching servers only to one highest bidder, then it would be discriminatory.
Does it constitute discriminatory internet service for any publisher to be able to buy more bandwidth than others? Should V.C.R. the video blogger be able to purchase a faster connection than Ed the e-mailer? If Google, Microsoft and Netflix transfer orders of magnitude more of data than Joe the blogger, should an ISP or backbone provider be prohibited from offering discounted bundles of bits to its high volume customers on an equal basis?
For Google to pursue competitive advantage for its services is a way to innovate over the open internet. Were Google to pursue these co-locating deals in a way that required its ISP partners to exclude Google’s competitors, then that could be considered non-neutral. If Google’s traffic between its central servers and edge servers were prioritized over other traffic.
More reactions:
Ed Felten, Three Flavors of Net Neutrality, “Part of the difficulty in this debate is that ‘net neutrality’ can mean different things to different people. At least three flavors of ‘net neutrality’ are identifiable among the Journal’s critics.”
David Isenberg, Bogus WSJ Story on Net Neutrality: “Net Neutrality only becomes an issue when a carrier picks and chooses which cache to supply pipes to.”
David Isenberg and his commenters discuss the net neutrality implications of some of the permutations of edge caching, What if I were wrong about edge-caching?
Timothy Lee, The Journal Misunderstands Content-Delivery Networks: “Unfortunately, the Journal seems to be confused about the contours of the network neutrality debate, and in the process it has mis-described the positions of at least two of the key players in the debate, Google and Lessig. Both were quick to clarify that their views have not changed.”
Frank Pasquale, Concurring Opinions, Frontiers of Net Neutrality: Recognizing the Bottlenecks: “Today’s WSJ article on Google’s alleged backsliding on net neutrality has spawned a lot of controversy on the web. Google has articulately defended the practices at issue in the article. But the piece does focus internet policymakers on some basic truths: there are many potential bottlenecks on the internet, and antitrust law alone cannot adequately regulate the power they confer.”
UCLA Law professor Doug Lichtman hosts The Intellectual Property Colloquium– a series of hour-long podcasts of conversations with leading legal thinkers about current issues in IP law.
Professor Lichtman writes, “The conversation is about the legal rules that apply when sites like Facebook, LinkedIn, and MySpace gather private information from their users. Does Facebook have any liability, for instance, if a user uploads some scandilous tidbit that turns out to defame someone else? What if Facebook uses that information to help its advertisers or indeed imbeds it in some advertising tool like Beacon? My guests are GW Law Professor Dan Solove (an expert on high-tech privacy issues and author of several pop-press books on point) and Santa Clara Law Professor (and former GC of epinions.com) Eric Goldman.”
And listeners can earn free CLE credit in NY and California now, with other jurisdictions coming in January.
Subscribe in iTunes.
Variety reports, Mayor of Batman sues WB, Nolan: “The mayor of an oil-producing city in southeastern Turkey, which has the same name as the Caped Crusader, is suing helmer Christopher Nolan and Warner Bros. for royalties from mega-grosser ‘The Dark Knight.’ Huseyin Kalkan, the pro-Kurdish Democratic Society Party mayor of Batman, has accused ‘The Dark Knight’ producers of using the city’s name without permission. ‘There is only one Batman in the world,’ Kalkan said. ‘The American producers used the name of our city without informing us.'”
In a large scale operation, a 14 page “July 4, 2009” edition of “The New York Times” was distributed around New York this morning. Is this parodic?
There’s also an Online version (which is not loading for me).
The Times reports on the spoof, Liberal Pranksters Hand Out Times Spoof: “In an elaborate hoax, pranksters distributed thousands of free copies of a spoof edition of The New York Times on Wednesday morning at busy subway stations around the city, including Grand Central Terminal, Washington and Union Squares, the 14th and 23rd Street stations along Eighth Avenue, and Pacific Street in Brooklyn, among others.
Romanesko posted a press release from the people behind the distribution, “In an elaborate operation six months in the planning, 1.2 million papers were printed at six different presses and driven to prearranged pickup locations, where thousands of volunteers stood ready to pass them out on the street.”
Gawker links this to the Yes Men, “The email address that sent out this message was linked to the site of The Yes Men, longtime liberal prank group that has been doing things just as complex and finely tuned as this for years. The Yes Men run the Because We Want It site, through which they set up this prank. They wanted to be anonymous for a while allegedly, but too late.” (The Yes Men site is not loading now.)
In addition to articles like “Bush Resumes Golf Game” and “High Speed Internet Hits Fast Track to Appalachia,” this edition of “All the News We Hope to Print” includes “ads” for Monsanto, KBR, ExxonMobil, DeBeers, GM, McDonalds, and New York subway advertising icon Dr. Zizmor.
Daniel Radosh, Obama’s first unforgivable act, “After eight years of the Onion and the Daily Show and Colbert and too many books and blogs to name, the old saw that liberals had no sense of humor had finally been banished. And then today, in the first big humor statement of the Obama era, the Yes Men produce a New York Times parody that actually parodies nothing but — quite unintentionally — dreary socialist agitprop.”
It’s hard to think about things non-electoral today, but today also happens to be the oral arguments in the Supreme Court for FCC v. Fox. The Court will be reviewing the FCC “fleeting expletive” standard for broadcast indecency.
The Second Circuit Court of Appeals ruled “the FCC’s new policy sanctioning ‘fleeting expletives’ is arbitrary and capricious under the Administrative Procedure Act for failing to articulate a reasoned basis for its change in policy.” Fox v. FCC
Transcript of the Oral Arguments for Fox v. FCC in the Supreme Court.
ScotusWiki has links to all of the briefs filed along with a preview of the case
Dahlia Lithwick reported on the oral arguments for Slate.com, The Supreme Court’s 100 percent dirt-free exploration of potty words, “Well, shit. There was supposed to be swearing. They swore like sailors when this case was argued in the 2nd Circuit. Judges and lawyers both! Those same judges swore themselves silly in the appellate opinion. Advocates swore (a lot) in the merits briefs. Promises were made. But today, in a case about how and when the FCC can regulate so-called ‘fleeting utterances’ of words like fuck and shit, the saltiest language comes when Solicitor General Gregory Garre, arguing for the FCC, warns that the agency had an obligation to guard against the possibility of ‘Big Bird dropping the F-bomb on Sesame Street.'”
The Progress and Freedom Foundation’s Adam Thierer attended the oral arguments and posted some thoughts, Supreme Court oral arguments in FCC v. Fox (General Thoughts): “Overall, however, I am concerned for the First Amendment after this morning’s arguments in the Supreme Court. We could get a close decision in favor of the FCC and the agency’s ongoing effort to expand content controls.”
Some more previews in the press:
David Savage, Los Angeles Times, On the Supreme Court docket: bleeeeeep, “At issue is the future indecency standard for television and radio. Will these broadcasts remain under strict federal regulation because a mass audience that includes children may be watching? Or will a looser standard prevail, giving broadcasters and audiences more choice in what they see and hear?”
William Triplett, Variety, Fox v. FCC heads to Supreme Court: “A decision in the so-called fleeting expletives case of Fox v. FCC, skedded for oral arguments Tuesday morning, could sharply cut back — maybe even eliminate — the Federal Communications Commission’s authority to police the airwaves for indecent content, experts say.”
Adak Liptak, The New York Times, Ideas and Trends – Must It Always Be About Sex?: “The Oxford English Dictionary’s three core entries on the word — noun, verb and interjection — are about six times as long as this article. That doesn’t count about 30 derivations and compounds, all colorful and many recent. The nimble word, the dictionary tells us, can help express that a person is incompetent; that another is not be meddled with; that a situation has been botched; that one does not have the slightest clue; and, in a recent addition, that someone has enough money to be able to quit an unpleasant job.”
Here are a couple of video links vaguely related to the mechanics of voting, without getting into the question of how well our elections are enabling democracy.
Mr. Rogers uses a mechanical lever voting machine:
In New York, we still use the lever machines. There is something especially satisfying about casting a vote by pulling the lever to record a vote using a system of gears. It’s a more tactile experience than using some touchscreen or optical scan systems.
And one from The Onion:
MTV requested that Weird Al censor the name of P2P file sharing sites Morpheus, Grokster, Limewire and Kazaa from his 2006 video. The New York Times reports, Censorship, or What Really Weirds Out Weird Al – NYTimes.com: “In an e-mail message on Sunday, Mr. Yankovic wrote that he had bleeped out the names to the file-sharing sites in his song two years ago, after MTV ‘told me that they would refuse to air my video’ otherwise. ‘Instead of subtly removing or obscuring the words in the track,’ he wrote, ‘I made the creative decision to bleep them out as obnoxiously as possible, so that there would be no mistake I was being censored.'”
Google announces that it settled with the Association of American Publishers, who sued the search engine company in 2005 over its plan to scan and index books that are still protected by copyright. Official Google Blog: New chapter for Google Book Search: “This agreement is truly groundbreaking in three ways. First, it will give readers digital access to millions of in-copyright books; second, it will create a new market for authors and publishers to sell their works; and third, it will further the efforts of our library partners to preserve and maintain their collections while making books more accessible to students, readers and academic researchers.
Here’s the text of the Settlement Agreement
Joe Gratz has more details about the settlement, Settlement Reached in Authors Guild v. Google
And here are some collected reactions from around the web.
Professors and Practitioners:
Larry Lessig, On the Google Book Search agreement: “This is a good deal that could be the basis for something really fantastic. The Authors Guild and the American Association of Publishers have settled for terms that will assure greater access to these materials than would have been the case had Google prevailed.”
James Grimmelmann, The Laboratorium: Author’s Guild Settlement Insta-Blogging: “The result of the settlement will be to give Google a license to keep on doing what it’s doing, while allowing the authors to use their now-sharpened knives to sue anyone else who tries to do the same. At that point, of course, Google would be delighted for the authors to succeed, since it keeps the competition at bay.”
Neil Netanel, Balkinization , Google Book Search Settlement: “So in many ways the proposed settlement is a win-win-win-win (for Google, the copyright holders, the libraries, and the public). But there are some causes for concern as well. Perhaps most importantly, the settlement leaves undecided the issue of whether Google’s scanning of the entire books and display of snippets is a fair use. Many observers, including me, believed that the courts would ultimately hold that it is a fair use, and thus set important precedent establishing that such ‘transformative uses’ of copyrighted works — uses that serve the shared goals of copyright and the First Amendment — do not infringe copyright.”
Mike Madison, On Google Book Search: ” The proposal offers a new and larger set of questions, questions that have surrounded Google generally for some time but that the proposal puts into more concrete focus: Are we seeing the early stages of the beginning of the end of copyright law as we know it?”
Susan Crawford, Google settlement: Changing Defaults: “Yesterday’s settlement agreement is remarkable in many ways. It’s a proposed settlement of a civil, private lawsuit, but the agreement feels public. It affects an entire industry, not just the parties concerned. It sets up a new kind of special-purpose collective rights association (h.t. James Grimmelmann), like ASCAP or BMI. Instead of Google acting to create access to a great library of books, it seems to point to the creation of a tremendous bookstore. Perhaps that’s the same thing, but it’s worth thinking about the changed default settings that this arrangement creates.”
Siva Vaidhyanathan, The Googlization of Everything, My initial take on the Google-publishers settlement: “this settlement, if it goes through, dodges that great copyright meltdown that I had feared. I did not want to see Google lose this suit in court. And I was confident it would. Google lawyers assured me that they were even more confident they would prevail. And they are smarter than I am. But clearly both sides saw real risk in continuing toward a courtroom showdown.”
C.E. Petit, Scrivener’s Error: “On balance, I think this settlement is not in anybody’s best interests… but, as usual, the actual creators of content will be screwed most thoroughly.”
Lobbying Groups:
Arts+Labs (Current members include AT&T, Viacom, NBC Universal, Cisco, Microsoft and the Songwriters Guild of America), Arts+Labs Statement on the Google Settlement with American Association of Publishers, “This settlement shows that creators’ rights and consumer benefit can go hand-in-hand in the Internet age. It is a victory for consumers and creators alike. The agreement demonstrates that collaboration between the technology community and the creative community can give consumers access to a wealth of resources while also preserving copyright owners’ right to control how their work is distributed online and to earn fair compensation for their creativity.”
Patrick Ross, The Copyright Alliance, A Good Day for Authors: “It is refreshing to see we are finally where we should have been several years ago, developing a marketplace solution that allows copyright owners to grant access in return for compensation and allows those seeking access to written works to obtain it. I should also note that the libraries above participated in the talks and thus are presumably satisfied at the access this agreement gives to their patrons and others interested in access to works both copyrighted and public domain.”
Reporters:
New York Times, Google Settles Suit Over Book-Scanning: “Google plans to take 37 percent of the revenue, leaving 63 percent for publishers and authors. If Google sells ads on pages where previews of scanned books appear, it will split the revenue on the same basis.”
Chris Snyder, Wired, Google Settles Book-Scan Lawsuit, Everybody Wins: “Google’s settlement of a three-year old lawsuit challenging its Book Search program, which scans books and make portions available online, creates a new revenue stream for authors and publishers (and itself) — but the financial benefits are dwarfed by the clear field the company now has to complete an ambitious program to create a global digital library.”
Jessica Guynn, LA Times, Google settles copyright dispute with publishers and authors: “If approved by a Manhattan federal court judge next summer, the settlement has the potential to revolutionize the publishing industry by creating a giant online marketplace that would dramatically increase the volume of literature available to readers and researchers — while compensating authors and publishers.”
Rob Hof, Business Week, Google Settles Book Search Lawsuits with Authors, Publishers: “As a book lover, what I find the coolest thing about the deal is that eventually, I’ll be able to visit most any library and, using at least one terminal that will be set up at each library, view digital versions of these books for free (though I’ll have to pay to print out pages). It’s nice that all the sides managed to agree on something that is demonstrably a good thing for all of us.”
Previously:
… for political satire.
NewTeeVee reports: Super Bowl Ads of Yore Revamped for ’08 Election: “Now, with the election just a week away, we’ve come full circle with two more ads from Super Bowls past revamped for online political purposes. Office Linebacker ‘Terrible’ Terry Tate has returned to put the hurt on fools who don’t vote, while the ‘Wassup’ guys guys have suffered every great malady our nation has gone through over the last eight years.”
Wall Street Journal, ‘Whassup’ Comes Out for Obama – WSJ.com: “The parody is raising eyebrows in ad circles, partly because Budweiser’s maker, Anheuser-Busch, can’t do much to stop it. In a departure from normal industry practice, neither Anheuser nor its ad firm, Omnicom Group’s DDB Chicago, own the Whassup slogan or concept. Instead, the brewer paid Mr. Stone roughly $37,000 to license the idea for five years. That deal expired three years ago, says Mr. Stone, who appeared with his buddies in several of the Budweiser Whassup ads.”
On Monday, October 6, the Future of Music Coalition is holding a session on sampling and licensing at the Public Theater here in NYC: Creative License. Preceding that event is a seminar on What’s the Future for Musicians.
In what is likely to be the most magical copyright case to come to the Southern District of New York this year, US District Judge Robert Patterson ruled in favor of Warner Brothers and J.K Rowling against RDR Books, finding that the publisher of the Harry Potter Lexicon infringed on the plaintiffs’ copyrighted expression in the collected Harry Potter works. Warner Bros. Entertainment, Inc. v. RDR Books
While a victory for the original author, this case does provide useful guidance for future reference guides to fictional works on how to create a guide that will be considered fair use.
The key issue that the court has with the Lexicon is the extent to which it borrows language directly from the original Harry Potter novels and companion books. The court writes, “Although it is difficult to quantify how much of the language in the Lexicon is directly lifted from the Harry Potter novels and companion books, the Lexicon indeed contains at least a troubling amount of direct quotation or close paraphrasing of Rowling’s original language. The Lexicon occasionally uses quotation marks to indicate Rowling’s language, but more often the original language is copied without quotation marks, often making it difficult to know which words are Rowling’s and which are Vander Ark’s. … Although hundreds pages (sic) or thousands of fictional facts may amount to only a fraction of the seven-book series, this quantum of copying is sufficient to support a finding of substantial similarity where the copied expression is entirely the product of the original author’s imagination and creation.”
Invented facts– such as the properties of a boggart— constitute creative expression protected by copyright. Each “fact” reported by the Lexicon is actually expression invented by Rowling. Reproducing original expression in fragments or in a different order, however, does not preclude a finding of substantial similarity. However, the Lexicon’s rearrangement of Rowling’s fictional facts does not alter the protected expression in a way that the Lexicon ceases to be substantially similar to the original works.
The court finds that the Lexicon is not an infringing derivative work because it is not sufficiently creative to be a derivative work. “By condensing, synthesizing, and reorganizing the preexisting material in an A-to-Z reference guide, the Lexicon does not recast the material in another medium to retell the story of Harry Potter, but instead gives the copyrighted material another purpose.” In a footnote, the court goes on to note that this is the key difference between derivative works which are infringing and works of fair use, which are permissible.
The defendants raise the defense that the Lexicon is a fair use of material from the Harry Potter books, but the court rules that the Lexicon is insufficiently transformative to be a fair use. “The purpose of the Lexicon’s use of the Harry Potter series is transformative. Presumably, Rowling created the Harry Potter series for the expressive purpose of telling and entertaining and thought provoking story centered on the character Harry Potter and set in a magical world. The Lexicon, on the other hand, uses material from the series for the practical purpose of making information about the intricate world of Harry Potter readily accessible to readers in a reference guide. … Because it serves these reference purposes, rather than the entertainment or aesthetic purposes of the original works, the Lexicon’s use is transformative and does not supplant the objects of the Harry Potter works.” The Lexicon’s use of material from the companion books, which started life off in encyclopedic form, does add value by “adding a productive purpose to the original material,” it is transformative “to a much lesser extent” since it largely supplants “the informational purpose of the original works.”
“While not its primary purpose, the Lexicon does add some new insight, of whatever value, as to the Harry Potter works.”
“The transformative character of the Lexicon is diminished, however, because the Lexicon’s use of the original Harry Potter works is not consistently transformative. … Perhaps because Vander Ark is such a Harry Potter enthusiast, the Lexicon often lacks restraint in using Rowling’s original expression for its inherent entertainment and aesthetic value.” The inconsistent use of diligent citations by the Lexicon contributes to a lack of transformative character in those instances where its value as a reference guide lapses.
Weighing most heavily against Defendant on the third factor is the Lexicon’s verbatim copying and close parahprasing of language form the Harry Potter works. In many instances, the copied language is a colorful literary device or distinctive description.… The Lexicon’s verbatim copying of such highly aesthetic expression raises a significant question as to whether it was reasonably necessary for the purpose of creating a useful and complete reference guide.
“Additionally, the fourth factor favors Plaintiffs if publication of the Lexicon would impair the market for derivative works that Rowling is entitled or likely to license. Although there is no supporting testimony, one potential derivative market that would reasonably be developed or licensed by Plaintiffs is use of the songs and poems in the Harry Potter novels. Because Plaintifs would reasonably license the musical production or print publication of those songs and poems, Defendant unfairly harms this derivative market by reproducing verbatim the songs and poems without a license.”
The court confirms that it should be possible to write a guide to a series of novels that does qualify as a fair use, by lifting less of the language directly.
“Notwithstanding Rowling’s public statements of her intention to publish her own encyclopedia, the market for reference guides to the Harry Potter works is not exclusively hers to exploit or license, no matter the commercial success attributable to the popularity of the original works. The market for reference guides does not become derivative simply because the copyright holder seeks to produce or license one.… Furthermore, there is no plausible basis to conclude that publication of the Lexicon would impair sales of the Harry Potter novels… reading the Lexicon cannot serve as a substitute for reading the original novels; they are enjoyed for different purposes. The Lexicon is thus unlikely to serve as a market substitute for the Harry Potter series and cause market harm.…
“In striking the balance between the property rights of original authors and the freedom of expression of secondary authors, reference guides to works of literature should generally be encouraged by copyright law as they provide a benefit readers and students; but to borrow from Rowling’s overstated views, they should not be permitted to ‘plunder’ the works of original authors ‘without paying the customary price,’ lest original authors lose incentive to create new works that will also benefit the public interest.”
Other links and commentary:
Michael Madison, madisonian.net Eyes on the Fair Use Prize: “The interesting half of the opinion, from my point of view, is the treatment of the fair use argument. In effect, and without belaboring a critique of the full opinion, the court decided that the Lexicon, while alleged to be a work of scholarship, wasn’t scholarly enough.”
Derek Bambauer, Info/Law, Rowling 1, Lexicon 0: “This case tees up hard copyright questions. What is the boundary of the term of art ‘derivative work’? How broad should an author’s control be over secondary, non-scholarly works treating her expression? How should courts deal with inventorying of ‘fictional facts’? This opinion resolves some of these questions in the Lexicon case, but I feel less certain it answers them for future plaintiffs.”
Scrivener’s Error, Harry Potter and the Copyright Infringement: “Contrary to the whingeing (and outright screaming) that you’re going to hear, this is not a rejection of fair use as a concept. It is, instead, limited to the particular facts that were presented to Judge Patterson for this matter.”
David Ardia, Citizen Media Law Project, Judge Rejects Fair Use Defense in Harry Potter Lexicon Case, J.K. Rowling Recovers Her Plums: “So what are we to make of the court’s lengthy exposition on fair use? As I already noted, Judge Patterson’s framing of the facts seems to have dictated how his fair use analysis would come out. Nevertheless, there is some good news in the opinion for fair use advocates.”
NY Times, Rowling Wins Lawsuit
Against Potter Lexicon: “For seven years, a Harry Potter fanatic worked on a guidebook to J. K. Rowling’s best-selling series, but in the end, a federal judge ruled on Monday, his book was too close to the work he admired.”
The New York Times, Art Purchases Lead to Lawsuits Following Cruise Ship Auctions: “When most people think of art auctions, they think of Christie’s or Sotheby’s in New York or London, not a cruise ship. But over the last two decades, auctioning ‘fine art’ on cruises, often to first-time bidders who have never met a reserve or inspected a provenance, has become big business.”
Law.com, Cruise Passengers Claim Gallery Short-Changed Them During Voyage: “He ended up buying two works on a two-week cruise aboard Celebrity Cruise Lines’ Constellation in June 2007. Bouverat said he was told the print and painting he purchased from Park West Gallery were worth about $15,000 apiece. He paid a total of $20,520. Once on land, he says he learned the Miro print was almost worthless, akin to poster art. The other piece was a painting of a clown playing a guitar by Anatole Krasnyansky. Bouverat said Krasnyansky appears to work exclusively in a stable of artists for Southfield, Mich.-based Park West, which bills itself as ‘America’s premier art dealer.'”
More links available at the Art Law Blog: At Sea (UPDATED)
Michael Madison, Madisonian, has a thoughtful look on the Scrabulous and the online reaction, The Stakes of Scrabulous, “Still, on balance, I think that Hasbro deserves a win if the case were litigated to judgment; the name ‘Scrabulous’ would likely be found to be confusingly derivative of ‘Scrabble,’ and the boards do resemble one another, though they are hardly identical. Still, if the producers of Scrabulous changed the name to ‘CrosswordMania’ and changed the color scheme of the Board, then they would be on safer ground. Not to say safe ground altogether, but safer. Hasbro’s IP rights don’t extend to the idea of online crossword games.”
In its complaint against the Scrabulous developers, Hasbro describes the Scrabble board:
- The SCRABBLE® playing board has bonus squares that give the player who puts a word on them double or triple letter scores and double or triple word scores. The square are colored, marked, and arranged as shown in Exhibit 1.
A. The center square is rose colored with a black star and the first player to take his or his turn receives a score that is double the value of the tiles.
B. The 4 corner squares and the 4 squares that are mid-way along each side (that is, that are 7 squares from the corners) are deep red in color and are labeled and award the player a “triple word score.” There are 8 total “triple word score” squares.
C. Starting with the tile diagonally closer to the middle of the board for each corner “triple word score” square, the next four squares diagonally toward the center of the board are rose in color and are labeled “double word score.” There are 16 total “double word score” squares.
D. “Triple letter score” squares are dark blue and “double letter score” squares are light blue. They form an “X” pattern through the center of the board and pyramid shapes off the sides of the board with the dark blue “triple letter score” squares forming the outer points of the “X” and the second level of the pyramids. There are 12 dark blue “triple letter score” squares and 24 light blue “double letter score” squares.
Here is a Scrabble game:
This is a Scrabulous game:
Here is what the licensed version of Scrabble on Facebook looks like. Note that the colored squares are different colors than the board game. What does this mean as far as the distinctiveness of the Scrabble trade dress?
What about a game that shares the word list and tile distribution and number of places on the board, but has a different look and places the bonus squares in different locations on the board? What if this game is configurable by the user and gives the game players the option to set it up like a Scrabble board but doesn’t offer the Scrabble setup as a preset?
That’s what the creators of Scrabulous have done with their new game, WordScraper. Is there any likelihood of confusion here? Copying?
I was too busy playing Scrabulous last week to blog about the complaint filed by Hasbro against the creators of Scrabulous, the online word game that happens to share the board layout and rules of play of Scrabble.
Complaint in Hasbro v. RJ Softwares (08cv06567, NYSD filed Jul. 24) for copyright infringement, trademark infringement, trademark dilution and common law unfair competition.
In addition, Hasbro served Facebook with a DMCA takedown notice.
Facebook forwarded the takedown notice to the Scrabulous developers who prevented access to the application for addicts users in the US and Canada.
In the NY Times Bits Blog, Brad Stone reports Hasbro Notches Triple-Word Score Against Scrabulous With ‘Lawsuit’: “‘Hasbro has an obligation to act appropriately against infringement of our intellectual properties,’ said Barry Nagler, Hasbro’s general counsel, in a statement. “We view the Scrabulous application as clear and blatant infringement of our Scrabble intellectual property, and we are pursuing this legal action in accordance with the interests of our shareholders, and the integrity of the Scrabble brand.'”
Wendy Seltzer argues that a game like Scrabble is not a sufficiently creative form of expression to be copyrightable. Scrabbling for Legal Rationalism: No Copyright for Games: “So the ‘methods of operation’ — the rules of the game, should be uncopyrightable no matter how intricate. Their particular expression in an elegantly written manual may be protected, but another is free to extract the underlying ideas and rewrite the manual to describe an identically played game.”
At Madisonian, Frank Pasquale also wonders about whether copyright protects the Scrabble board, but that the similarity between the marks seems like to lead to a likelihood of confusion, Absolutely Scrabulous: “But that still leaves the elephant in the room%u2013the substantial similarity between Scrabulous and the mark Scrabble. But in keeping with the theme of this post (of pushing defenses here to the breaking point)%u2013could Scrabble be generic? I know that%u2019s doubtful, but I also have a sense that there is no other way that people refer to the %u201Cgame that involves seven lettered tiles played for points on a board that includes double and triple letter and word scores.%u201D On the other hand, if you asked the %u201Cman on the street%u201D if Scrabble is the name of a word game or the name of trademark for a company%u2019s (version of a) word game, it seems like the latter interpretation is at least as likely as the former for someone with an elementary knowledge of the law.”
More than anything in the short term, the takedown will be the best promotion for Hasbro to drive traffic to the licensed Scrabble application (which, surprisingly, is dreadfully slow and ugly compared with the simple and relatively elegant Scrabulous application.)
The New York Times reports on the use of search engine data to establish community standards for web sites, What’s Obscene? Google Could Have an Answer: “In the trial of a pornographic Web site operator, the defense plans to show that residents of Pensacola are more likely to use Google to search for terms like ‘orgy’ than for ‘apple pie’ or ‘watermelon.’”
The Times also reports that most of the buyers of Grand Theft Auto found it acceptable that the violent, mature-rated video game include hidden sex scenes and chose not to file for a claim in a class action settlement. Hidden Sex Scenes Draw Ho-Hum, Except From Lawyers: “Lawyers who sued the makers of the video game Grand Theft Auto: San Andreas profess to be shocked, simply shocked, that few people who bought the game were offended by sex scenes buried in its software. Any buyer upset about hidden sex in the violent game could file a claim under a settlement the lawyers struck with the game’s maker, Take-Two Interactive. Of the millions of people who bought the San Andreas version after its release in 2004, exactly 2,676 filed claims.”
And, not really related, the state of Kentucky will filter blogs on its computers under the same standard it treats all other websites. Greg Beck writes at Internet Cases, Kentucky settles banned blogger’s First Amendment challenge to Internet filtering policy: “Political blogger Mark Nickolas yesterday settled his lawsuit against Kentucky, in which he challenged the state’s policy of blocking blogs on state-owned computers. The settlement provides that Kentucky will no longer target websites for restriction just because they are blogs, and will instead treat them in the same way it treats other websites with similar content. In other words, classifying a website as a ‘blog’ is no longer a good enough reason to ban a site on the state’s computers.”
NPR reports on the Chinese groups using P2P to distribute subtitled versions of American TV shows: Chinese Fans Follow American TV Online – for Free: “Han says they can download untranslated versions of the American shows from the peer-to-peer file-sharing site BitTorrent as soon as 10 minutes after new episodes air in the U.S. Then they find closed-captioned scripts in English; those also turn up online shortly after the show airs. The captioned scripts are the raw material. Han says they take those scripts and turn them into creative Chinese translations.”
Previously: Perestroika by Piracy
The New York Times reports on the passing of George Carlin, George Carlin, 71, Irreverent Standup Comedian: “Mr. Carlin was hailed for his poignant observations on the absurdities of everyday life in routines like ‘Seven Words You Can Never Say on Television.'”
A broadcast of the “Seven Words” routine brought to the Supreme Court the question of whether the First Amendment allows the FCC to regulate broadcasts of speech that is merely indecent. FCC v. Pacifica Foundation, 438 U.S. 726 (1978).
David Oxenford, Broadcast Law Blog, George Carlin – Writing the Indeceny Rules the FCC Never Did: “Perhaps the greatest misimpression of the Carlin routine is the widely held belief that there are in fact Seven Dirty Words that you can never say on the air. In fact, that is not and has never been the FCC’s holding. In fact, until recently, there were no words that were specifically banned on the air – all had to be evaluated by context.”
New York Times, The Feisty Station That Defended Carlin’s ‘Seven Words’ Looks Back: “In a 1978 milestone in the station’s contentious and unruly history, WBAI lost a 5-to-4 Supreme Court decision that to this day has defined the power of the government over broadcast material it calls indecent.”
Bruce Schneier, The War on Photography: “What is it with photographers these days? Are they really all terrorists, or does everyone just think they are?
Given that real terrorists, and even wannabe terrorists, don’t seem to photograph anything, why is it such pervasive conventional wisdom that terrorists photograph their targets? Why are our fears so great that we have no choice but to be suspicious of any photographer?”
Serious Eats, On Banning Photography from Restaurants: “It’s not hard to relate to Chang’s position on Ko; from the minute the place opened, it was overrun by camera-toting food-porn obsessives wanting to capture the joy of a meal at the best new restaurant in the city. But if you ask me, an outright ban is entirely unfair. No photos of the chefs? Sure. No photos of other people in the restaurant? Well, of course. Don’t use a flash? Naturally, that’s rude.”
Here are some more links to pieces discussing the orphan works problem in general along with specific criticisms of the Orphan Works Act of 2008.
Gigi Sohn, Public Knowledge, The Orphan Works Act of 2008: Copyright Reform Takes Its First Steps: “Why do we have all of these orphan works in the first place? We have them because starting in 1978, copyrighted works no longer needed to be registered to get the full protection of copyright law. The consequence of this automatic copyright has been that it has become very difficult to find who owns the rights to a particular work. Even when works are registered, sometimes the owner is a company that goes out of business, or an individual who dies, or sometimes the registration is never updated. If you are a person or institution that wants to use a work under copyright but cannot find the owner, even after a thorough search, you are out of luck — current copyright law provides the same onerous damages whether you are a good faith actor or a pirate. And these damages can range anywhere from $750 to $150,000 per infringement. So nobody takes the risk that the copyright owner will show up and drag him to court. As a result, orphan works are relegated to the dustbin of our culture.”
Nancy Prager, Fundamentals of Copyright and the Problem with Lost Owners: unintended consequences: “Unfortunately, the proposed bill fails to offer the original creators of a work any protections related to: 1) the right to make decisions about whether their work can be used; 2) payment; and 3) attribution. In fact, the legislation — which doesn’t even mention creators — could override contract terms that have been spelled out between a creator and a record label.”
Carolyn Wright, Photo Attorney, They Still Don’t Get It: “While it is true that OW does not make registration with the private registries mandatory, registration will be required if photographers want the same protection for their works as they have now. Specifically, for those photographers who register their photos with the Copyright Office, they also would have to register with the private registeries to rebuff a potential OW defense and thus be eligible for statutory damages, the primary weapon that creatives have to fight infringements.”
Donn Zaretsky, The Art Law Blog, On Not Getting It: “There are reasonable grounds for opposing the legislation, and I’ve discussed some of them here before. But it seems pretty clear to me that the creation of a new private registry that would make it easier to find authors who want to be found is simply not one of them.”
Susan Scafidi, Counterfeit Chic, Orphan Works and the Adoption Process: “While many agree that the basic idea has merit, the reality is somewhat more complicated. After almost two decades of telling creators that they don’t have to do anything to receive protection, is it fair to penalize them for not showing up in the Copyright Office’s searchable records? What’s a ‘diligent effort’ to find a copyright holder? What’s ‘reasonable compensation’ if the copyright holder turns up later? And — perhaps most relevant to the apparel industry — what about the difference between the kinds of works on which it’s easy to display copyright notice (a book, for example) and the kinds of works that often don’t bear the author’s name (like a printed textile that’s been cut and sewn into a garment)?”
Dan Lewis suggests going even further and that online publishers should have bear the burden of taking an action to maintain copyright in abandoned works, Copyright and the Duty to Maintain “In the digital age, with content available over the Web, why put all the burden on the subsequent user of the content? Instead, let’s shift the burden on the rights-holder to, in the very least, maintain his content and/or contact information”
Here’s an Ask Metafilter post looking for assistance with a real-life example of an orphan work issue– a willing licensee unable to find the copyright owner in order to obtain a license, I can has copyright permission?: “I am now in the position where I would like to obtain permission to reuse an image, but am having a hell of a time tracking down the copyright owner.”
Previously: Working on Orphan Works
Glenn Greenwald, Salon.com, George Bush’s latest powers, courtesy of the Democratic Congress: “I’ve now just read a copy of the final ‘compromise’ bill. It’s even worse than expected. When you read it, it’s actually hard to believe that the Congress is about to make this into our law. Then again, this is the same Congress that abolished habeas corpus with the Military Commissions Act, and legalized George Bush’s warrantless eavesdropping program with the ‘Protect America Act,’ so it shouldn’t be hard to believe at all. Seeing the words in print, though, adds a new dimension to appreciating just how corrupt and repugnant this is.”
Users of text messaging services have a Fourth Amendment reasonable expectation of privacy in the contents of the text messages stored on the service provider’s network. Quon v. Arch Wireless Operating Company (9th Cir. Jun. 18, 2008). Analysis from Orin Kerr.
What’s the hottest stop on the indie rock touring circuit? It might be the halls of Congress. From The A.V. Club, Random Rules: Jonathan Coulton: “I actually ran into OK Go in the basement of the Senate building in Washington D.C. I was being walked around to various congressional staffers to talk about digital freedom. I was there on behalf of the Digital Freedom Campaign, and they walked me around. We had a bunch of meetings, talked to Congresspeople about what they could do to keep the bits flowing as easily as possible, and why it was important to independent musicians like me. OK Go was there because they were also speaking as part of some hearing, and I ran into them in the basement of the Senate building”
Michael Piatek, Tadayoshi Kohno, Arvind Krishnamurthy, Challenges and Directions for Monitoring P2P File Sharing Networks or Why My Printer Received a DMCA Takedown Notice: “The focus of this paper is to examine the tension between P2P users and enforcement agencies and the challenges raised by an escalating arms race between them. We ground this work in an experimental analysis of the methods by which copyright holders currently monitor the BitTorrent file sharing network. Our work is based on measurements of tens of thousands of BitTorrent objects. A unique feature of our approach is that we intentionally try to receive DMCA takedown notices, and we use these notices to drive our analysis.”
Freedom to Tinker: Study Shows DMCA Takedowns Based on Inconclusive Evidence: “The existence of erroneous takedowns is not news — anybody who has seen the current system operating knows that some notices are just wrong, for example referring to unused IP addresses. Somewhat more interesting is the result that it is pretty easy to ‘frame’ somebody so they get takedown notices despite doing nothing wrong. Given this, it would be a mistake to infer a pattern of infringement based solely on the existence of takedown notices. More evidence should be required before imposing punishment.”
Catherine Rampell, Chronicle of Higher Education: How It Does It: The RIAA Explains How It Catches Alleged Music Pirates: “Here’s how the process works: The RIAA maintains a list of songs whose distribution rights are owned by the RIAA’s member organizations. It has given that list to Media Sentry, a company it hired to search for online pirates. That company runs copies of the LimeWire program and performs searches for those copyrighted song titles, one by one, to see if any are being offered by people whose computers are connected to the LimeWire network. For popular songs, the search can turn up dozens, if not hundreds, of hits. A search on Madonna’s latest release, ‘4 Minutes,’ turned up more than a hundred users trading various copies of the song.”
JA Apparel Corp. v. Abboud (SDNY, June 5, 2008)
Ron Coleman, Likelihood of Confusion, Mad Abboud you: “It’s worth taking a look at because just reading the bare-bones fact pattern of it above, this doesn’t look like a hard case. But perhaps the juicy part of it slowed things down — such as how Abboud, not unsurprisingly for those creative types, showed up at JA Apparel after they’d bought his name lock and stock and barrel (more below) along with his clothing line and promptly found himself ‘unable’ to work with the company due to, yup, creative differences.”
Rebecca Tushnet, 43(B)log, jaz hands: Joseph Abboud loses name to company he sold: “In a long and thorough decision, the magistrate judge concluded that noted fashion designer Joseph Abboud had transferred all rights to use his name in a commercial manner to JA Apparel, a menswear label he launched in 1987. He sold the label in 2000 for $65.5 million, along with the associated names, trademarks, etc., including ‘Joseph Abboud,’ ‘designed by Joseph Abboud, ‘JOE,’ ‘JA,’ and similar or derivative terms.”
Wall Street Journal, Abboud Loses Trademark Case: “A federal judge ruled that menswear designer Joseph Abboud, who sold his trademark and later left the company that owns it, can’t use his name to promote a new line he calls ‘jaz.”
Here are a couple of articles (and a response) about the history, impact and future of the internet and WWW.
Vanity Fair, How the Web Was Won, “Vanity Fair set out to do something that has never been done: to compile an oral history, speaking with scores of people involved in every stage of the Internet’s development, from the 1950s onward. From more than 100 hours of interviews we have distilled and edited their words into a concise narrative of the past half-century—a history of the Internet in the words of the people who made it.”
Nick Carr gets bored easily, blames the web in general and Google in particular. Is Google Making Us Stupid? “Over the past few years I’ve had an uncomfortable sense that someone, or something, has been tinkering with my brain, remapping the neural circuitry, reprogramming the memory. My mind isn’t going—so far as I can tell—but it’s changing. I’m not thinking the way I used to think. I can feel it most strongly when I’m reading. Immersing myself in a book or a lengthy article used to be easy. My mind would get caught up in the narrative or the turns of the argument, and I’d spend hours strolling through long stretches of prose. That’s rarely the case anymore. Now my concentration often starts to drift after two or three pages.”
James Grimmelmann, The Laboratorium, Is Google Making Us Insipid?: “Overall, it’s a weak piece. While it’s better-written and slightly more convincing than other entries in the genre of ‘warnings about Internet cognition,’ there’s nothing in it that I haven’t seen before. He shuffles the deck into a different order, but it’s still the same old cards.”
In New York Magazine, Rex Sorgatz lays out a few simple steps for finding internet fame, The Microfame Game and The New Rules of Internet Celebrity — New York Magazine: “It’s easy to be cynical about this new class of celebrity. The lines between empowerment and self-promotion, between sharing and oversharing, between community and cliques, can be blurry. You can judge for yourself whether the following microcelebs represent naked ambition, talent justly discovered, or genius marketing. The point is that renown is no longer the exclusive province of a select few. Nano-celebrity is there for the taking, if you really want it.”
While some personalities seek out internet fame, others have it unwittingly thrust upon them.
At Concurring Opinions, Deven Desai asks, Do We Need an Internet Ed. Class?
“Internet Ed. at an early stage might address the possible generation gap in understanding what is privacy and how the Internet works. Like driving, using the Internet can open up tremendous possibilities for fun and for work. Like driving, irresponsible or uninformed Internet use can lead to undesired consequences. Like driving, horror stories of how a picture from a drunken party ruined someone’s job prospects may not deter irresponsible Internet behaviors across the board. Still, by setting out the way in which irresponsible or immature behaviors such as sharing too much information about one’s personal life, not checking about how a site uses personal financial information, and childish rants can affect one’s life, people would have some sense of the possible repercussions of their acts.”
I agree that education about how to avoid undesired online notoriety (or maintaining personal privacy) is important, but only half of an “internet ed” class– the other half is on information literacy– the skills of finding reputable sources of information and assessing the quality of sources and channels. This includes not only sources of academic research, but also e-commerce sites and social networking sites.
James Grimmelmann wrote a nice primer on copyright, statutes and open access, and how publishing statutes openly online benefits democracy: Copyright, Technology, and Access to the Law: “Recently, the state of Oregon has used copyright law to threaten people who were publishing its laws online. Can they really do that? More to the point, why would they? This essay will put the Oregon fracas in historical context, and explain the public policies at stake. Ultimately, it’ll try to convince you that Oregon’s demands, while wrong, aren’t unprecedented. People have been claiming copyright in ‘the law’ for a long time, and at times they’ve been able to make a halfway convincing case for it. While there are good answers to these arguments, they’re not always the first ones that come to hand. It’s really only the arrival of the Internet that genuinely puts the long-standing goal of free and unencumbered access to the law within our grasp.”
Info/Law notes that a community of users is almost done placing the House Report on the 1976 Copyright Act online for easier public access to public information. An Open Access Success Story: “Working in irregular bursts over the last eight months, volunteers at the English-language Wikisource project (a sister site of the much better known Wikipedia encyclopedia) have proofread all 370 page scans from the original House report, and the results have been stitched together to form a single document: Copyright Law Revision (House Report No. 94-1476). As the accompanying color-coded chart reveals, most pages of the report have been proofread by at least two different users, and the rest should be finished within a few weeks if current trends continue.”
Of course, reading through statutes or legislative history on the web doesn’t have the same feel as reading it on microfiche in a dusty corner in the basement of a law library, but nostalgia alone provides no counter to the public good of having this material online for free access. It also demonstrates the advantages that the internet has for democratic principles.
Update (6/20). Justia reports, Oregon decides not to enforce any copyright claims on the Oregon Revised Statutes: “Oregon’s Legislative Counsel Committee had a meeting this morning to discuss the copyright claim on the Oregon Revised Statutes. After taking legal counsel from Dexter Johnson, talking with Karl Olson, Carl Malamud, three Oregon citizens and myself, they unanimously voted to not to enforce any copyright claims on the Oregon Revised Statutes.”
Yesterday, New York Attorney General Andrew Cuomo announced an agreement with 3 national ISPs– Verizon, Time Warner Cable and Sprint– to block access to newsgroups and web sites distributing child pornography.
Press Release: Attorney General Cuomo Announces Unprecedented Deal With Nation’s Largest Internet Service Providers To Block Major Sources Of Child Pornography
An undercover investigation by the Attorney General’s office uncovered a major source of online child pornography known as “Newsgroups,” an online service not associated with websites. The Newsgroups act as online public bulletin boards where users can upload and download files. Users access Newsgroups through their Internet Service Providers. As part of the agreements, Verizon, Time Warner Cable, and Sprint will for the first time completely block access to all child porn Newsgroups.…
In addition to eliminating the Newsgroups, the ISPs have also agreed to purge their servers of all child pornography websites identified by the National Center for Missing & Exploited Children (“NCMEC”). NCMEC regularly reviews and updates its registry of these illegal sites to ensure the list reflects the current presence of such websites on the Internet.
Also yesterday, down at the other end of the New Jersey Turnpike in Philadelphia, the Third Circuit Court of Appeals once again heard oral arguments appealing the constitutionality of COPA, the Children Online Protection Act, which has been under review from federal courts since the Clinton Administration.
This argument was appealing last year’s district court decision ACLU v. Gonzalez, No. 98-5591 (EDPA 2007). The most recent Supreme Court ruling was Ashcroft v. ACLU, 542 U.S. 656 (2004)
ACLU press release: ACLU Urges Court To Uphold Ban On Unconstitutional Censorship Law, “The American Civil Liberties Union is in court today, once again urging the courts to uphold a ban on a law that criminalizes constitutionally protected speech on the Internet. The Child Online Protection Act (COPA) would impose draconian criminal sanctions, with penalties of up to $50,000 per day and up to six months imprisonment, for online material acknowledged as protected for adults but deemed ‘harmful to minors.'”
Here is various reporting and reactions on the NYAG agreement with ISPs:
New York Times, 3 Internet Providers Agree to Block Access to Child Pornography: “The move is part of a groundbreaking agreement with the New York attorney general, Andrew M. Cuomo, that will be formally announced on Tuesday as a significant step by leading companies to curtail access to child pornography. Many in the industry have previously resisted similar efforts, saying they could not be responsible for content online, given the decentralized and largely unmonitored nature of the Internet.”
Declan McCullagh, News.com, N.Y. attorney general forces ISPs to curb Usenet access: “Time Warner Cable said it will cease to offer customers access to any Usenet newsgroups, a decision that will affect customers nationwide. Sprint said it would no longer offer any of the tens of thousands of alt.* Usenet newsgroups. Verizon’s plan is to eliminate some ‘fairly broad newsgroup areas.'”
Susan Crawford, Knowing less: “The announcement this morning in the Times that New York State AG Andrew Cuomo had reached an agreement with three US network operators (Verizon, Sprint, and Time Warner) about blocking child pornography was both less and more important than it appeared.”
Derek Bambauer, Info/Law, Time Warner Gets It Wrong, and the French Follow the Model: “As more details emerge, though, I’m more skeptical about the plan. First, I held off assessing how narrow this filtering system would be (does it successfully block child porn, and only child porn?), since technical details are sketchy. But if the latest reports are to be believed, I’m ready to make a call: completely overbroad.”
David Kravets, Threat Level from Wired.com, Communications Decency Act Tipping Under Cuomo Kid-Porn Accord: “It’s commendable that New York Attorney General Andrew Cuomo wants to curb online child porn. But his accord with Verizon, Time Warner Cable and Sprint — which more ISPs are likely to join — opens up a Pandora’s box of chilling side effects.”
Nancy Prager, Reasonable Balance, Copyright is important, but other things much more so…: “While some might argue that the system that the Attorney General’s office has developed to identify content might catch content that is not in fact child pornography, New York’s action is a giant step in the right direction to protect children and to make the Internet a safe place for all.”
Dan Radosh, Blogging about child pornography is a $20 billion industry: “You will be shocked to hear that I have some questions and comments about today’s front page New York Times story on an agreement by Internet providers to block sites that disseminate kiddie porn. This isn’t necessarily an indictment of the agreement or the article, just a reminder that these things have a way of not being discussed as thoroughly as they should be.”
David Isenberg, isen.blog: Meet the newest Internet Governance Body: “This is, in my humble opinion, a populist wedge issue to undermine the Internet’s neutrality. I wish the carriers would stay the &^%$ out of content.”
Congress is once again considering legislation to deal with the problem of orphaned copyright works– those works that are still under copyright but where the copyright owner may be impossible to identify and locate. Both the House and Senate have introduced versions of orphaned works legislation. Here are some resources and information.
HR 5889 Orphan Works Act of 2008.
S. 2913 Shawn Bentley Orphan Works Act of 2008.
The Copyright Office has a page on the Orphan Works issue.
The House Judiciary Committee held hearings
on Promoting the Use of Orphan Works: Balancing the Interests of Copyright Owners and Users in March with testimony from Marybeth Peters (Register of Copyrights, U.S. Copyright Office), Allan Robert Adler (Vice President of Legal and Governmental Affairs, Association of American Publishers, Inc.), Corinne P. Kevorkian (President and General Manager, Schumacher, A Division of F. Schumacher & Company), Karen C. Coe (Associate Legal Counsel, United States Holocaust Memorial Museum), Victor S. Perlman (General Counsel and Managing Director, American Society of Media Photographers, Inc.), Maya Gura (Director of Marketing and Sales, PicScout).
Lawrence Lessig in the New York Times Little Orphan Artworks: “Congress could easily address the problem of orphan works in a manner that is efficient and not unfair to current or foreign copyright owners. Following the model of patent law, Congress should require a copyright owner to register a work after an initial and generous term of automatic and full protection.”
Gigi Sohn of Public Knowledge responds to Lessig’s op-ed, Searching for the Possible in the Orphan Works Debate, “After 40 years of uninterrupted strengthening and lengthening of copyright laws, we have before us an opportunity for significant reform. What makes this legislation a no-brainer is that with the exception of a handful of small copyright holder groups (who, to my chagrin, have been very effective), there is near unanimous agreement that an orphan works solution is a good idea. There are still some kinks to be worked out in the legislation, but the framework underlying them is basically sound.”
Edward Winkleman, Reframing the Arguments on the Orphan Artworks Bill
The Wall Street Journal, Shape of Things to Come: “On Jan. 8, the U.S. Patent and Trademark Office granted Apple Inc. a trademark for the three-dimensional shape of its iPod media player. This was more than a recognition of an innovative product design. It also was Apple’s capping piece in a multiyear marketing and legal campaign that pushed intellectual-property rights to new competitive advantage for the company.”
US TM registration #3365816: “Color is not claimed as a feature of the mark. The mark consists of the design of a portable and handheld digital electronic media device comprised of a rectangular casing displaying circular and rectangular shapes therein arranged in an aesthetically pleasing manner. The matter shown in broken lines, indicating the location of device connectors, is not part of the mark.”
Remember Facebook’s Beacon program? That’s the program that uses Facebook user’s purchase information on partner websites to advertise those websites to the user’s social network. Here are a couple of posts on the controversy from David at Inside the Marketer’s Studio blog that explain the controversy: Facebook Social Ads Need an Opt-Out
Facebook’s About Face on Social Ads (Finally)
A Texas plaintiff filed a class action suit against Blockbuster for violating the Video Privacy Protection Act, U.S.C. § 2710 by releasing customers’ video rental records with Facebook.
Complaint in Harris v. Blockbuster
MediaPost reports: Blockbuster Sued For Participating In Facebook’s Beacon Program: “A Texas resident has filed a federal lawsuit against Blockbuster for participating in Facebook’s Beacon program, which tells members about their friends’ e-commerce activity. In the lawsuit, quietly filed last week, Dallas County resident Cathryn Elaine Harris claims that Blockbuster violated the federal Videotape Privacy Protection Act by sharing information about her movie rentals and sales with Facebook without first obtaining her written consent.”
And here’s a thoughtful analysis from December on applying the VPPA to Beacon from James Grimmelmann, Facebook and the VPPA: Uh-Oh
Would Bruce’s right of publicity claim against Microsoft be affected if this video was intended for internal use only, but posted to the public internet by a third party?
J.K. Rowling testified this week in her lawsuit against the publisher of a book version of The Harry Potter Lexicon, Warner Bros. Entertainment Inc. v. RDR Books.
Mark Hamblett, New York law Journal: Harry Potter Author Fights Creator of Lexicon, Calling It ‘Wholesale Theft’: “In pointed and at times emotional testimony, Rowling employed a sharp tongue to charge that a Michigan publisher borrowed much from her wildly successful works and added nothing when it created a ‘lexicon’ alphabetically listing characters, places, spells, creatures and objects in the Potter series.”
New York Times, Rowling Testifies Against Lexicon Author: “Ms. Rowling argued on Monday in Federal District Court in Manhattan that the proposed encyclopedia — she has read the manuscript — is a copyright infringement and is little more than an alphabetical form of plagiarism. She claims the author has lifted large chunks of her own language without quotation marks. ‘I believe that this book constitutes the wholesale theft of 17 years of my hard work,’ she testified.”
Scrivener’s Error Beware the Ides of April: “the reporting of the Harry Potter Lexicon case is only making clearer that Warner Brothers’ trademark interests, far more than Rowling’s copyright interests, are driving the lawsuit. Although Rowling’s testimony yesterday was from a copyright holder/creator’s perspective, the questions from plaintiffs’ counsel — representing her interests — were from a trademark and dilution/disparagement/passing-off perspective, even when put in the formal language of copyright claims.
Derek Bambauer, Info/Law Harry Potter and the Lexicon of Fair Use: “I think the book infringes Rowling’s copyrights, that the use isn’t fair, that the trademark claim is weak, that the plaintiffs will win on the copyright claim, and that this outcome is a good thing.”
Tim Wu, Slate.com: J.K. Rowling should lose her copyright lawsuit against the Harry Potter Lexicon: “But Rowling is overstepping her bounds. She has confused the adaptations of a work, which she does own, with discussion of her work, which she doesn’t. Rowling owns both the original works themselves and any effort to adapt her book or characters to other media—films, computer games, and so on. Textually, the law gives her sway over any form in which her work may be ‘recast, transformed, or adapted.’ But she does not own discussion of her work—book reviews, literary criticism, or the fan guides that she’s suing. The law has never allowed authors to exercise that much control over public discussion of their creations.”
Mike Madison, Madisonian.net: A Fair Use Lexicon: “Over the last decade, copyright owners in many industries dreaded and resisted the prospect that the copying machine that we call ‘the Internet’ might destroy their business models. Rowling v. RDR Books (the formal title of the Harry Potter case) presents the relatively uncommon situation in which the Internet (i.e., ‘free’) version of the alleged infringement was unobjectionable; hackles were raised and claims were filed only when what was merely digital became (or threatened to become) analog. ”
The Los Angeles Times reports that the FCC is waiting to rule on its indecency complaints against broadcast licensees until after the Supreme Court rules on FCC v. Fox, Indecency cases stuck in legal limbo at FCC: “Thousands of viewer and listener complaints about programs are backed up at the Federal Communications Commission, where officials acknowledge the legal limbo has tied their hands. The FCC is reluctant to rule on these cases until the U.S. Supreme Court hands down a decision on indecency standards — its first in three decades.”
In the NY Times, Billy Bragg suggests that the social networking sites that have developed their audiences by hosting music should have to consider paying royalties for that music: The Royalty Scam
In our discussions, we largely ignored the elephant in the room: the issue of whether he ought to consider paying some kind of royalties to the artists. After all, wasn’t he using their music to draw members — and advertising — to his business? Social-networking sites like Bebo argue that they have no money to distribute — their value is their membership. Well, last week Michael Birch realized the value of his membership. I’m sure he’ll be rewarding those technicians and accountants who helped him achieve this success. Perhaps he should also consider the contribution of his artists.
TechCrunch’s Michael Arrington suggests that recorded music has no value and that artists should be happy to be able to take advantage of free hosting. These Crazy Musicians Still Think They Should Get Paid For Recorded Music
Recorded music is nothing but marketing material to drive awareness of an artist. Websites that bring that music to listeners are doing artists a favor. In fact, they’re doing them a favor that they should (and will) be paid for. Young artists and songwriters in particular benefit from these services – Until a few years ago they had almost no way to break into the mainstream without getting a label to promote them. Now those walls are being torn down, and Bragg has the audacity to complain about it.
e-consultancy.com (via pho): These crazy bloggers still think they understand the music business “While Bragg makes some interesting points, I disagree with him. Musicians and labels that upload their music to social networks ostensibly know what they’re doing and understand that there is no agreement for royalties.”
Why shouldn’t songwriters and recording artists ally in order to host music only on social networking sites that agree to pay royalties?
At News.com, Anne Broache reports that the FCC will be tracking broadband with more precision and re-defining the lower limits of ‘broadband,’ FCC approves new method for tracking broadband’s reach:
- 200Kbps speeds are no longer considered ‘broadband.’
- Broadband service speeds will have to be reported both for uploads and downloads.
- Upload and download speeds will have to be reported in a more specific way.
- ISPs will be required to report numbers of subscribers, and at the census-block level.
- ISPs will not have to report the prices they charge….yet.
The order is not yet available on the Commission’s web site, but the minimum speed considered broadband will be now 768 kbps instead of 200.
On Monday, the Supreme Court granted cert and agreed to review the Second Circuit’s ruling in Fox v. FCC, 06-1760-ag, that the Commission’s policy sanctioning “fleeting expletives” is arbitrary and capricious.
FCC v. Fox Docket.
The Government’s Cert Petition asks The Court to review “whether the court of appeals erred in striking down the Federal Communications Commission’s determination that the broadcast of vulgar expletives may violate federal restrictions on the broadcast of ‘any obscene, indecent, or profane language,’ 18 U.S.C. 1464; see 47 C.F.R. 73.3999, when the expletives are not repeated.”
Federal Communications Commission & USA V. Fox Television Stations, Inc. Et Al., No. 07-582 (S.Ct) Reply Brief for Petitioners
Statements by Commissioners Copps and Tate.
Will this result in a decision that proscribes the scope of indecency regulation permissible by the First Amendment? Will the Court take this as an opportunity to promote speech or to promote the Commission’s authority to continue to regulate speech that is disfavored by the Commissioners?
The Onion imagines a slightly different standard for defining indecency– one with which I’m sure no one would have a problem:
Today at 2:00 EDT, The Judiciary Committee Antitrust Task Force will hold a Hearing on Net Neutrality and Free Speech on the Internet.
Damian Kulash
Lead Vocalist and Guitarist
OK Go
Michele Combs
Vice President of Communications
Christian Coalition of America
Rick Carnes
President
Songwriters Guild of America
Caroline Fredrickson
Director
ACLU Washington Legislative Office
Christopher S. Yoo
Professor of Law and Communication and Director
Center for Technology, Innovation, and Competition
University of Pennsylvania Law School
Susan P. Crawford
Visiting Associate Professor of Law
Yale Law School
It will be webcast live (which I will miss while I’m on a plane sxsw-bound.)
After a quiet year on the indecency front, the FCC recently revisited two indecency complaints from programs that aired in 2003 and issued forfeiture orders.
In 2004, the Commission filed its Notice of Apparent Liability In re: Complaints Against Various Licensees Regarding Their Broadcast Of The Fox Television Network Program “Married By America” On April 7, 2003 (FCC 04-242, October 2004). But the NYPD Blue NAL and forfeiture orders were both released in the last month, Notice of Apparent Liability In re: Complaints Against Various Television Licensees Concerning Their February 25, 2003 Broadcast of the Program “NYPD Blue” (FCC 08-25, January 25, 2008). In order to get this forfeiture order in before the statute of limitations applied, ABC and the ABC affiliates were given only 17, rather than the usual 30, days to respond.
The NYPD Blue forfeiture ruling finds the Commission not only attempting to find the bounds of indecent depictions of “sexual organs and excretory organs –specifically an adult woman’s buttocks,” but once again defending its indecency regulations against contentions that the indecency regulations are inconsistent with the First Amendment.
While the pre-Oscar crowds at Union Square sold out early evening showings of Best Picture nominees No Country for Old Men and There Will Be Blood, the crowd in the theater for U23D was fairly sparse.
Perhaps because it was in a regular theater rather than on the big IMAX screen, but unlike Bob Lefsetz, I found the 3D-ness underwhelming except for a few moments. Overall, the film seemed to be more intimate and less grand than the concert itself. I was disappointed that the camera was generally so close in on the band members and only rarely and ineffectively attempted to convey the size of the show. A couple of times, we looked out at the 60,000-odd people in the stadium from behind Larry’s drum set, but it was too brief to get a sense of what it is like standing in front of that many people.
But while the show was great, and worthwhile seeing, even if the 3D was underwhelming, what I found most striking is just how well documented the show was, even without the professional camera crew. When the film showed Bono, the Edge and Adam out towards the audience, you could see many, if not most, of the audience taking photos or video with their cameras or cameraphones. Some of these videos are on the web.
Here are two fan-shot videos of Pride (in the Name of Love) from that show:
And here’s the professionally filmed feed:
The Beastie Boys’ fan shot concert film, Awesome: I Fuckin’ Shot That is probably not a prototype for the future of all concert film, but it is interesting to see how many of the thousands of different impressions of a large concert get fixed and posted online.
And with an event that is broadcast worldwide, like the Academy Awards, the web is a way of seeing that event through different filters. I was dubious about the value of liveblogs of the Oscars. Unlike, say, today’s FCC hearings at Harvard, the Oscars are pretty well broadcast. Liveblogging that is usually merely an exercise in self-indulgence.
But if you are writing about the impact of this event on a niche industry, then this kind of reporting adds a different kind of analysis. with his Inside the Marketer’s Studio liveblog, David actually did something different, interesting and utlimately useful for his core readers in the search engine marketing field.
While the personal media takes on major events are no substitute for the official media coverage– clips on YouTube don’t compare to a 5-story tall Bono in surround sound– but combining together enough personal media creates more context that can help to better understand, experience or frame an event.
Reps. Ed Markey (D-MA) and Chip Pickering (R-MS) introduced the Internet Freedom Preservation Act of 2008 (H.R. 5353).
This bill would “establish broadband policy and direct the Federal Communications Commission to conduct a proceeding and public broadband summits to assess competition, consumer protection, and consumer choice issues relating to broadband Internet access services.”
It amends the Communications Act of 1934 to include open access principles and establish the importance of the internet for the economy of the US.
- to maintain the freedom to use for lawful purposes broadband telecommunications networks, including the Internet, without unreasonable interference from or discrimination by network operators, as has been the policy and history of the Internet and the basis of user expectations since its inception;
- to ensure that the Internet remains a vital force in the United States economy, thereby enabling the Nation to preserve its global leadership in online commerce and technological innovation;
- to preserve and promote the open and interconnected nature of broadband networks that enable consumers to reach, and service providers to offer, lawful content, applications, and services of their choosing, using their selection of devices, as long as such devices do not harm the network; and
- to safeguard the open marketplace of ideas on the Internet by adopting and enforcing baseline protections to guard against unreasonable discriminatory favoritism for, or degradation of, content by network operators based upon its source, ownership, or destination on the Internet.
Even though there are four principles, these are somewhat broader than former FCC Chairman Michael Powell’s four freedoms.
The bill requests a report from the FCC about broadband network providers. The information the bill specifically requests is (language somewhat simplified to be less precise, but easier to read. See the original text of the bill for the precise language):
(A) whether broadband network providers refrain from blocking, thwarting, or unreasonably interfering with the ability of consumers to–
(i) access, use, send, receive, or offer lawful content, applications, or services
(ii) use lawful applications and services of their choice; and
(iii) attach or connect their choice of legal devices, provided such devices do not harm the network;
(B) whether broadband network providers add charges for quality of service, or other similar additional fees or surcharges, to certain Internet applications and service providers, and whether such pricing conflicts with the policies [set out earlier in this bill]
(C) whether broadband network providers offer to consumers parental filters, spam filters and similar consumer services;
(D) practices by which network providers manage or prioritize network traffic, including prioritization for emergency communications, and whether and in what instances such practices may be consistent with such policies of the United States;
(E) with respect to content, applications, and services–
(i) the historic economic benefits of an open platform;
(ii) the relationship between competition in the broadband Internet access market and an open platform; and
(iii) the policy choices and results of global competitors with respect to access competition and an open platform;
(F) whether the need for enforceable rules governing openness, consumer rights, and consumer protections or prohibiting unreasonable discrimination is lessened if a broadband network provider provides significantly high bandwidth speeds to consumers; and
(G) the potential of policies promoting openness in spectrum allocation, universal service programs, and video franchising to expand innovation through protection from unreasonable interference by network owners of an open marketplace for speech and commerce in content, applications, and services.
Finally, the bill would require the FCC to hold at least 8 broadband summits in geographically diverse locations around the US.
Rep. Markey’s press release: Internet Freedom Law Will Keep Internet Open For Future Innovators: “The goal of this bipartisan legislation is to assure consumers, content providers, and high tech innovators that the historic, open architecture nature of the Internet will be preserved and fostered. H.R. 5353 is designed to assess and promote Internet freedom for consumers and content providers. Internet freedom generally embodies the notion that consumers and content providers should be free to send, receive, access and use the lawful applications, content, and services of their choice on broadband networks, possess the effective right to attach and use non-harmful devices to use in conjunction with their broadband services, and that content providers not be subjected to unreasonably discriminatory practices by broadband network providers.”
Howard Feld, The Markey-Pickering “Net Neutrality” Bill: Grinding Out One More First Down In The Internet Freedom Bowl: “This is a good bill — probably the best that can get through in the current Congress. It advances the ball forward in a substantial way, and would make a good law if passed. It doesn’t solve all the problems, but it doesn’t pretend to do so either. It deliberate lines things up for the next step — assuming we get that far.”
Derek Slater, Rep. Markey’s new net neutrality legislation: “Net neutrality is too often painted as just about particular companies’ competing interests, but that’s missing the point. Rather, net neutrality and broadband policy are — and should be — about what’s ultimately best for people, in terms of economic growth as well as the social benefit of empowering individuals to speak, create, and engage one another online using the wide panoply of innovations available to them. In other words, broadband policy should come from the bottom up.”
The Wall Street Journal, Officials Step Up Net-Neutrality Efforts: “Big broadband companies are headed for a clash with Washington over whether consumers have a right to get as much as they want from the Internet, as fast as they want it, without paying extra for the privilege.” Maybe this is better framed as whether the broadband providers have an obligation to disclose how they restrict customers’ use of the internet and whether the public interest should require providers to offer access that does not discriminate against content, source or protocol.
In November, Comcast was found to be blocking and degrading certain P2P and groupware network protocols. The issue with Comcast is not that it is imposing limits on users’ bandwidth, but that it imposes those limits on the use of certain protocols and applications while failing to disclose that the limits exist and the extent of those limits.
Vuze, a online video provider whose software uses the BitTorrent P2P protocol to distribute content filed a complaint with the FCC about these practices Petition to Establish Rules Governing Network Management Practices by Broadband Network Operators. Free Press and Public Knowledge also filed a Formal Complaint against Comcast for Secretly Degrading P2P Applications and a Petition for Declaratory Ruling.
The Commission sought Comments for Declaratory Ruling Regarding Internet Management Policies and Comments on Petition for Rulemaking to Establish Rules Governing Network Management Practices by Broadband Network Operators.
The FCC has received more than 28,000 comments. Here is Comcast’s comment. Some of the other recent comments include Verizon and Verizon Wireless, Qwest,
Time Warner Cable, RIAA, American Library Association and CDT.
The FCC is planning on holding a hearing on February 26 in Cambridge, MA on Broadband Network Management Practices.
On her Myspace blog, singer Lennon Murphy writes, Getting Sued by Yoko, “Yesterday I received notice that Yoko Ono had filed a law suit against me, asking for a cancellation of the trademark that I own for the name “Lennon.” This could very well mean the career that I have worked so hard at, the one you all have believed in, may come to an end.”
Not surprisingly, this was picked up in the mainstream music press.
NME, “Yoko Ono sues singer for being called Lennon”
Rolling Stone: “Yoko Ono is suing Lennon Murphy, lead singer of the band Lennon, for intentionally exploiting the name of her deceased husband, John Lennon.”
Not exactly. Ono has not sued Murphy to prevent Murphy from performing under the name LENNON. Ono seeks to cancel Murphy’s federal registration of the mark LENNON by filing a Petition for Cancellation with the Trademark Trial and Appeal Board. Ono is not suing Murphy to prevent Murphy from performing music as LENNON (in this filing.)
What Ono seeks to deny Murphy of is the exclusive right to perform and sell music under the name LENNON. Ono is not attempting to prevent Murphy from performing and engaging in commerce under the name LENNON, but to prevent Murphy from preventing other Lennons to use the name in commerce.
Murphy’s application was initially refused under §2(e)(4) of the Lanham Act for being “primarily merely a surname.” After the application was denied on the basis of it being merely a surname, Murphy’s attorneys petitioned that the name LENNON had acquired secondary meaning. One of the ways in which a mark can acquire secondary meaning is through use in commerce for five years (in Murphy’s case, starting in 1997). Murphy was granted Federal trademark registration #2676604 in 2003.
Ono’s cancellation petition argues that if there is any secondary meaning in the LENNON mark relating to pop music, that it is to John’s music that it refers. If an average consumer goes to a music store and sees a album bearing the mark LENNON, is that consumer more likely to associate that album with Lennon Murphy than John Lennon, Julian Lennon, Sean Lennon or anyone else in the world named Lennon?
If she wins this action, Ono will have simply broken up Murphy and her trademark registration. If Ono actually seeks to prevent Murphy from performing and recording under the name LENNON, that is a different complaint in a different court.
And it does not seem like Ono would do that. Boing Boing posts a letter, Yoko Ono: No, I’m not suing Lennon Murphy over “Lennon.”
Creative Commons and Public.Resource.Org have released 1.8 Million Pages of U.S. Case Law Available Now for Developers: “Today’s release covers all U.S. Supreme Court decisions and all Courts of Appeals decisions from 1950 on. The release is equivalent to 1,858 volumes of case law in book form, a stack of books 348 feet tall.”
Kevin Kelly ponders ways to think about moving to a new media world where the marginal cost of all copies drops to zero: Better Than Free: “When copies are super abundant, they become worthless. When copies are super abundant, stuff which can’t be copied becomes scarce and valuable.”
While AT&T is considering helping large copyright owners police infringements on its network, Verizon. The NYT Bits Blog reports, Verizon Rejects Hollywood’s Call to Aid Piracy Fight. Tom Tauke, Verizon’s executive vice president for public affairs offers three reasons why ISPs have no incentive to monitoring for copyright infringements:
“1) The slippery slope.
Once you start going down the path of looking at the information going down the network, there are many that want you to play the role of policeman. Stop illegal gambling offshore. Stop pornography. Stop a whole array of other kinds of activities that some may think inappropriate.
2) It opens up potential liability for failing to block copyrighted work.
When you look back at the history of copyright legislation, there has been an effort by Hollywood to pin the liability for copyright violations on the network that transmits the material. It is no secret they think we have deeper pockets than others and we are easy-to-find targets.
3) Privacy.
Anything we do has to balance the need of copyright protection with the desire of customers for privacy.”
Wired: Humorless Metalheads Shut Down Popular YouTuber: “The three unnamed artists filed copyright infringement claims against the parody videos of Finnish media artist Santeri Ojala, causing YouTube to shut down his account over the weekend.… Ojala’s popular videos poked harmless fun at famous guitar soloists by dubbing his own abhorrently bad strummings over rock concert footage.”
The “shreds” videos live again on at MySpace (until they receive a takedown notice) and at Wired.
Eric Clapton shreds
Since the videos comment on the seriousness of virtuostic guitar wanking, there is a non-trivial argument that these could be considered a parody fair use. Of course, there is also a non-trvial argument that these videos are defamatory and damaging to the guitarists’ reputations, even though they are public figures. But from that perspective, striking these videos down off one video hosting service may perpetuate them across the web becoming more powerful than imaginable.
It’s the first annual Likelihood of Confusion SUPER BOWL® Trademark Watch and Contest: “Every year it’s the same thing: Several weeks before the Super Bowl®, people and businesses wishing to promote events related to the timing of the biggest sporting event of the season — the Super Bowl®, that is, the National Football League’s championship game — go through all sorts of contortions to avoid saying the trademark-protected words, Super Bowl.”
The Church of Scientology requests that Gawker remove a clip of Tom Cruise talking about Scientology for copyright infringement, but Gawker is willing to step up and argue that its use is a fair use for the purposes of news reporting. Church of Scientology Claims Copyright Infringement
The clip in question, Exclusive: The Cruise Indoctrination Video Scientology Tried To Suppress: “if Tom Cruise jumping on Oprah’s couch was an 8 on the scale of scary, this is a 10.”
The only surprise is that it took so long. FORTUNE: Techland Will someone please start a Facebook group to save Scrabulous?
One of the big issues in tech and IP policy this year will be the role of ISPs. To what extent should they be common carries of information, enforcers of digital copyright, or delivery networks giving special priority to preferred media providers?
The NY Times published an AP report that the FCC will investigate complaints that Comcast blocks BitTorrent traffic on its networks, F.C.C. to Look at Complaints Comcast Interferes With Net: “The Federal Communications Commission will investigate complaints that Comcast actively interferes with Internet traffic as its subscribers try to share files online, the commission’s chairman, Kevin J. Martin, said Tuesday.”
From another session at CES, the Times’ Bits blog reports that AT&T is looking to act as an enforcement agent for copyright owners, AT&T and Other ISPs May Be Getting Ready to Filter
“‘What we are already doing to address piracy hasn’t been working. There’s no secret there,’ said James Cicconi, senior vice president, external & legal affairs for AT&T.
Mr. Cicconi said that AT&T has been talking to technology companies, and members of the MPAA and RIAA, for the last six months about implementing digital fingerprinting techniques on the network level.
‘We are very interested in a technology based solution and we think a network-based solution is the optimal way to approach this,’ he said. ‘We recognize we are not there yet but there are a lot of promising technologies. But we are having an open discussion with a number of content companies, including NBC Universal, to try to explore various technologies that are out there.'”
Reaction from David Isenberg, isen.blog: Konflating Kopyright and Kongestion: “The two issues should be separated. Network congestion has some very simple solutions.”
The Center for Social Media at American University has released a study on the quoting of copyrighted material in user-generated video and fair use, Recut, Reframe, Recycle: “The study, Recut, Reframe, Recycle: Quoting Copyrighted Material in User-Generated Video, by Center director Pat Aufderheide and Peter Jaszi, co-director of the law school’s Program on Information Justice and Intellectual Property, shows that many uses of copyrighted material in today’s online videos are eligible for fair use consideration.”
The study cites a number of ways in which uses of copyrighted videos could be considered as fair use: