Category: Licenses
June 16th, 2008
Overly restrictive A.P. quoting guidelines risk winning battles at the war’s expense
Saul Hansell reports today that the Associated Press "will, for the first time, attempt to define clear standards as to how much of its articles and broadcasts bloggers and Web sites can excerpt without infringing on The A.P.’s copyright."
The problem with “clear standards” is that as Tim Wu (quoted in the article) correctly points out, the legal standard is unclear, and subject to interpretation on a case by case basis. There are instances when reproducing the entire work (or large portions thereof — “Fisking” we used to call it, seems like eons ago) with sufficient commentary is fair use. The A.P.’s vague statement that it wants to police what appears to be reproduction for reproduction’s sake as opposed to commentary, thus is a fair representation of what it’s entitled to do by law; anything more specific might not hold up.
Given this, it’ll be interesting to see what the A.P. cobbles together with the Media Bloggers Association, which of course does not act for and can’t bind the whole blogosphere and Web. If, as the statements to Hansell suggest, it’s as restrictive as purporting to make brief direct quotations against A.P. policy, the A.P. will either have to backtrack or try to get judicial buy-in on a policy that in all likelihood would be deemed overbroad.
(Image by SideLong, CC Attribution-2.0)
Related: Mike Arrington, Here’s Our New Policy On A.P. stories: They’re Banned, and all stories and posts linked from there; Techmeme re same.
April 23rd, 2008
Upcoming panel on exploiting the social graph
At a conference I attended last month on social media law (I have some interesting notes I’ll post soon), I was struck by how lawyers for social media giants such as Facebook, MySpace, Google, find speedy ways to accommodate powerful copyright holders on infringement issues. When it comes to concerns over exploitation of user data, however, their solution is to draft the most draconian terms of service imaginable (knowing no one pays real attention), consider themselves legally covered when user complaints crop up, and occasionally ratchet down the terms or otherwise execute a subtle course change when things begin to get ugly: as with Beacon, or Billy Bragg, or, presumably soon, Google Reader.
We’re going to further explore this topic in a panel I’ll moderate at OnHollywood on June 10th. What do you think about different approaches to managing user data? If none of the poll answers fit or you want to expand, please comment.
Loading …March 31st, 2008
Sparks fly over copyright at Tech Policy Summit
The group of copyright scholars and advocates gathered Wednesday at the Tech Policy Summit in Hollywood demonstrated that while copyright must function in a converged world, opinions on how it should function are as divergent as ever. The panel (pictured from left to right) consisted of Patrick Ross (Executive Director, Copyright Alliance), Fred von Lohmann (Senior Staff Attorney, EFF), Matt Zinn (VP and general counsel, TiVo), and moderator Doug Lichtman of UCLA Law School.
I. Copyright Policy
The primary bone of contention was the extent to which copyright law does and should leave room for permissionless innovation. Matt Zinn and Fred von Lohmann discussed the benefits of such a system:
Zinn: Fortunately, the Constitution got it right. Copyrights are not absolute rights. TiVo did not have to go to the rightsholders for permission [to build a product that allows flexible use of lawfully acquired copyrighted content]. If they’d had to, there’d be no DVR. With no DVR, there’d be no VOD.
Von Lohmann: In recent years, the law has begun to appreciate the value of organically derived genius, the wisdom of the crowds. The copyright system is doing a surprisingly good joyb of creating rights that leave room for the kind of diverse marketplace [Matt] was just talking about. iTunes, TiVo, iPods, Betamax: all devices that depend or depended on copyrighted works for a large portion of their value, and that’s a good thing. Copyright law in its current form seems to trust markets quite a bit. This is not the death of copyright as we know it. In the room between the overreaching desire of rightsholders for control and what the law provides, innovation blooms.
Patrick Ross, while conceding von Lohmann’s point that "there’s no moral, ethical, or legal right to a business model," sought to reframe the issue, saying it’s not about business models, it’s about copyright:
Asking and getting permission is a key part of the system. . . . Where you get into a problematic situation is where the rights are being so abused and no legal authority is controlling it.
Picking up on Ross’ defense of a permission-based system, Doug Lichtman challenged Matt Zinn on his assertion that TiVo could not have gotten permission had it asked first. He posited that TiVo would have been a value proposition for the television networks, and they would have been willing to partner with TiVo and give back a share of the enhanced value they would realize by meeting the audience demand for such a service. Zinn disagreed:
In Hollywood, it’s not just about the money. It’s about all the money.
Von Lohmann concurred:
Disruptive innovation does not get blessed in incumbent industries. When the music labels tried it with MusicNet, PressPlay, and all the other companies that are now smoking holes in the industry, it didn’t work.
He went on to point out that one reason incumbent industries shun innovation is their reluctance to cannibalize their other businesses: here, sales of videocasettes, DVDs, etc.
At about this point in the discussion, Jay Williams of the MPAA stepped up from the audience to suggest Matt Zinn was being philosophically inconsistent about intellectual property, since TiVo recently won a patent battle with Echostar/Dish Network. "What are the value of those patents? Aren’t they barriers to innovation?" Read the rest of this entry »
January 30th, 2008
Docstoc for law school (a.k.a. today’s young whippersnappers don’t know how good they have it!)
My goodness. Check out the impressive array of law school outlines and other law school and bar exam resources being amassed at Docstoc. Aside from being incredibly useful, my favorite thing about this service is its built in Creative Commons licensing. A perfect place to share form legal (and other) documents — as Marc Canter discussed wishing to do on a recent episode of The Gang.
Bonus link: Are Cease-and-Desist Letters Subject to Copyright?
P.S. You know you’re becoming an elder-blogger when:
- you’re just as apt to think MSM refers to methylsulfonylmethane as mainstream media, and
- you’re just as apt to think Idoru is one of your dozens of daily nutritional supplements as a William Gibson novel.
P.P.S. Don’t get me started on the elder hottie thing; dragonlike, I might just aim a hot flash in your direction.
(Image of Docstoc’s CEO and Pepperdine law grad Jason Lawrence Nazar by Brian Solis, CC Attribution-2.0)
December 24th, 2007
Christmas is a time for mashups
As I inevitably download "new" holiday music each year, it’s painfully apparent we wouldn’t *have* much new holiday music if it weren’t for sampling, remixes, remakes, and mashups. The iTunes List of 44 Holiday Songs for 2007 is testament to this fact, as are the many Christmas remixes and dubs dotting the ‘Net and the digital download inventory.
But all this Christmas cheer does not come cheap, especially for those who mix, mash, clip, and copy without jumping through Byzantine (if not impossible) licensing hurdles. Such artists may find their stockings stuffed only with costly lawsuits and astronomical damages liability. As Professor Patry wrote of the Bridgeport decision, "[I]n the end, it is creators of new sound recordings who build, transformatively on the works of predecessors who will suffer the most, and thereby all of us."
Even the likes of Disney are not necessarily immune. Do you hear what I hear? Namely, "War is Over" making a guest appearance in this Disney/Hannah Montana remake of "Rockin’ Around the Christmas Tree." (Starting at 1:50.)
Katie Wedell was kind enough to free "The List: 44 Holiday Songs for 2007" (whence Hannah/Ms. Cyrus wound up on my stereo) from the iTunes Store, should you care to browse. Keith Richards’ Run Rudolph Run is a must-have:
1. The First Noel - Josh Groban and Faith Hill
2. Mistletoe - Colbie Caillat
3. Rockin’ Around the Christmas Tree - Hannah Montana
4. Happy Xmas (War is Over) - Maroon 5
5. Run Rudolph Run - Keith Richards
6. Santa Baby - Kellie Pickler
7. Frosty the Snowman - Toby Keith
8. Season’s Greetings - Robbers on High Street
9. Have Yourself a Merry Little Christmas - Emmy Rossum
10. Let it Snow - Michael Bolton
11. All I Want for Christmas - Keith Sweat
12. Don’t Shoot Me Santa - The Killers
13. Run Rudolph Run - Billy Ray Cyrus
14. O Come All Ye Faithful - Katharine McPhee
15. Oh Come Oh Come Emmanuel - Joshua James
16. O Holy Night - Mandisa
17. God Rest Ye Merry Gentlemen / Feliz Navidad - Chanticleer
18. It Came Upon the Midnight Clear - Mannheim Steamroller
19. Silent Night - Lifehouse
20. On Christmas Day - Nazanin
21. What Child Is This - Michael W. Smith
22. Sleigh Ride - Relient k
23. Marshmallow World - Raul Malo
24. Jingle Bells - The Puppini Sisters
25. Do You Hear What I Hear - Yolanda Adams
26. Silver Bells - Mindy Smith
27. Wonderful Christmastime - Jars of Clay
28. The Dreidel Song - Sister Hazel
29. My Grown-Up Christmas List - Clay Aiken
30. Last Christmas - CASCADA
31. Santa Baby - Carter’s Chord
32. We Need a Little Christmas - Kimberley Locke
33. The Best Christmas - Christopher Cross
34. Ding Dong! Merrily On High - The American Boychoir
35. Santa Claus is Coming to Town - Bucky Covington
36. Here Comes Santa Claus - Tracy Lawrence
37. Silent Night - Sinéad O’Connor
38. Bring Me Love - Marié Digby
39. Christmas in Dixie - Trent Tomlinson
40. Have Yourself a Merry Little Christmas - Bebo Norman
41. I Saw Three Ships - Rick Springfield
42. Please Come Home for Christmas - Josh Gracin
43. Chanukah, Oh Chanukah - Tor Hyams and JKidz
44. Holiday Bounce - Yo Yo Yo Kids
November 20th, 2007
Kindling a controversy
Ed Champion is investigating whether certain bloggers included in Amazon’s Kindle launch were made “Kindle Blogs” without authorization or licensing. He cites two examples (Daniel McGowan and Cork Gaines) of bloggers who apparently are included in the Kindle Store without their permission. This surprises me. My personal blog Bag and Baggage is there in the Kindle Store too (I’m also quoted in Ed’s post), but under an express agreement. It could be the Kindle team had some misunderstanding about the ramifications of the noncommercial use restriction in certain Creative Commons licenses; the initial email I received about participating did reference my Creative Commons license, but neither McGowan nor Gaines seem to use Creative Commons so I’m at a loss as to what’s going on. In my case, Amazon had lots of communication with me about including Bag and Baggage, and crossed its T’s and dotted its I’s on the legal front.
[Updated 10:08 p.m.] Ed Champion has unearthed two more bloggers who are less than pleased with being Kindleized.
[Updated 11/22, 9:36 a.m.] Engadget reports the Kindle gave Amazon plenty to be thankful for, selling out the first batch in just 5.5 hours.
October 8th, 2007
In the trenches with Live Web law at EFF’s Bootcamp
If you’re doing business on the Live Web, get thee this Wednesday, October 10, to EFF’s Bootcamp, “a one-day session for Web 2.0 workers on user generated content:”
Does your interactive company have to contend with the maze of laws dealing with user privacy and publishing user content? Want to do the right thing by the online community that gives your business value, and still fulfill your legal obligations?
EFF is hosting a one-day session for Web 2.0 workers who handle issues arising from users and user-generated content. From DMCA to CDA to ECPA, the law surrounding internet content can be confusing, especially for the folks who have to decide on the fly whether to let something stay up or take it down, or whether to give their customer’s name to the FBI agent on the phone. Let us help.
This is an incredible and cheap (between $100 - $200) opportunity to learn how to spot and avoid trouble from the best of the best in this field: EFF’s staff attorneys. (If the registration fee is still too rich for your blood, then apply for one of the 20 available Google-sponsored scholarships, explained here.)
I am hard pressed to conceive of a Web-based communication platform, community, or business model that doesn’t need this kind of overview. For nine examples of why, check out Rafe Needleman’s 9 fun ways Web 2.0 startups can commit legal suicide, gleaned from an interview with Fred von Lohmann in conjunction with the upcoming event:
Von Lohmann’s two big takeaways: First, be sure you know when you’re stepping into a danger zone. Music? Financial data? Private information? Kids? Don’t let yourself think you’re more clever than another industry’s legal machine. Second, realize that no matter how hard you try to stay clean, ‘You’re probably doing something wrong already. For the most part it doesn’t matter, but something just might.’
For yet more examples of the legal minefields Web businesses must daily navigate, you might want to eavesdrop on Fred von Lohmann’s IP and Innovation Policy class at Stanford by way of its blog. Bring your Aleve; plenty of brain teasers there.
Bootcamp starts at 9:00 a.m. Wednesday at Fenwick & West in Mountain View. (Brilliant move by the firm, hosting this. I’m sure plenty of Fenwick’s existing clients are thrilled for the opportunity, and once EFF’s staff has had the chance to terrify educate all the non-client attendees, the stampede to sign the firm’s retainer letter will leave some wondering how they wound up in Pamplona.)
(Image by A. www.viajar24h.com, CC Attribution-2.0)
September 26th, 2007
Creative Commons, the Live Web, and quickie divorce info centers
Dennis Kennedy pointed me to Shelley Powers, who pointed me in turn to Slashdot and Professor Lessig. All concern a lawsuit pending in Dallas, TX against Virgin Mobile and Creative Commons concerning Virgin’s advertising use of a minor’s picture posted by the girl’s youth counselor to Flickr under a CC-Attribution license (which permits commercial use). The Flickr user/youth counselor/photographer is a plaintiff in the suit, contending Creative Commons failed “to adequately educate and warn him … of the meaning of commercial use and the ramifications and effects of entering into a license allowing such use.”
Creative Commons has been sued for negligence, the catch-all of tort law. Someone is negligent when s/he fails “to act with the prudence that a reasonable person would exercise under the same circumstances.” The plaintiff posits that Creative Commons had a duty to warn about what commercial use is and the fact an “Attribution” license permits it. Creative Commons should have little trouble demonstrating that assuming it even owes such a duty, the duty was satisfied.
Putting aside for a moment the Texas wild card [”Texas courts have twice … held that simply providing some legal forms (wills, but not deeds) constitutes the practice of law,”], this claim should go nowhere. The Creative Commons “Before Licensing” page explains, in essence, why CC is the Live Web’s quickie divorce information center. That is: it can help users accomplish a primary legal objective at a fraction (or none) of the cost that otherwise would be associated with the transaction, but it is not intended as, and does not purport to offer, anything but a one-size-fits-many solution. Creative Commons cautions users to “[m]ake sure [they] understand how Creative Commons licenses operate.” In addition to the related explanations of the Attribution and Noncommercial license attributes provided by Creative Commons itself, Flickr (which interestingly isn’t a defendant) advises users that the only restriction imposed by an Attribution license is that the user give the licensor credit. Flickr points users to relevant portions of the Creative Commons site for more detailed explanations and information. Flickr also requires users like the plaintiff in this suit to ensure they do not use the service to, among other things, “harm minors in any way,” or post material they do not have a “right to make available under any law” or that “violates proprietary rights” of any party. Creative Commons similarly cautions users to make sure they have the authority to distribute works under the license they select, and of course tells them it is not a law firm, does not provide individual legal advice, etc.
From my admittedly noncomprehensive review of Creative Commons’ FAQs and other information, it seems to me the site complies with the ABA’s Best Practice Guidelines for Legal Information Providers (for that matter, non-defendant Flickr does so as well by linking to the appropriate Creative Commons material), and that should factor into any reasonableness test. Shelley believes this suit was inevitable, and she may be right, but I disagree with her about why it was to be expected. Creative Commons didn’t invite this suit. Rather, it had the fortitude to provide a range of possible solutions to some of the problems raised by the miasma of our copyright system. Willingness to innovate in areas that lack a wealth of on-point legal precedent can always make you a target.
(Image by hitormiss, CC Attribution-2.0)
[Update, 9/26/07, 1:00 p.m.:] In an update to her original post, Shelley Powers points out, as I have here in the past, that it’s possible for third parties to violate both copyright law and the terms of use for Flickr and/or its API. Something to bear in mind for both the users and misusers of Flickr (the latter of whom will inevitably, and this time correctly, be sued for such actions).
September 17th, 2007
IP and the user generated economy at TechCrunch40
Some very competitively interesting Web companies are being launched and/or featured today and tomorrow at TechCrunch40. In the wrap-up portion of the Community Collaboration session, former Napster executive Don Dodge was quick to note that many of these companies depend on user submissions and uploads to populate their services, and they need to be managing the IP considerations on the front end.
StoryBlender (a project from the creators of Cyworld) provides an online editing tool for collaborative video production. When pressed on the related IP issues, the presenters said they have learned from YouTube’s experiences and will have rigid policies (and presumably technology) in place to block uploading of copyrighted, unlicensed works.
It will be interesting to see whether AOL’s BlueString, which launched today at the conference and offers storage and sharing for photos, videos, and music, will take a similar approach. Its terms unsurprisingly put the copyright compliance obligations on the individual users. It invites users to upload their photos, their videos, and “their music” — though of course, as the ’80’s mix cd graphic now on the homepage suggests, BlueString users are unlikely to have created “their music” themselves, thus putting the service in the likely and unenviable line of fire of the major record labels.
Probably the biggest crowd favorite today was musicshake, a company that aims to change the assumption that a user’s “own music” was not created (at least in part) by the user her/himself. It’s a slick online music creation site, like GarageBand moved to the Web and made very user-friendly. The clips forming the foundation of musicshake creations are all licensed, and the company plans to let users sell their creations, keeping some of the proceeds themselves and kicking some to those providing the clips on which the finished work is built. It would be nice to see musicshake include Creative Commons licensing, but there was no mention of this today.
Two companies who either are or are contemplating offering Creative Commons licensing are docstoc and AOL’s BlueString (mentioned above). docstoc, which blends document storage with sharing and social networking, bakes in Creative Commons licensing à la Flickr, and BlueString’s terms advise users that they “may” have the option to apply a Creative Commons license to what they put on the site.
August 13th, 2007
Lawgarithms Links for 8/13/07
Remember that between entries here you can keep up with the Live Web (and other) issues I’m spotting by subscribing to my Google Reader Starred Items. Among the links now playing:
Two-word license agreement: “F— YOU!”, from Boing Boing by Cory Doctorow
Fair Use for YouTube & MySpace Users, from Slashdot by Zonk
What bloggers should know about copyright protection for their writing and photographs, from IP Law Daily by mamarant
Trademarks FAQ, from Blawg IT-Internet Patent, Trademark and Copyright Issues with Attorney Brett Trout by Brett Trout
Catching Up: Derivative Works and Fair Use, from IPTAblog by Andrew Raff
Avatar Rights, from Wonderland by Alice Taylor
Proposal to Make Suing Anonymous Avatars Harder, from Virtually Blind - Virtual Law | Legal Issues That Impact Virtual Worlds by Benjamin Duranske
Lawsuit Filed Against Second Life Avatar, from Top Tech News by Phil Davis
Prophesies, from Doc Searls Weblog by Doc Searls
A Guide to Google’s APIs, from Mashable! by Adam Ostrow
It All Comes Together: The getting good with BitTorrent roundup, from Lifehacker by Adam Pash
Most Popular DVDrips on BitTorrent (wk31), from TorrentFreak by Ernesto
Stop! Don’t click “I Agree” before you read the Terms of Service, from Yap 3.0 by Robin
YouTube, Google Street View: the copyright, trademark, AND privacy trolls are coming!!, from ZDNet Blogs by Russell Shaw
Getting data OUT of Facebook, from ZDNet Blogs by Dennis Howlett
Electronic Filing Of Copyright Applications Has Arrived (at least for beta testers), from Clock Tower Law Group’s shared items in Google Reader by Aaron Silverstein
Internet Vote-Swapping Legal, Says 9th Circuit, from Threat Level - Wired Blogs by Sarah Lai Stirland
Facebook, Identity, and OpenID, from Ministry of Intrigue by daniel@andrlik.org (Daniel Andrlik)
Let’s kill all the lawyers: web-based negotiation platform seeks to revolutionize the creation of contracts, from Online Guide to Mediation by Diane Levin
Taking Intangible Electronic Files is Criminal Fraud–NM v. Kirby, from Technology & Marketing Law Blog by Eric Goldman
Video Site Veoh Sues To Stop Universal, from Top Tech News by Richard Koman
Surfing your clickstream, from ZDNet Blogs by Ed Gottsman
Hyperlinking & the law: IMPACT guide to the essentials, from IMPACT® by Alex (note the focus of this piece is UK/EU)
Denise Howell is an appellate, intellectual property and technology lawyer who enjoys broad industry recognition for her expertise on the intersection of emerging technologies and law. See her full profile and disclosure of her industry affiliations.
Recent Entries
- Overly restrictive A.P. quoting guidelines risk winning battles at the war’s expense
- Section 230 to Twitter and others: Delete away
- Stanford Information Law Symposium
- A short, pointed list of ‘wonderful policies’
- Upcoming panel on exploiting the social graph
Most Popular Posts
- Section 230 to Twitter and others: Delete away
- Stanford Information Law Symposium
- Overly restrictive A.P. quoting guidelines risk winning battles at the war's expense
Top Rated
Premier Vendor Content Whitepapers, webcasts & resources from our Power Center Sponsors
- Marc Canter: The master of multimedia speaks
-
In this Super Techies interview, larger-than-life techie Marc Canter talks with ZDNet's Editor in Chief Dan Farber about his career as a multimedia pioneer.
- Watch the video >>
- Intel forum post: vPro is great, but who has the best vPro agent?
-
"Some agents have remote control and power issues with Vista; some agents server consoles don't work with 64 bit servers; some agents don't do IDE redirect. I have staged two companies with VPro machines, but have not installed an agent until I find the complete solution. Help!!"
- Follow an interesting discussion about the Intel® vPro™ technology platform >>
Archives
ZDNet Blogs
- All About Microsoft
- The Apple Core
- Between the Lines
- BriefingsDirect
- Collaboration 2.0
- The Core Truth
- Dev Connection
- Digital Cameras
- Ed Bott's Microsoft Report
- Emerging Tech
- Enterprise Alley
- Enterprise Anti-matter
- Enterprise Web 2.0
- Feeds
- Googling Google
- GreenTech Pastures
- Hardware 2.0
- iGeneration
- Irregular Enterprise
- IT Facts
- IT Project Failures
- John Carroll
- Laptops & Desktops
- Lawgarithms
- Linux and Open Source
- Managing L'unix
- The Mobile Gadgeteer
- On Sustainability
- Rational Rants
- The Semantic Web
- Service Oriented
- The Social Web
- Software as Services
- SOHO Networking
- Storage Bits
- Team Think
- Tom Foremski: IMHO
- The ToyBox
- The Universal Desktop
- Virtually Speaking
- ZDNet Education
- ZDNet Government
- ZDNet Healthcare
- Zero Day
The Green Enterprise
-
- A look into the enterprise to explore eco-friendly practices and innovations. In this ZDNet video series learn about what's motivating green tech, and how green technologies are impacting IT. 0:42
-
Harnessing the power of waves
3:13
-
Planting solar gardens
5:06
-
Fill your car for $1.10 a gallon?
1:43
- All series videos »
|
