...something Grey.

As Cory says, check it out before the lawsuits start.

James Grimmelmann is back with yet another must-read piece @ Lawmeme, providing his take on how to distinguish between "good" and "bad" digital rights management.

James Boyle has a powerful rebuttal to Richard Epstein's provocative piece, "Why Open Source is Unsustainable." Following, a few intriguing snippets :

Boyle rebutting the notion that open source cannot last because it's an "idealistic community":

"[Legal] uncertainty is only part of the reason that Prof Epstein thinks that open source is unsustainable. His key criticism is that 'idealistic communes cannot last for the long haul.' Well, the Catholic Church is also a relatively idealistic institution, based on canonical texts that are subject to conflicting interpretations. It is doing pretty well so far."

Boyle arguing against the idea that open source isn't viable because you can't "cash out"

"People used to say that collaborative creation could never produce a quality product. That has been shown to be false. So now they say that collaborative creation cannot be sustained because the governance mechanisms will not survive the success of the project. Prof Epstein conjures up a 'central committee' from which insiders will be unable to cash out - a nice mixture of communist and capitalist metaphors. ...But so far as we can tell, those who are influential in the free software and open source governance communities (there is, alas, no 'central committee') feel that they are doing very well indeed. ...[T]he tradition of 'rough consensus and running code' seems to be proving itself empirically as a robust governance system."

The whole shebang here.

Breaking with the rest of the music biz, Sony BMG is partnering with Grokster for a sorta kinda P2P venture:

Although many of the details are still in flux, people familiar with Mashboxx said that it would probably work like this: When users search for a Sony BMG track, the system will allow them to download only authorized versions of the song.

In some cases, these could be free promotional tracks that come with an offer to buy higher-quality renditions of the music. Mashboxx hasn't set any prices. Many online music stores sell songs for 99 cents each.

The idea behind the venture is to let people continue to use file sharing to discover music at no charge, while encouraging them to pay for the songs they want to keep.

...is a good offense. That's the message of Fred von Lohmann's latest column at Law.com, which urges ISPs and online publishers to take advantage of the recent ruling in OPG v. Diebold to level the playing field with copyright holders who send abusive takedown demands:

[By] bringing litigation in selected cases, ISPs and Internet publishers can begin to build precedents that may preemptively deter copyright owners from sending blunderbuss takedown notices in the first place. Counsel for copyright owners, on the other hand, will have to examine potential fair use arguments more closely in light of the Diebold ruling, especially if they have been informed by an ISP or publisher that the material may not be infringing.

Speaking of fair use offense, there has been some talk today about whether the Lexmark ruling Jason has been marveling over may turn out to be useful in the appeal of the awful BnetD ruling (PDF). Meanwhile, Ernie's latest web radio show has been released. The topic? The BnetD ruling.

Derek Slater, Joe Gratz, and Michael Madison of Madisonian Theory each have thoughts to share on the Lexmark ruling. Ernie, Michael, and Seth Finkelstein have clearly given a great deal of thought to the BnetD decision. Perhaps we'll see some brainstorming about how the Lexmark ruling could be applied in Bnetd v. Blizzard?

Harvard law IP professor/Berkman Center director/alternative compensation advocate Terry Fisher, guest-blogging at the Lessig Blog:

Larry has kindly offered me the opportunity to host his blog for a week. My plan is to use the opportunity primarily to catalyze a discussion of the current crisis in the entertainment industry and what potential solutions to it are both attractive and practicable.
[...]
Before addressing the particular ways in which I and others have tried to solve the crisis, it might be helpful to consider whether my characterization of the crisis is fair and balanced. One potential line of criticism would point to the recent paper by Oberholzer and Strumpf, The Effect of File Sharing on Music Sales (which appeared after my manuscript was set) as evidence that I have seriously exaggerated the extent to which the new technologies (in this case, P2P services) have, at least thus far, threatened traditional business models.

Creative Commons has the answer.

In the best sense, of course -- it hit Newsweek. Bravo.

Via Blogbook, a marvelous Groklaw piece I managed to miss, taking aim at SCO, Disney, and other abusive copyright holders/claimants:
The Nazgul, a Derivative Work of the Intellectual Property of Edgar Allan Poe:

If Edgar Allen Poe was alive and thought like SCO, you couldn't write this without the risk of being sued by the venerable Mr. Poe, because he might say, like SCO, if he shared their concept, that we had 'stolen' his plot line. Just think of how much creativity the world would lose if such ideas about copyright were to be adopted. Without a doubt the world would be the poorer for it. Happily, The Raven is in the public domain, which means we can be as creative as we like with Mr. Poe's original work, with delightful results.

For more on the delightful results of remixing culture, check out the new flash piece introducing the Creative Commons sampling license, as well as the shiny new membership page where you can help support the project by becoming a "Commoner."

Thanks to a tip from Siva Vaidhyanthan, I just spent some time perusing Elizabeth Townsend's terrific Academic Copyright weblog. Some of you may recall Townsend weighing in on the back-and-forth between Siva and Peter Hirtle on strategies for responding to unnecessary restrictions to fair use. It turns out she's been doing research on a number of issues of interest to copyfighters, including investigating the current state of scholarly access to unpublished works. Two recent posts explore the tension between copyright holders/publishers and academics/librarians/historians:

Copyright and Unpublished Papers - Three Different Approaches reveals that the people in charge of the Mark Twain papers have put everything on microfilm, claiming that this is "publishing" them, so as to prevent the works from entering the public domain after 2003. Remarks Siva, "This is, of course, great evidence in the argument for copyright formalities."

Some Thoughts on the Internet and Society in Relation to Unpublished Works, meanwhile, looks at a paper Peter Hirtle is writing on the "Gentleman's Agreement of 1935" -- "an agreement between librarians and publishers on what was ok to copy without anyone filing infringement lawsuits." The post takes us off the beaten path of the current discussions about copyright, reminding us that access isn't only about making materials available on the Internet: it's also about "continued access to materials with privacy to look, transparent copyright information for materials posted on the Internet and those still remaining soley in archives, and a better fair use scheme that scholars can actually use and depend on, particularly when literary executors DO NOT give permission to quote from materials (this is when it is needed most)."

It's an important point. Those of us who live and breathe the Internet are dazzled by the possibilities for enriching education, knowledge, and creativity, and we tend to talk about glorious futures snuffed out. But what we're aiming to protect is ancient. We have a history of scholarship, knowledge building, and knowledge preservation. We have communities that still understand and respect fair use, both in concept and practice. It's vital that they get a seat at the bargaining table, explaining what the formalities were good for, and why the gentleman's agreement should still hold.

Go on, admit it -- you've been wondering what exactly Mr. Doctrow is up to over there in Jolly Old England. So here's a nice Guardian piece with the scoop on the BBC's Creative Archive, plus Cory himself testifying to the UK government committee that will give the project a thumbs up/thumbs down.

The pith:

The world's media companies are running away from remix culture, locking up their media in increasingly baroque copy-restriction schemes that aim to block playful, sticky-fingered artists from appropriating an image, a beat, a phrase. The works of the commercial entertainment world grow ever less-available to remixers.

...and the pitch:

But not the BBC -- while the private sector strives to keep its material away from remixers, the BBC proposes to do the opposite.

The Creative Archive project will take the very essence of British popular culture -- the material that the United Kingdom spent billions of pounds on in order to entertain, educate and inform itself -- and give it to Britons to extend, to make their own, to interweave with the stories they tell and hear. [...]

[The] audience is awakening to the possibility of mining the culture that surrounds us for the raw materials from which new works may be constructed, from school projects that include clips and music captured from variegated sources to "mash-up" mixes of cleverly combined and juxtaposed music to re-dubbed and re-edited parodies of popular works. This "remix culture" grows by leaps and bounds as the public realises the value of a new kind of folk-art, something that both affirms and defines shared cultural identity by allowing all comers to actively participate in the creation of media, rather than simply eating what we're fed.

There's a lot more out there right now on so-called open content; below, a few recommended articles:

• The WSJ on the new Creative Commons compilation CD, complete with a tagline that in this case signifies more than marketing panache: "Rip. Sample. Mash. Share." Really;
  
• Saving the Artistic Orphans, a new Wired piece on Kahle v. Ashcroft;
  
• BBC to Open Content Floodgates -- an oldie but a goodie on the Creative Archive;
  
• Free Content Still Sells -- in which Joanna Glassner picks up an Ernie meme and runs with it;
  
• OutFoxed Offered for Remix, via Frank Field;
  
• Meet Mr. Rights, a more extensive UK piece on the Creative Archive, unfortunately hidden behind registration walls; and
  
• New Creative Commons License "Frees Creativity Across the Digital Divide" by Andy Carvin.
  

Once again, the embargo is lifted and the multiple rumors are confirmed: not only has the JibJab case has been settled in favor of the animation parodists, but EFF research indicates that Woody Guthrie's "This Land Is Your Land" is actually part of the public domain.

"We believe that Guthrie's classic tune, 'This Land Is Your Land,' belongs to all of us now, just like Amazing Grace and Beethoven's symphonies," says Fred von Lohmann in the official press release. "The idea of copyright law is that, after a time, every work comes back into the hands of the public, where it can be reused, recycled, made part of new creativity without having to pay a fee or call in the lawyers. That's a great thing, the real genius of copyright."

Very cool.

More @ Ernie's & Wired.

Later: Fred von Lohmann @ Deep Links: "Come to think of it, now that 'This Land is Your Land' is in the public domain, can we make it our national anthem? That would be the most fitting ending of all."

Digital Media Europe carries a story today wherein the Pixies denounce traditional record labels in favor of live CD sales from concerts, product licensing, and Internet distribution:

"Record companies, schmecord companies – who needs ‘em? That’s not where the money is. The business is with the real customers – the fans. That’s who we’re trying to connect with," band member Frank Black, AKA Black Francis, told the Associated Press this week.

"I never really was much of a believer in the album anyway," Black said. "Singles are what people relate to."

Apparently, the band doesn''t feel it needs a record label any more and, while their plans are still unformed at the moment, the idea generally is to combine selling live CDs made and then sold at concerts, producing music for movies and commercials and distributing singles via the internet.

I've just finished reading the Ninth Circuit's decision (PDF). It's a beauty. Not only do they get the technology and the law right, but also the policy. Check out these choice comments at the end of the opinion:

The Copyright Owners urge a re-examination of the law in the light of what they believe to be proper public policy, expanding exponentially the reach of the doctrines of contributory and vicarious copyright infringement. Not only would such a renovation conflict with binding precedent, it would be unwise. Doubtless, taking that step would satisfy the Copyright Owners’ immediate economic aims. However, it would also alter general copyright law in profound ways with unknown ultimate consequences outside the present context.

Further, as we have observed, we live in a quicksilver technological environment with courts ill-suited to fix the flow of internet innovation. AT&T Corp. v. City of Portland, 216 F.3d 871, 876 (9th Cir. 1999). The introduction of new technology is always disruptive to old markets, and particularly to those copyright owners whose works are sold through well established distribution mechanisms. Yet, history has shown that time and market forces often provide equilibrium in balancing interests, whether the new technology be a player piano, a copier, a tape recorder, a video recorder, a personal computer, a karaoke machine, or an MP3 player.Thus, it is prudent for courts to exercise caution before restructuring liability theories for the purpose of addressing specific market abuses, despite their apparent present magnitude.

Indeed, the Supreme Court has admonished us to leave such matters to Congress. In Sony-Betamax, the Court spoke quite clearly about the role of Congress in applying copyright law to new technologies. As the Supreme Court stated in that case, “The direction of Art. I is that Congress shall have the power to promote the progress of science and the useful arts. When, as here, the Constitution is permissive, the sign of how far Congress has chosen to go can come only from Congress.” 464 U.S. at 456 (quoting Deepsouth Packing Co. v. Laitram Corp., 406 U.S. 518, 530 (1972)).

There is a new Wiki in town from The Red Ferret Journal dedicated to free music as in beer, mostly, but also as in free speech. It is a bit hard to read, unfortunately, but content rich (1 Million Free & Legal Music Tracks). Why? (Wiki Music):

Hmm...inspired by a chat I had with Cory and Doc a while ago, I've decided to Wiki the 1 Million Free & Legal Music Tracks page. For those of you who don't know what a Wiki is, it's a page or set of pages which can be altered by any visitor to a website.

My hope is that people will responsibly use the opportunity to add cool new free music links to the page as they find them. Hey, who knows, it might even get exciting. Anyway it's all a bit of an experiment at the moment, so I'll be keeping an eye on it just to make sure that it's used and not abused. Seacrest out! [links in original]

A great place to fill your iPod without worrying about that whole Real/Apple mess.

via Gizmodo

Bravo to the students @ Free Culture for today's spirited celebration of fair use in action. Check out the entirely legal art exhibit, served with a generous helping of levity:

Legal Notice
Sorry Barbie, it's a free country and everything on this site is protected by the First Amendment right to speak, comment, and parody. So maybe you should give your lawyers a break from suing people for a while. Who knows? Maybe it'll give them some free time to ask you out on a date. Just think off all the shopping you could do on a corporate lawyer's salary! Seriously, does Ken even have a job?

Stanford Magazine notes that Larry Lessig's hardcover you-have-to-pay-for-it version of his latest book, Free Culture, is in its third printing (Give It Away and They'll Buy It). All this due to (or despite, depending on who you are asking) the book being freely available for download (180,000 served so far) in a multiplicity of e-book formats, languages and audio versions (Free Culture Derivatives and Remixes).

via IP Updates

Just in time for the growing controversy over This Land, I stumbled over another article on the district court ruling last week in Korea in which a 26-year-old college student was fined $129,000 for creating political parodies and posting them online. The student's crime? Potentially influencing an election and -- I kid you not -- trying to "get the public interested in politics."

Excerpt:

"Satire and jest for parody works may be acceptable, but this parody image went too far in criticizing a specific political party and seemed to have a great influence on the election," the ruling said. "Considering that the image tried to get the public interested in politics, a punishment with a fine is sentenced."

Certainly puts things in perspective. We Americans take a lot for granted when it comes to fair use and free speech. Let's keep it that way.

JibJab has gotten a lot of attention for its This Land is My Land parody. CNN is reporting that the copyright holders for the song aren't too happy about the parody (A JibJab Showdown). There is some question as to whether the flash animation is parody or satire. I argue it is parody (and therefore likely fair use) here: Parody or Satire? iRaq Posters, JibJab Animation, Fuse's Silhouette Ads.

Techdirt has an even better response, a quote on copyright by Woody Guthrie himself (JibJab Threatened Over Use Of Woody Guthrie Song):

This song is Copyrighted in U.S., under Seal of Copyright # 154085, for a period of 28 years, and anybody caught singin’ it without our permission, will be mighty good friends of ourn, cause we don’t give a dern. Publish it. Write it. Sing it. Swing to it. Yodel it. We wrote it, that’s all we wanted to do.

UPDATE 0215 PT
EFF has been contacted by JibJab and is considering their options (This Land Isn't Your Land).

When does the movie industry decline to assert its copyright, instead stating that the copying is fair use? When the copying is done by the Bush campaign, of course. From Roger Ebert's column:

Bruce Davis, executive director of the Oscars, replies: "... We are not enthusiastic about clips from our broadcast being used in political ads ... but we've been advised by our attorneys that the clip in the Bush ad is short enough, and oddly enough political enough, to be protected under the fair use doctrine.

"Fair use trumps copyright infringement. So while we're not happy about what we regard as a misappropriation of our material, there doesn't seem to be much that we can do about it beyond grousing in the columns of movie critics, when we get the chance."

So presumably publishing that Oscars clip of Napster creator Shawn Fanning is allowed too...

Jason Kottke has translated the executive summary of the 9/11 Commission Report into HTML with anchor tags to each paragraph (The 9/11 Commission Report [HTML]). The Washington Post has the 31-page executive summary in PDF if that is the format of your choice: Executive Summary of the Final Report of the National Commission on Terrorist Attacks Upon the United States [PDF]).

HTML is great (thanks, Kottke!), but who will Wiki-fi the document for annotation?
(I'm talking to you, Aaron.)

via Jeff Jarvis

My alma mater Duke University has announced a new program where all incoming first-year students will receive iPods for "educational" purposes.

I think this is a great thing and I'm proud that Duke continues to be a leader in instructional technology but consider what the INDUCE Act might have to say about it. After all, Duke knows that students infringe more copyrights before breakfast than most people do all day. Would a reasonable person have known that giving them an iPod would allow more infringement to take place? Now there's a good question for Duke Law School's IP final...

Henry Jenkins has a nice post over at the must-read MIT Technology Review weblog in which he points to a study (PDF) by MIT's Ian Condry comparing/contrasting the way that the record industries in the U.S. and Japan are handling the digital "piracy" problem:

[While] the American industry has responded by seeking legal actions against its own consumers, no such lawsuits have been filed in Japan, where industry leaders are seeking to understand why music fans think it is ok to share music. ... Industry leaders have suggested that the aggressive commodification of music had led a generation to ignore its status as someone's expressive output. They are seeking ways to rebuild consumer loyalty rather than demand customer obedience. This is consistent with general trends in Japanese industry to study fan groups, subcultures, and other consumption communities as, in effect, "petrie dishes" where experimentation and innovation occur.

It seems to me that there's a bit more to the difference in strategy than simply choosing carrot over stick. It's about putting in the effort necessary to understand why people buy rather than "freeload" music. According to Jenkins, Condry argues that the solution to the music industry crisis is "cultural," not legal or economic, and involves "changing the relations between music producers and consumers to emphasize shared interests rather than economic exploitation." I'll be interested to see how Japan's conversation turns out.

Reuters is carrying a wonderful wirestory pointing out that many of Elvis' recordings will soon enter the public domain in Europe, and not long after that, many other rock and roll classics (European Copyright Clock Ticking on Elvis Hits):

If there are no changes in European copyright law, the track [Elvis Presley's That's All Right] will fall into public domain Jan. 1, 2005. Anyone will be able to release it without paying royalties to the owners of the master or the performer's heirs. BMG will start losing a significant piece of its catalog income in Europe.

As "That's All Right" is being hailed by some as the beginning of rock 'n' roll, the implications are that every year after 2005, more recordings that defined the genre will fall into public domain.

Of course, this has the European recording industry in a panic:

Jamieson [executive chairman of British Phonograph Industry] added, "The end of the sound recording copyright on the explosion of British popular music in the late '50s and '60s, not just the Beatles, but many other British artists, is only a short period away. If nothing is done they will suffer loss of income not just for their sales in the U.K. but their sales across the globe."

And Europeans should care about this, why? If the theory justifying copyright is an incentive one, all the artists and recording companies seem to have been properly incentivized. I can safely say that extending copyright for existing recordings is highly unlikely to incentivize the creation of more music in the 1950s and 60s, unless Austin Powers can actually go back in time.

At the recent HOPE conference in New York, my colleague Annalee Newitz spent some time behind the desk at the EFF booth, talking to people about the importance of preserving our traditional rights and freedoms in the digital age. One conference participant asked her to explain the slogan on my personal favorite EFF bumper sticker: "Fair Use Has a Posse." She proceeded to launch into an explanation of the always tricky fair use doctrine, but he stopped her midway.

No, no, he said, I understand fair use. What does "posse" mean?

There's a similar mind-bending transcultural translation going on over at BigBlogCompany.net, which evidently offers businesses eager to capitalize on the blog phenomenon a form of Cluetrain-awareness training. Writes David Carr,

Fisking is at the 'high end' of blogging spectrum skills. It is a term that has grown out of the blogosphere and, indeed, an art that has been crafted and honed by bloggers...[but all] original work (including online articles) is protected by the law of copyright, which means that only the owner can reproduce that work. Thus, a would-be fisker would find themselves in the position of wanting to criticize words they cannot reproduce. Very difficult.

Fortunately, a fisker can rely on the doctrine of 'fair use' which provides certain circumstances where copyright protected work can be reproduced without permission. One of these circumstances is if the reproduction is for the purposes of 'criticism or review' (and fisking is a compact combination of both disciplines).

Interesting that Carr uses as the basis for understanding old school fair use the "new" online practice of Fisking. It's a good reminder to look at the positive side of what's happening on the Internet with regard to copyright: there is an increasing number of people for whom the question of what constitutes "fair use" is daily (or hourly). New laws and technologies certainly threaten to hoodwink people into believing that fair use on the Internet is tantamount to stealing. On the other hand, direct daily experience with making fair uses of copyrighted material "threatens" the development of new social norms that would provide a much-needed counter-balance to this perspective.

There's some interesting repartee going on in The Library, discussions between Siva Vaidhyanathan and Peter Hirtle of LibraryLaw Blog as to the scope of fair use with respect to nonfiction. Hirtle, applying the traditional fair use factors, explains how a reasonable librarian might conclude copying a whole chapter of a book for school-assigned reading is not fair use. Why not just put a statement in the front of the book giving permission for such uses? The terrible secret, Siva asserts, is that authors typically do not control their works. Publishers do, and publishers don't just apply copyright law but an imaginary, extreme copyright policy. They should be smarter and bolder, given that they are both owner and users of copyrights.

Copyfight co-author Wendy Seltzer has concluded the below-referenced online colloquy on fair use and academic publishing; below, a snippet on the fair use argument for using Fox News clips to criticize the company's reporting:

Question from Lloyd Davidson, Northwestern Univ.:
Robert Greenwald's new film, Outfoxed: Rupert Murdoch's War on Journalism, will probably attempt to escape copyright infringement lawsuits against his use of significant excerpts from Fox's news programs by claiming that critical and satirical use of such material is protected. Whether you have seen the movie or not, do you think that such a significant use of material could ever have a chance of being protected from copyright infringement suits based on such a defense?

Wendy Seltzer:
While I haven't seen the film, I'd argue strongly in its favor as protected fair use -- whatever political angle it takes. I'd similarly defend a critic of Michael Moore's who wanted to use excerpts from Fahrenheit 9/11. So long as the excerpts are used in the process of criticism, and not merely gratuitously, they serve a purpose different from that of the original work and don't substitute for the original's commercial market. In today's multimedia environment, you can't effectively criticize newsmakers without using materials in which they may claim copyright. We need to ensure our critics have access to the same tools and technologies that their targets have.

Just when you thought all news about the fight for fair use was bad news, we have two exercises in parody to brighten the day:

Zippy the Pinhead goes "Totally Jeffersonian" in a strip on "wacko" exceptions to copyright. (Ah, no, I can't explain it; you'll just have a to take a look for yourself.)

Meanwhile, the fearless folks @ Free Culture have announced "Barbie-in-a-Blender Day" -- celebrating an instance in which an artist made it to the courtroom to fight for fair use and won:

Mattel isn't a big fan of free speech -- at least not when it applies to their products. So when Utah artist Tom Forsythe took this photograph of Barbie in a blender as part of a series of critical fine-art Barbie photos, Mattel got pissed. So what did they do to try stop Tom's message? They decided to sue his ass. Usually, a guy like this would have no chance going up against a fleet of corporate lawyers; and from the corporation's perspective, that's the whole point...Luckily for Tom, he convinced some lawyers from the ACLU to step up to and fight his case, and after a long legal battle he was victorious.

According to the Guardian Unlimited, Bertelsmann BMG will begin offering three flavors of CDs to its German customers: an "anti-piracy" CD with no frills (only title and information on the disc) for 9.99 Euros, a regular version for 12.99 Euros, and a "luxury" version with additional features for 17.99 Euros.

Maarten Steinkamp, the head of the label in Germany, said the "anti-piracy" CD will look exactly like the one burned at home -- essentially a bootleg-style version of the CD. He added that it would be "absurd" to keep sticking "Don't Steal Music" labels on albums. "It would be better for us to write, 'Thanks a lot for buying something from us,'" he said.

It's tough to imagine this scenario happening in the U.S., where we need legislation to get the record companies to put warnings on copy-protected CDs to let the public know that the CDs have been hobbled, and are therefore worth...well, less.

I was honored recently to attend a private book reading by Siva Vaidhyanathan and Larry Lessig at Stanford. Both spoke at length about the future of fair use, revealing a schism in perspective: Siva is generally more hopeful, Larry characteristically pessimistic. Siva suggested that society and the court system might eventually have more promising answers to the current conflicts over copyright; Larry, meanwhile, argued that "fair use is the right to hire a lawyer."

Today, Siva has a sad tale suggesting that most people have begun to agree with Larry -- and worse, that society's gatekeepers of fair use -- librarians, educators, school administrators -- are letting it happen.

The story in a nutshell: a professor at a Northeastern college asked Siva for permission to distribute a copy of a chapter of Anarchist in the Library. "Of course," Siva replied, adding that he really ought not to have asked. The professor responded by forwarding to Siva a note from the college librarian, which warns firmly that "educational purpose is only one of the four determining factors, and that the courts have weighted one of them, the impact on the potential market, heavily in recent cases." Siva, horrified, runs the use of the book chapter through the four-factor test to show that the professor has a slam-dunk "case."

"Does that mean that some silly copyright holder might sue anyway? Sure! [...]

This is the problem with fair use: It is a gamble. If you were confident that the copyright holder would not care or would not bother for fear of bad publicity, then you could go ahead and use the material as the law intended you to do. But we have all been taught that copyright holders are vultures out for a quick and easy meal. This is not always true.

But if we don't make a stand against vultures we might as well be waiting around to become carrion.

[The] important thing to remember here is that if you follow your librarian's advice and ask permission, you are making this entire fair use calculus irrelevant. Why do we need section 107 at all if educators are just going to cower upon the advice of copyright experts on campus?

It is our duty to push the envelope of fair use. And it is our duty to demand that our institutions back us up when threatened by bullying copyright holders who do not respect values of openness and freedom.

The problem with this, as Siva himself admits, is that hiring a lawyer costs a great deal of money, and paying the possible infringement penalties a lot more than that. It may be our "duty" to stand up to the vultures, but few people, and few schools, can actually afford to do it.

I see four main avenues for attacking the problem:

• Fair use it or lose it. This is, I believe, Siva's main point, and it's important: on a personal level, don't give in to the fear-mongering. Don't be the person who asks Siva, Larry, or Cory Doctorow whether you can make fair use of their books.
  
• Use and advocate the use of Creative Commons licenses, not only to make work available but also to help people understand in a tangible way that they are entitled to legitimate uses of creative works.
  
• Fortify the fair use gatekeepers. Provide as many resources as we can for faculty members, librarians, systems administrators, school officials, DMCA-takedown compliance officers, legal counsel, etc., to take a stand against the bullies -- not only when push comes to shove and someone files a lawsuit, but in the small, everyday ways that cumulatively alter our perception of what constitutes fair use.
  
• Support and advocate supporting legislation that seeks to turn back the tide by providing affirmative protection for traditionally legitimate activities.
  

That's my take. I'd like to hear yours.

Bloomberg is running a pretty long feature on movie piracy, particularly on the internet (Time Warner, Disney, Viacom Lose $3.5 Billion to Film Pirates). The piece is not as skeptical of Hollywood's claims as I would prefer, but it is actually a pretty good summary of many of the issues. I would recommend it for those who haven't been paying close attention to these issues and want to catch up a bit.

Bonus: Fellow Copyfighter Jason Schultz is quoted.

If regular readers haven't guessed by now, I'm a huge fan of annotations. It is my humble opinion that one of the great annotative projects of all time was Mystery Science Theater 3000 (aka MST3K).

MST3K was (alas, it is now only available on DVD) a wonderfully creative television show (there was also a movie, MST3K - The Movie) with a relatively simple conceit - three characters (a human and two intelligent robots) are mentally tortured (for reasons beyond the bounds of this post) by being forced to watch bad B-grade science fiction movies from the 50s and 60s (MST3K FAQ - The Basics). However, rather than meekly submitting to the torture of terrible acting, atrocious plot lines and cheesy special effects, the three characters retain their "sanity" by providing a running comedic commentary to the movie, while their silhouettes (we see them as seated in a theater) are superimposed on the bottom of the movie image. In general, the commentary is witty, funny and much more entertaining than the original movie production.

Anyway, I came across this cool copyright-related quote from MST3K on 'Botspeak, an MST3K glossary/dictionary:

"Amazing Grace" spiritual song beloved by small-town residents in movies on account of its being royalty-free

Teleread asks: Should library e-books contain wikis?

Heck yeah! Annotation, annotation, annotation, baby! What can I say? I guess I'm just a fan of annotating things. One might even say I'm obsessive.

Joe Gratz has a nice, short copyright analysis of an unusual sampling case involving a NATO radio station for classified communications (In Which Joe Defends A Big Record Company):

Here’s the story. Irdial put out a CD full of recordings of shortwave “numbers stations” called The Conet Project. The numbers stations are broadcast anonymously and more or less everyone acknowledges they have something to do with international espionage. For this reason, the recordings themselves are probably either not covered by copyright at all (in the case of recordings made by the United States government) or are protected by rights that are extremely unlikely to be enforced, since doing so would blow the broadcaster’s cover. [emphasis, links in original]

Go. Read. And, Joe, Bravo Zulu.

via Furdlog

OpenTextBook.org is an open source textbook project. Anyone can add to and edit the textbook (which seems to be solely dedicated to mathematics, currently), though you need to know how to use CVS to contribute. The book has a daily PDF snapshot available and an Attribution, Non-Commercial, Share-Alike Creative Commons license.

Really, this is a pretty good idea. However, I seriously question whether professors and educators will support the use of such books in the classroom. Certainly the textbook publishers are going to lobby against it (it's big, big business!). It will also be interesting to see how happy professors are that students are taking notes from class and adding them to a collaborative book (I seem to remember a case along these lines, or maybe it was just a hypothetical - anyway, I don't have time to look it up).

via BoingBoing

Doug Simpson links to and provides some good analysis about a recent First Monday article (Anonymity Inhibits Social Control in P2P Nets?). The article is Pirates, sharks and moral crusaders: Social control in peer–to–peer networks and deals with social norms, including copynorms.

The basic gist of the study is that anonymous social networks have fewer effective norms than large, closed networks. For example, child pornography is much more widely available on the open network than the closed network. Presumably, small, closed networks would have even more effective norms.

This is actually good news for copyright holders. It means that if they modify their policies to function in accord with and reinforce certain copynorms, such as the no free riding norm, they will be able to thrive. However, if they continue to fight existing and developing norms, they are likely doomed.

See also, To Save Copyright We Must Reform It.

A recent Register article on a new program that permits automatic discovery and creation of a filesharing LAN via WiFi has been getting a lot of attention recently (Promiscuous BluePod file swapping - coming to a PDA near you). I didn't really look closely at the article because, to be honest, I kind of assumed such a tool already existed. This is important software, but I think the spin is missing much of the point.

It is clear to me that the basic software concept is a no brainer and even a necessity in our increasingly unwired world. After all, there are many obvious legitimate uses for such a service. Anytime people gather physically such software would be very useful in transfering all sorts of files and information. Papers and notes can be zapped around during meetings, conferences and class. For more examples of non-music related uses, see Social Twister: Pocket Rendezvous: Spawning Connectivity.

However, the music sharing aspect is less impressive to me. I have to disagree with Derek Slater on how interesting it is (WiFi File-Swapping). I don't really see much more than novelty value in being able to join a filesharing network with complete strangers in a physical space. Are you really going to want to share that much with strangers you pass on the street or a local coffeeshop? It is one thing to be able to transfer with someone you've made some connection with, but to promiscuously advertise your files and interests to everyone around? Sure, such software would make fileswapping parties a bit easier, but they're not that hard to set up in the first place. Read on...

Continue reading "WiFi WANs and LANs"

WIRED has a good article on the culture of videogame sprite comics (You, Too, Can Be a Comics Whiz). Basically, comic strip artists use pre-existing images from videogames and create comic strips from them. The prime example WIRED provides is Bob and George, which uses images from Megaman videogames. B&G is actually a quite interesting combination of videogame fanfic and comic.

Strangely, while the article discusses the controversy of artists using pre-generated imagery to make comics, there is no mention that such use is not limited to sprite comics. Indeed, "clip art" comic artists have been quite popular outside the sprite world, including such mainstream works as Get Your War On and This Modern World.

Nor is there a mention of the similar use of videogames to make video, one of my favorite art forms, aka machinima. For example, Red vs. Blue uses almost no original imagery in their work (all the action takes place within the videogame Halo), yet surpasses the quality of many mainstream television shows.

Nevertheless, the article does a good job of pointing out the legal limbo these comics, like fanfic, reside in. The game companies refuse or are highly reluctant to license, but they seldom seem in any hurry to go after the works legally - something you don't see much with regard to other content industries. Overall, I think this is a good thing, given the present status of copyright law. Over time I believe that sprite comics and machinima will continue to grow in respect and cultural cache such that companies will encourage their creation.

GrepLaw points to an excellent group of remixed commercials that take familiar sales imagery and turn them into political and social commentary (Commercial Remixes). You can see the commercials here: Commercial Jams. GrepLaw guesses that,

Hummer , FOX, Army, Air Force, Kodak, Sports Center, Ravioli, and Fleet aren't too happy about seeing their content ripped, mixed, and burned in this fashion.

These commercials are very cool, not because I necessarily agree with their leftist viewpoint, but because they are expressed rather well (mostly). Prof. Larry Lessig asks, "does anyone know of great conservative remix culture? Attacks on Kerry? Or liberals?" (remix culture).

Television remains one of our most powerful mediums. Video is and will remain crucial to promulgating memes. This is why video remix culture is a critical element necessary to empower democratic discourse. Of course, the question remains of how to efficiently and effectively distribute these works. Hmmmm ... broadcatching, perhaps?

The Inquirer has an interesting story about a Danish company that is providing internet porn subscriptions (after office hours use only) for its employees (Danes permit office p0rn):

Danish Broadcasting's DR Nordjylland reports that the company's director, Levi Nielsen, believes that access to p0rn is a natural fringe benefit for workers, like a free phone or a company car.

Perhaps, as usual, the marketing and distribution of porn is leading the way for the marketing and distribution of other media goods. I've always thought that providing music subscriptions as a fringe benefit to employees would make an awful lot of sense. In particular, it would make great sense if there were a voluntary blanket licensing agreement.

Tax benefits for the employer, large guaranteed income base for the copyright holders. Seems like a win-win to me. After all, the pornographers probably benefit from the Danish company's scheme, since the employees searching for porn were probably looking for free porn.

Caveat: Actually, I'm somewhat skeptical of the story, but who knows?

Incredible Donald Duck-themed museum show, in German: Die DUCKOMENTA. I'm guessing that it is Disney-approved, but I can't tell from the website. Still cool, though.

One common response to the RIAA's legal campaign against P2P uploaders is that filesharers will simply move to darknets where the RIAA's spies won't be able to follow. There is something to these arguments. The smaller a darknet, however, the more difficult it will be to find more obscure files. Thus, there will be growing pressure for the users to either opt for a legitimate download service which has convenient access, or to grow the darknet. Unfortunately, the bigger a darknet gets the less manageable it becomes and the easier it is to compromise.

A perfect example of this comes from The Register, which reports that anti-spam activists have infiltrated various spammer forums (Spam fighters infiltrate spam clubs):

Steve Linford of Spamhaus said spammers know this [that their "private" forums have been infiltrated] already but they don't know who amongst their number is working for the other side. In theory the members-only forums of these sites is accessible only by invitation and only to individuals who have a proven track record in spamming.

One would think that spammers would have a significant interest in protecting their networks from compromise. After all, from the report it sounds as if many spammers are engaging in many legally questionable tactics. Yet the "private" forums were still infiltrated. How much easier will large darknet filesharing networks be compromised?

Darknets for filesharing without fear of lawsuit can work, but only if they remain among small groups of friends known to each other. Once a darknet grows beyond a small group of people known to each other, they become ripe for infiltration. It is between the inconvenience and administrative costs of darknets and the current, excessive price of legitimate downloads that the P2P filesharing answer will be found.

via Slashdot

I've always wondered how the heck the music industry has made so much money on ringtones (currently, a $3 billion market). Typical charges are $1-$3 for a 30-second snippet of a song that plays poorly on your phone while you can get a high quality version of the whole thing for $0.99 on iTunes. Well, as I suspected, that business model is coming under threat.

The Mercury News reports on software from Xingtone that let's people use their existing music collections to make ringtones (Do-it-yourself ringtone software encroaching on potential profits, some record labels say):

The Los Angeles company's $15 software, sold online, allows anyone with average computer skills to take an MP3 file or favorite CD track, trim it to create a 30-second ringtone and send it to the phone with the press of a button -- just like a text message.

Reactions to the software are mixed (which is an improvement from the likely reactions 5 years ago). Some music distibutors see the software as a marketing tool, others worry that it is cutting off a digital revenue stream just as it is taking off. Cell phone companies also have a mixed response with some blocking user-created ringtones while others don't worry about it much.

Despite the mixed response, I wonder if music distributors are really ready to forgo a potentially "massive" market. I wouldn't risk serious money that a lawsuit against the service won't eventually be launched.

Jason Schultz @ LawGeek, responding to Yochai Benkler's suggestion that while music will undoubtedly survive peer-to-peer, the record labels might not:

What we need is not for the record industry to 'die' but rather to have the industry evolve. We still need methods of marketing and distributing music. P2P does a nice job of distribution but it has yet to demonstrate that it can market an unknown band on its own to the same scale that the RIAA can. P2P does a nice job of distribution but it has yet to demonstrate that it can market an unknown band on its own to the same scale that the RIAA can. [DJ Dangermouse is a notable exception, although one could argue that the coverage in the NYTimes, the New Yorker, Entertainment Weekly, and LA Times didn't hurt].

The bottom line is that as much as we hate the evil aspects of the recording industry, we mustn't discount the actual good it produces, both socially and economically. If P2P is really going to succeed in moving music forward to the next era, it's going to have to find substitutes for these benefits that the RIAA currently provides. If we are unable to bridge this gap, I fear losing the record labels will, in fact, hurt artists and music lovers.

The Second Circuit this week issued a very interesting decision reversing a district court's summary judgment and injunction enforcing a copyright on a compilation of poems. In 1996, Stuart Silverstein published a book of Dorothy Parker's previously uncollected poems, claiming copyright in his compilation. In 1999, Penguin Putnam Inc. published Dorothy Parker: Complete Poems, which includes 3 previously published collections of Mrs. Parker's poems plus a section of all but one of the poems in Silverstein's compilation, in chronological order rather than in the order in which Silverstein had arranged them in his book. The lower court granted summary judgment for Silverstein and enjoined sales of Penguin's book. The Second Circuit reversed, holding that Silverstein's copyright in the mere selection of the poems in his compilation was too narrow to support an injunction against publication of the Penguin book.

Continue reading "Common Sense on Compilation Copyright- The Dorothy Parker Case"

Famed movie lover and renowned director Quentin Tarantino doesn't think copyright infringment is all bad (Tarantino says film piracy "not 100% black and white"). At an "anti-piracy conference" it is reported that,

The former video clerk turned superstar-filmmaker said that he had bought bootleg copies of old, hard-to-get films in New York to help recreate scenes in his blockbuster "Kill Bill", the second part of which is being released in many countries.

So, not only does Tarantino admit to benefiting from the fruits of infringement, but he is also admitting copying of scenes from various films. If he wasn't making so much money for Hollywood, the MPAA would certainly be sending the Deadly Viper Assassination Squad after him.

Tarantino would also be guilty of encouraging film piracy in China: "In the case of China, I'm glad they're pirating it. In a closed Communist country I'd rather be seen than not seen," he said.

You can see a fairly extensive list of the films Tarantino referenced in Kill Bill Vol.1 and Kill Bill Vol. 2 here: The Quentin Tarantino Archives' Guide to the Movies that Inspired Kill Bill.

via Techdirt

A pair of UC Berkeley SIMS (School of Information and Management) students (Bill French and Parker Thompson) have, for their masters' degree project, developed new P2P music sharing software called, Trifecta. The subtitle of their project, "Creating P2P Software that Enables Fair Use," shows that this is not simply an engineering project, but a legal one as well (as befits students of Pam Samuelson). The software is described thus:

Trifecta allows users to lend and stream sound recordings to friends and other personal acquaintances, two uses that we maintain are fair because private, noncommercial sharing and performance are consistent with the rights afforded to consumers by the first sale doctrine and the right of private performance.

The actual design is more nuanced than that brief description, but the basic concept is that neither the people providing the software nor the people running the Trifecta client could be successfully sued by the copyright industry. Read the paper: Trifecta: Creating P2P Software that Enables Fair Use [PDF]. A download of the application is "coming soon."

I liked what I read in a brief skim of the paper. Whether the system actually provides full legal protection is subject to debate (I, of course, think it should be legal when used as intended). Of course, there would be ways to subvert the intention of the project, but why bother since much more open P2P systems are already out there?

via Not Quite A Blog

Martin Schwimmer's must-read Trademark Blog points out a very interesting video mash-up combining scenes from "The Apprentice" with footage of the president: Trump Fires Bush. Schwimmer also helpfully points to a very on point decision with regard to political parodies adopting commercial elements: MasterCard vs. Nader [PDF].

MasterCard sued perennial presidential candidate Ralph Nader for trademark violations when Nader's campaign parodied MasterCard's famous "priceless" advertising campaign. Rightly, the case was dismissed at summary judgement. Of course, the MasterCard decision was a trademark case. In "Trump Fires Bush" actual footage from "The Apprentice" is used, raising a number of copyright issues.

Although I think there is a clear fair use defense of parody ... I can imagine a judge declaring that the use of NBC's footage is actually satire, which doesn't get a fair use defense.

The Second Circuit Court of appeals today issued a ruling that republication on the Internet of quotes from an illegally acquired seminar manual can still be fair use, despite the fact that they were acquired in bad faith. The Court held that while good/bad faith does factor into the equation, the overall issue of transformation is what is most important to deciding what is fair and what isn't.

While the majority opinion will only hold interest for the true lawgeeks in the audience, I recommend reading Judge Dennis Jacob's concurring opinion which contains many spirited exhibitions on fair use, including this gem:

"Fair use is not a doctrine that exists by sufferance, or that is earned by good works and clean morals; it is a right--codified in § 107 and recognized since shortly after the Statute of Anne--that is “necessary to fulfill copyright’s very purpose, ‘[t]o promote the Progress of science and the useful arts . . . .’”

The New York Times runs a creative piece on Disney's aging mascot, Building a Better Mouse. As its writer tells Mickey's history, the Times has eight artists update the mouse's image for 2004: supermouse, hipster, and aging smoker among them. The article mentions the Sonny Bono copyright extension that keeps Mickey locked up beyond his 75th birthday, but doesn't discuss the copyright status of the illustrations -- fair use transformations or infringing/licensed derivatives? I'd go with the fair use, but would an independent artist or publisher without the backing of NYT-legal have similar confidence?

Engagdet notes:
This has been around for awhile now in Britain, but AT&T Wireless is the first carrier in the US to offer Shazam’s song identification service. If you hear a song you like (or don’t like, as the case may be) but don’t know who it’s by, you can just dial #ID (or #43) on your cellphone, hold the phone near the speaker for at least 15 seconds, and then moments later you’ll get a text message with the name of the song and recording artist. They say they’ve got a million songs in the database, and that for right now you can try it out for free, though later it’ll cost 99 cents a pop.

I'd be curious to know if/how AT&T is handling the copyright issues for this service. Are they are instructing their customers to make digital retransmissions of copyrighted sound recordings? What about the "million songs" they have copied into their database? Is this infringement? Will the RIAA sue? Inquiring minds want to know...

Salon.com has an article this morning about the controversial SCO v. Linux battles (Making The World Safe For Free Software). It's mostly an overview piece of the history behind the conflict, but it also includes a nice little analysis of how Groklaw, the legal blog dedicated to chronicling the fight, has provided a sort of "open source" approach to researching many of the legal and factual issues in the case, relying on its thousands of readers to examine the allegedly infringing code and perhaps saving defendants like IBM hundreds of thousands of dollars they would have otherwise spent on legal or consulting fees...

Continue reading "Salon on Groklaw's Open Source Approach to Legal Research"

Influential rock-and-roller David Bowie and car company Audi have teamed up to mash-up. Audi is running an ad featuring a mash-up of Bowie's classic "Rebel, Rebel" with his new "Never Grow Old".

Now they're holding a contest for the best fan-submitted mash-up of two Bowie songs, and giving an Audi TT to the winner (as vetted by visitors, judges, and Bowie himself). And the mainstreaming of remix culture continues...

Link

According to the RIAA, music sharing of thousands of songs is piracy. So why aren't they suing the troops?

From the NYTimes via BoingBoing:

At the Kirkush Mil