Category: Copyright
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.
May 21st, 2008
Stanford Information Law Symposium
Though it could scarcely be more cumbersomely named — the Transatlantic Information Law Symposium — this upcoming (and free) program at Stanford Law School looks excellent, featuring such big thinkers as Mark Lemley and Stefan Bechtold, and such big topics as privacy, free speech, the future of Internet regulation, and one that looks particularly intriguing from the standpoint of social media and attention: property vs. contract to govern online behavior. I’d like to go, though the timing’s not great for me; if you’re going, blog the wealth.
(Image by Maveric2003, CC Attribution-2.0)
May 14th, 2008
A short, pointed list of ‘wonderful policies’
In putting together a list of what I consider to be relatively clueful site policies, terms, and guidelines, I just stumbled on BoingBoing’s List of Wonderful Policies. And it is.
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 »
February 18th, 2008
Lawrence Lessig, congresscritter nominee
TWiL regular John Palfrey announced a great idea last week while we were recording the forthcoming episode: a Facebook group drafting Professor Lessig for a recently vacated Congressional seat. Says John, "It’s high time we had our first true Free Culture candidate for public office." The Facebook group is about to hit 2,000 members, and there’s an official Web site as well (get your badges here). Seems appropriate in an election season so unusually filled with promise for needed change.
For his part, Professor Lessig isn’t ruling anything out, telling Ars Technica, "At this point, I’m not really able to say anything. I’ve been kind of stunned by the push of many, and am away with my family this weekend to think things through." More from Ars Technica, TechCrunch, and Slashdot.
[Update, 2/20/08 6:51 a.m.] TWiL #12 went up yesterday.
[Update, 2/20/08 6:55 a.m.] Via Jonathan Zittrain, a new site from Professor Lessig, lessig08.org: "I have decided I want to give as much energy as I can to the Change Congress movement. I will decide in the next week or so whether it makes sense to advance that movement by running for Congress."
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 15th, 2007
Want to know what over 7,500 ZDNet readers think about copying digital media?
Then get on over to Ed Bott’s Microsoft Report, where his poll on digital media ethics has garnered an overwhelming, and highly educational, response.
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).
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.
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