Copyright Talk

Copyright. The concept is pretty simple – copyright provides a territorial claim to intellectual property (creative ideas set down in a fixed medium) that allows the creator to profit from the creation.
In practice, it’s a tough concept for people to grasp. The difference between owning an item, and owning what the item contains, is a difficult concept to grasp. Some of the difficulty is due to the new technologies that make reproduction of some things simpler than snapping your fingers. But most of the difficulty is really due to the fact that the distinction between owning an object that you can do anything with, and owning what the object contains, that you have no right to do anything with, is a darn difficult distinction to make.
To illustrate, let’s take a basic music CD. When you purchase that CD at a music store, you own the CD and you have the right to play it for yourself, your family and friends. You can loan the CD to anyone you want. You can give the CD away to anyone you want, even a resale store like Goodwill. You can also sell the CD to someone else. All of these things are perfectly legal and expected under the copyright law.
But suppose you decide that rather than loan the CD to a friend, you will simply burn a copy, because you want to continue listening to the CD but you want your friend to hear it also. That is not legal, because even though you own the physical disc, and you (presumably) own the second, blank disc that you burn the music onto, you do not own the right to create new products containing the music itself. When you create a new copy of the music for your own use, there is some argument that you are still within the rights that you bought to the music. But if you are creating new copies of the music for others to use simultaneously to yourself, then you have overstepped your legal rights.
Digital music is more complicated, because there is no physical product to help us distinguish between what we own and what we don’t own. When you “own” an mp3, you move it around all the time
The dilemma for copyright owners is to determine the best way to respond to this, or whether to respond at all. Clearly, if the things that people are doing with their digital music purchases are circumventing sales that the copyright owners were previously making, then the copyright holders have a problem and complaint. But if the uses are new uses that would never have resulted in sales in the first place - that is, I’m happy to have a copy of the song but if it weren’t free I would never have bothered to buy it - does it really infringe anything in a meaningful way?

That’s really the question.

Although the RIAA has recently said that it will stop suing individual who may be illegally sharing music files - in other words, people the RIAA believes may be infringing their copyright but not as a commercial piracy operation - it is still vigorously pursuing one remaining case in Massachusetts. The defendant, Joel Tenenbaum, has legal representation from copyright specialists through the Berkman Center for Internet and Society. Nearly all the previous individuals sued by the RIAA were unrepresented by any legal counsel at all, let any of such expert status.

The case was scheduled for a hearing today, which the defendant had asked to be webcast live. Webcasting is extremely rare in the federal courts, but the judge granted the request. However, the RIAA filed an appeal of the decision and so last night the Judge postponed the hearing until the appeal can be heard. Excerpts from the Judge’s order are here.

While it is clearly uncommon for any court proceeding to be webcast, most courts do allow recording of various types much of the time. It’s hard to imagine what reason the RIAA could have to try and stop the webcast other than the fact that many, many young people will potentially watch it in that medium, and young people are the primary group that has been targeted by the RIAA in the illegal file sharing cases.

If the RIAA wants to educate the music listening public on the rules of copyright and the negative consequences of violating those rules, it seems like a live webcast of a court case arguing those very points would be a wonderful venue. The audience tuning in to the webcast is likely to be the very audience the RIAA wants to talk to - and a well crafted legal presentation can do just that. The RIAA should welcome a targeted audience before which to make it’s case.

Or anti-social, or even just plain mean. We tend to collectively cringe at the thought of great art treasures being destroyed, and yet we allow private ownership of art works and the concurrent truth that private ownership means many of those works will be completely inaccessible to most, if not all of the world, merely at the whim of the owner.

So why do we feel so differently about music? Copyfight has an interesting discussion of a film that is basically being locked away from public view because the copyright owners of songs used in the film are asking unreasonable prices for the use of those songs. In this case, by unreasonable, I mean more than the film can possibly generate and therefore, more money than there is available. The take from Copyfight and some of the artistic community is that this is stupid for the song owners to do because it is against their own best interests, and by the way, it wrong to keep artistic greatness from the public.

Well, to that I say “bull whoopee.”

We have no public policy stating the great art must be available to the public. (Priceless paintings are sold to private collectors.) We have no “in loco parentis” system for overriding individuals’ decisions about how to manage their money and property (boy, wouldn’t things run a whole lot more smoothly if we did, though?). And why the hell didn’t the film-maker work all this out before she made the movie in the first place????? I can guarantee that if she had made a movie and then shelved it, she would raise holy hell if a distributor came along and released it without her permission and then told her she would get paid according to what he determined was a reasonable payment, whether she liked it or not.

The bottom line here is that copyright owners get to make the decisions about use of their work (with soem exceptions) and they get to do that even if the rest of don’t like those decisions. If you want to use copyrighted material in your own work, you had better get the permission and details worked out before you go ahead. If you don’t, and your own work is rendered useless, you have no one but yourself to blame.

Washington lawyer Thomas Perrelli has been nominated by President-elect Obama for the position of associate attorney general, third in command at the Justice Department. Perrelli has much experience with copyright and media law, primarily as legal counsel for the RIAA in a number of their lawsuits against individual file-sharers. While that does not necessarily tell us about his personal policy views, it does tell us he’s well-versed on the recording industry’s views of the very difficult issues surrounding digital media.

As deputy attorney general, the second in command at Justice, Obama has named David Ogden, who has similarly been involved in some high-profile copyright and media cases.

Both men are attorneys at large corporate law firms, and, as such, are almost de facto going to have experience representing “big business.” That’s what large law firms do. And since plaintiff’s side law firms are generally much smaller and lower profile, there are far fewer high profile attorneys who represent small companies or individuals likely to come to the attention of Washington at nomination time. That is, unfortunately, how things work. But I still think it is great that two of the top jobs at justice will likely be filled by men with more than a passing knowledge of intellectual property and digital rights, since those issues will be bubbling around Congress for years to come.

If you haven’t seen the President-elect’s website yet, check it out. So far, it has contained updates on appointments and policy positions in a near real-time manner, making it the go-to site for information. We still need the journalists and analysts to tell us “the rest of the story,” but it’s far more imformative than most government websites have been up to now.

A recent column in the New York Times considers whether the ease of finding used copies of books is causing - or at least contributing to - the cratering of the publishing business.

Although there has always been a used book market - and there is a specific provision in the copyright law that allows such sales - the columnist, David Streitfeld, makes the point that for the first time in history it is possible to find almost anything you want via the internet. Up until now, the ability to buy specific used books was limited by the physical location you were in - a used book and buyer had to be close enough geographically that they might actually encounter each other.

The internet, of course, makes all of us in close proximity, and Google makes it simple to connect, leaving almost nothing to chance. I myself belong to the Paperback Swap club, a site that works like a bunch of friends holding a book swap, only if you collected all the people and books in this club into one space you could never fit into anyone’s living room.

And I just opened a Barnes and Noble e-newsletter a few minutes ago that boasts they have “millions of used textbooks at savings up to 90%.” What student could possibly pass that up?

The used book market is obviously huge, but it can exist only if there is also a new book market. The number of titles of new books put out by big publishers may in fact drop as the amount of new sales necessary to service the used market adjusts, but it will in fact do just that - adjust. And if we have smaller runs of a larger number of titles because smaller publishers can stay in business as the large publishers become less able to dominate the market, isn’t that a good thing?

Perhaps we’ll eventually see DRM-like tools in books, where they self destruct after a certain number of years to cut down on the used sales life. Maybe that’s why so many of my paperbacks these days have pages falling out before I’ve even finished reading them.

The Wall Street Journal reports that the RIAA is planning to end its controversial anti-piracy strategy of filing copyright infringement lawsuits against any and all small time possible infringers, including young teenagers who send copies of favorite songs to friends.

The Associated Press adds more info to the announcement, but finds reason to doubt whether the RIAA has actually ceased filing lawsuits, as it claimed.

Meanwhile, the RIAA continues to report steadily dropping sales figures for the record industry. Currently, it claims that while digital sales are climbing, they are increasing more slowly than the decline in physical product sales, so that the overall sales figures are, in fact, dropping. The implication has always been that illegal file sharing and digital piracy was the primary cause of the slump in sales, and that there was a more or less direct correlation between the two.

HAH! What about the fact that more independent music became available to consumers at the same time as technology was making digital piracy possible? Perhaps the illegally swapped files weren’t cutting into sales at all (I’ll often take something offered free even if I would never have bought it with my own money)? Perhaps the cut in sales to the large RIAA represented companies is merely a by-product of consumers buying more music from indie labels and artists themselves? Perhaps more indie music is being purchased because the RIAA companies have not adjusted to what their target consumers want, but have merely whined about not selling more of the bland-uninteresting-because- it’s-the-same-as-the-last-fifity-albums -they-put-out-product that these companies are offering?

Huh? What about that?

The proposed settlement between Google and various book publishers (which still needs final approval from the Court) is slowly getting more and more clear. There are more than 300 pages in the agreement, so much of it is still lacking full analysis by parties unaffiliated with the lawsuit, but what has come out so far is not necessarily to the liking of all those who will be affected. Read one author’s angry but articulate response here.

Authors might find a useful tool here.

There’s a difference between access and copying. But the difference is not so intuitively obvious in the case of online archives. It is critical, however, in determining the possibility of copyright issues.

This article in the University of California, SD Guardian discussed in depth various issues related to an online repository for tests from college courses, made available to subsequent students in those courses. But the bottom line for me is the almost accidental technical difference between handing someone a copy of your old test and scanning that same test into your computer.

When a college professor gives you a written test and allows you to keep that copy, you own the copy - that is, the physical piece of paper - with that test on it. Barring a specific agreement otherwise, or a school ethics code prohibition, you are free to hand that test to your roomate, or to file it in a place accessible to other students. The latter is a common practice in fraternities and other campus student groups. You could even sell the piece of paper to someone else.

But when you post the same test on the internet, you have created another copy of the test, which is prohibited by copyright law unless you have permission or the copy constitutes “fair use.” Even holding the paper up in front of a video camera and posting the video probably creates a new and separate “copy” of the test.

Many professors are not that concerned with the copyright issue. They are aware and prepared for the need to have new questions on each test they give, and don’t otherwise assign value to their tests that would make them object to the postings. In those cases, you may have “understood” permission to post the test. But other professors clearly do object, as discussed in the article. So while online filing cabinets are convenient, the best route to sharing tests may still be the old fashioned walk down to the student commons to check the metal filing cabinets in person.

The quick recap:
* peer to peer file swapping is huge
* recording industry believes song swapping interferes with sales
* Song swapping really is a copyright infringment in many cases
* Recording Industry Association of America (RIAA) has sought to deter illegal file swapping by suing individuals (college students, mostly) for large damage claims, then settling for smaller amounts, typically $3000-$5000 per person.

Critics of the RIAA strategy say, well, they say many things, but the thing that is relevant to this particular post is that the statute under which the RIAA lawsuits are brought is unconstitutional. The short explanation is that the statute may create a criminal offense with a private enforcement mechanism. In other words, the “damages” that the RIAA seeks in these lawsuits are really a “fine” for copyright infringement, but instead of the usual criminal enforcement procedures - that include all the constitutional protections for the defendant - this statute allows enforcement in an ordinary civil lawsuit. The main problem with that is that the person being sued, who is in the position of “defendant,” is not innocent until probven guilty. In fact, nearly all of the lawsuits have settled for the simple reason that individuals will spend far less by settling for a few thousand dollars than they would spend to hire a lawyer to try and defend against the corporate law department of the RIAA, who would think nothing of spending far more on attorney fees than the amount of money they stand to win. They are in it for the deterrence effect.

Anyway, one of these lawsuits is about to be defended by an attorney with the argument that the underlying statute is unconstitutional. This is not an argument that the file sharing is protected or otherwise “okay.” It is merely an attack on the strategy being used by the RIAA. But to the extent that critics are right and the strategy is heay-handed, over-reaching, and unconstitutional, this is an important case.

You can read more from the AP here.

Remember the big dust-up over Google’s plans to digitize all books everywhere in the world and beam them into everyone’s head so all information throughout time would be universally available?

Okay, that wasn’t quite the plan, but close. Google began work several years ago on a project to digitize significant library collections. It raised concerns from many groups. Business Week had a good article on the issues when the project was first becoming known.

The battle has rage on since that time, with legal intervention, of course. Last week, Google announced an agreement had been reached to settle the matter, and it seems like a good outcome. Google’s website explains in some detail.

While I might not use quite as much hyperbole as Google does, this agreement does seem to reach a new level of cool in the internet world.

Can there be a Limited Edition of information products?

I thought about this after I came across a site that discusses nothing but limited edition foods. I didn’t realize this was the big business that it is. I’m certainly familiar with the Franklin Mint and all their limited edition products. And nobody who has kids these days is unaware of the long parade of Disney limited edition releases, but food was a new concept. There’s no collectible factor here (except the packaging, and everybody knows from watching Antiques Roadshow that the most value comes from having the product along with intact packaging). With food, there is a pure, fleeting experience and then memories. I guess you could take a picture of yourself eating the food, but the actual taste cannot be preserved (that I know of, anyway).

In the information age that we live in, it’s kind of refreshing to find an experience where preservation is not only not the goal, but is actually impossible. There is no digital storage of tastes (again, I add the disclaimer, “that I know of”).

And then I got to thinking, can there be a limited edition of copyrightable material? There can certainly be limited editions of the package that the information is put in - witness the Disney Classics Collection mentioned above - but what about the information itself? Kind of a philosophical question, I admit. Viewing a photograph can be a one-time experience, but what if the photo caused a shift in your perceptions? Written stories and articles can likewise change your view of the world, and are often disseminated further through the oral tradition.

I guess I’d like to think that information is not limited, even if it’s just to an edition.

If you pay any attention to digital technology and copyright issues, you know that there is and has been a huge issue regarding the posting of copyrighted material without permission on user sites - and YouTube has been the lightning rod for this issue because it’s, well, it’s YouTube. YouTube is huge beyond belief, it is incredibly user friendly, and everybody and their kids (mostly their kids) is using it now.

For some time now, Viacom and YouTube have been in a big lawsuit that Viacom filed against YouTube (and against Google, which owns YouTube). The simple description of the reason for the lawsuit is that Viacom thinks YouTube should be trying harder to prevent copyright infringement on it’s site, and YouTube is saying it doesn’t have to do more.

Before I give you the interesting recent development in this case, I need to give you a capsule review of what the overall fight surrounding websites that include material posted by users is about. First, it’s not just about YouTube, it’s about any site that includes content from users, including forums and bulletin boards. Here’s the whole issue in a nutshell: Copyrighted material should not be published without the consent of the owner. In the paper publishing world, it has generally been the responsibility of the publisher to make sure that ther eis permission for everything that is published. In the internet world, websites have typically claimed they merely provide a space but are not traditional publishers, and therefore it is the responsibility of the person posting the material to make sure that there is permission. Which means that discovering and fighting infringement becomes an after the fact job for the owner of the copyrighted material instead of a before the fact preventive job of the publisher. And that is the crux of the fight - does the publisher/website have to do the work, or does the copyright owner have to do the work?

In the Viacom/Google case, much of the evidence has to do with which party is in the better position to do the work of identifying potential copyright infringement. Google has said, basically, that it is not economically or technologically feasible for them to review everything posted. Viacom has said the same thing about its own position.

Now, with that background, here’s the newest development in the case. Viacom has been using a small company to collect information about material posted on YouTube in order to build its legal case. Google is now seeking access to the documents provided to Viacom in order to prove that Viacom can, in fact, collect the information it needs to pursue copyright infringements on YouTube. In other words, Google believes that by collecintg information on just how much of its stuff is impermissibly posted on YouTube, Viacom is proving Google’s case that Viacom is perfectly capable of doing the work itself.

Sounds a lot like two siblings squabbling over who has the most time to do their chores. You read more about this in The Wall Street Journal’s Market Watch.

Cheers to the University of Arizona, which has just created an office copyright education, staffed and housed in the University library. The University that says the role of the new office’s “exclusive role will be to educate students, faculty and staff about copyright law.”

Copyright issues are complicated and the digital reproduction capabilities that we now all possess have made the need for better education on copyright law urgent and unprecedented in the hostory of copyright. This is a step in the right direction.

Okay, maybe not quite recession proof, but conventional wisdom holds that entertainment fares better than many industry sectors during a recession. And of course, that is good news for the many individual copyright holders out there plugging away at their craft. But don’t think the entertainment industry will be completely unaffected by the recession, because it definitely will feel the need to scale back and pinch pennies as consumers seek the best bang for their limited bucks. And that leaves certain segments of the industry in a great spot to increase their business, among them DIYers and small indie publishers and music labels.

Because consumers now have a vast array of choices when it comes to their entertainment, they will have the luxury of looking for less expensive options. While everyone likes to point to the rise in movie ticket sales during the depression as hard evidence that people will spend money to “escape” from their troubles, you have to remember that movies were only in movie theaters back then. If Depression-era consumers could have chosen between a 50 cent movie ticket and a nickel video rental, which do you think they would have chosen?

Small entertainment producers have an opportunity to soak up some business from economy minded consumers because their costs are typically lower, the profit margin higher and therefore more room to promote attractive discounts to savings hungry buyers, and adjustments to marketing and sales can be made much more quickly than larger companies can manage.

Indie musicians, self-published authors, small businesses - this is your time to find the silver lining and shine. You’re in this business because you’re a creative person, so let’s get creative!

Tomorrow, October 22, marks the 70th anniversary of the very first xerographic image.

Copyrights are easier to control when the means to copy material is relatively difficult. The Xerox machine was a huge event in the history of copy making. But it wasn’t until digital reproduction arrived that the problem really started. Digitally reproduced in many cases are indistinguishable from the original, and this is the very first time in history that reproductions have been as good as the original. But even now, it is primarily audio material that is substantially threatened, because, despite the concerns over written material made available on the internet, what publishers and authors are just now discovering is that people will still buy books, even if they can read the text on their computer. Bloggers put out books that sell, even though all the material is available on their blog. Publishers have made entire books available for free download, and still sold as many traditional books as exepcted.

Even in the case of music, many people still buy CD’s for the packaging. But that does not seem to be the case for younger listeners, which means that music is at risk of losing sales in the digital age.