Copyright Talk

This is just too funny not to point out. it doesn’t really hold any legal significance, but it sure says a lot about something - take your pick as to what. Here ya go.

I’ve written about fair use before, the copyright doctrine that allows some uses of copyrighted material without having to get prior permission of the copyright holder. It’s not always immediately obvious whether a particular use falls under the doctrine or not, but it is clear, based on a long history of court decisions, that the doctrine is alive, well, and useful.

And it’s existence is being more effectively communicated to the big powerhouse media corporations by ordinary people, as discussed in this story in the Sacramento Bee. Which is good news, because in their zeal to protect their property, many companies are overreaching on the rights that they actually possess (read also about the fascinating attempt by cell phone companies to use copyright to protect their customer base).

I went to a seminar last night led by a couple of prominent entertainment lawyers. The subject of the talk was how to make money with your music, and it was aimed at songwriters, who all own copyrights. Most of the audience seemed to be made up of musicians who were working to some extent, but not yet making enough money to support themselves exclusively from their music activities.

So it was with chagrin, although not surprise, that I heard the following question come up during the Q&A section: “What do you think about the Creative Commons license?”

Creative Commons is an organization that developed some standardized templates for copyright owners to use if they want to grant a blanket license for the use of their work without requiring individual permission to be obtained every time someone wants to use the work. As such, the CC licenses are a useful thing and I am supportive of their project.

However, Creative Commons has tended to pitch itself, and is certainly perceived by many, as an alternative to copyright, when in fact it is no such thing. It is merely an exercise of the rights that a copyright owner has. The people that sing the Creative Commons song tend to have a very mistaken belief that copyright laws somehow impede their ability to be successful with their work. Wrong, wrong, wrong.

A copyright owner can grant any permission they want for the use of their work. But they can’t grant permission to use rights they don’t own. So for example, an independent songwriter wants their song to become a big viral hit on YouTube. Even though the songwriter could grant permission for anyone to make their own video and upload it, the songwriter mistakenly believes that no one can do that because copyright prevents it (copyright prevents unauthorized use). So they turn to Creative Commons. BUT, what if songwriter doesn’t own the copyright in the recording itself (the master rights)? Songwriter can’t grant permission to use the recording, either with or without Creative Commons. They can only grant the right to use the song, either in printed form or as a re-recording.

Suppose the song is noticed by a company that wants to use it in a commercial. Big money is possible. Does the songwriter want to give it away for free now? No, they want the protection of copyright which not only allows them to ask money for the use of the song, but also allows them to say no to the company if the songwriter doesn’t want their song associated with, say, a stool softener.

But suppose the songwriter does say okay to the company. Now the company wants to make sure that they actually have the right to play the song. They will want not only the permission of the songwriter, but they will also want to make sure the songwriter owns the right to give permission for the recording. The involvement of any type of label, publisher, partner, other musicians, and no written agreements as the nature of any of the relationships, and no way to contact some of the folks, could leave the company with a concern about whether it is clear that the songwriter has permission to grant the use. If they company is uncertain, they may choose to use a different song instead. The failure of the deal is not the fault of copyright, its the fault of the songwriter for not having proper paperwork and a paper trail.

Which all leads me to the point here - in the music world especially, copyright is complicated and difficult to understand. I think the Creative Commons hoopla is largely the product of a desperate need to simplify a system that is very difficult to comprehend. But simplification is not necessarily better. Read, learn, talk to people, and above all, get advice from someone who should know before you record or license anything.

Copyrights can be registered under fake names. AKA psuedonyms or fictitious names. Writers with pen names or musicians with stage names sometimes want to use the name identified with the copyrighted work as the registration name, which is perfectly legal and contemplated on the registration forms.

However, if a fictitious name is being used, it must be identified as one on the registration form. But although you have to say if you are using a fictitious name to register, you do not necessarily have to also give your real name. But here’s the tricky part - if you are using a fictitious name, and choose not to reveal your real name in the copyright records, then you should be sure that you either never wish to license the work, or that you have good legal evidence of some kind to prove that you are the actual owner. In other words, if you register a copyrighted work with only a fictitious name, and later try to license that work for publication or recording, the company or person will want to be sure that you have the right to license the work, which means you will have to be able to show some evidence that you are the same as the fictitious name it is registered under.

SoundExchange reached an agreement yesterday in a compromise on the royalty rates imposed on web radio stations. The agreement places a cap on total payments by webcasters, and the two sides have agreed to approach the Copyright Royalty Board and request that the terms of the agreement be adopted by that Board, which would make the agreement apply industry-wide.

One part of the agreement stands to have a positive impact on artists and small indie labels. The webcasters have agreed to provide full, track-by-track listings of all material played. Currently, they are only required to provide a sampling of playlists, from which SoundExchange determines royalty rates paid to artists based on a statistical formula. Smaller market artists have long been concerned that they may be short-changed by this method.

The change in reporting may have an impacty on royalty payments, that remains to be seen, but the full lisitings can definitely benefit the artists with less airplay because it will make it possible for them to track airplay much more accurately, and thus plan their marketing and touring much more effectively.

Story in LA Times
SoundExchange Press Release

A Cornell University student who received a letter from the RIAA and went on to accept their $3000 settlement offer in lieu of further action offered this comment:

“I think this country has gotten completely out of control with personal property rights,” she said. “Music, art and literature should be about sharing an experience with as many people as possible. I think that real artists and inventors should be content to know that their music is so widely appreciated and admired. It has also been shown that music downloading and sampling has helped the music industry because people are able to test and try music before buying it. Music sharing is hardly a serious crime.”
(quoted in the Cornell Daily Sun)

In that statement I think I finally see the crux of the political dispute over file sharing. To this student – and apparently to thousands of others – the computer and the internet are social communication tools. To these people, sharing files over the internet is conceptually the same thing as a group of friends sitting around a dorm room playing cd’s for each other. Imagine the degree of offense that you would feel if the government or a record company tried to control how many people you could have in your living room when you played your records? The outrage would be enormous, and the level of non-compliance would be just as enormous.

That’s the same reaction that many people, particularly younger people, have to the limitations on music file sharing. I don’t know, maybe computer file sharing really is the new living room.

An interesting legal battle is shaping up over this lawsuit for copyright infringment. The question prompts a really fun debate, but I wonder why copyright is being implicated at all - why not go after the guy for ordinary fraud and conspiracy type claims?

The issue is this: a company called coupons.com provides online, printable store coupons. The technology providing them is supposed to limit the number of coupons that can be downloaded. A fellow in California figured out that erasing some of the files in the software that ennables the downloading would allow the user to print unlimited numbers of the coupons - and potentially many more than the store intended to privide. Coupons.com calls this copyright infringement. The man says he didn’t copy or alter anything, he merely erased free-standing files from his own computer.

Unless the EFF or some other rights group steps up to help the legal defense, this case is likely to settle long before a court has a chance to issue an opinion on this question.

You can’t copyright a name. You can’t copyright a title.

But you might be able to trademark them.

An interesting little article the other day in the Financial Times touches on the lucrative estates of some well-known authors, like Ian Fleming and Kingsley Amis. Copyright in the books ends at some point, of course, but the estates have found a way to extend their “business” by trademarking aspects of the works.

Writing franchises are not new (Nancy Drew was created with the intent of using multiple authors, and L. Frank Baum’s world of Oz lived on under the pen of several different authors after LFB’s death), but this business form is increasingly being run by estates. I find the concept of a business owned by no living person to be one of those conceptually slippery concepts like “how big is the universe?” or “where were we before we were born?” But it’s perfectly legit and fairly common, although having an estate run a business until it can be properly transferred to the heirs is entirely different than having an estate actively hanging on to the business for the purpose of enhancing - or creating - it is a little different.

But I digress. Copyright protects the actual expression of a creative work. A book is protected by copyright. Trademark protects the association of specific “marks” with a specific product. Names, titles, slogans, even colors can be part of a “mark” that is used to identify a specific product. Trademarks that are registered cannot be used by someone else IF, and only if, that use would be confusing to a consumer. In other words, a registered trademark CAN be used, without permission, by someone else, if that use does not harm the business of the company or person that holds the trademark registration. This is why searching for “AAA Plumbing” on google will result in dozens of companies with that name all over the company. Those companies don’t compete for the same business, as most plumbing companies have a limited geographic service area. But if you search in Houston, Texas for AAA Plumbing you will find only one compnay with that name.

Literary estates are using copyright to try and maintain some control, and income of course, over the works of the deceased after the works themselves have passed into the public domain. I think this is far more dangerous to the public good than any piracy issue we’re currently grappling with. On the other hand, if it’s limited to mostly mystery series and spy thrillers, who really cares?

One of my mother’s pet peeves (and consequently one of my own pet peeves about my mother) is the interchangeable use of the words “can” and “may.” “Can” refers to the physical or emotional or mental ability to do something, and “may” refers to the permission or authority to do something. Although my daughter can drive a car att he eage of 15, she may not do drive it anywhere on a street by herself.

Can and may are constantly confused in the world of copyright. We have the ability - the can - to make and distribute copies of almost everything. But we may not do so when we do not have permission from the copyright holder, or if our use is not a “fair” one.

Even big, reputable companies can make mistakes on this. I wonder if the RIAA distributes news and magazine articles to it’s staff? Hmmmmm……….

Lawsuits and complaints against YouTube have been grabbing headlines. So many ordinary people post videos to YouTube that it’s future is being followed with great interest. But the future of search engines may also be at stake, and changes to search engines could have a far greater impact on the way we use the web than any changes to YouTube will have. It’s the difference between losing some rides at an amusement park versus losing half the roads to get to the amusement park.

The legal issue hanging over search engines is their ability to give us a view of the material. The issue is encapsulated in a series of lawsuits being quietly brought by the company Perfect 10 against the major search engines. The claim of perfect 10, which publishes photographs (nude ones, but that’s not the point), is that image search results allow users access to the photos, sometimes from websites which have illegally obtained the photos, and therefore eliminates the need to purchase access from Perfect 10 - which is how the company makes its money. In fact, the company has shut down its magazine operation, allegedly because of the amount of money lost due to the search engine image service. If the economic claim and resulting damage can be proven, a court may very well see the need to curb the use of images in search engine results.

Similar legal claims have been made involving the text excerpts that search engines include in their results.

So far, legal results have been mixed and there is no clear rule on the reproduction of material from web sites by the search engines. But if the courts were to eventually find that publishing excerpts and images from sites is infringment, the way we surf the web could be drastically affected.

Thanks to a little article in Information Week, I have discovered the Pirate Party. There’s no ale or wenches that I’m aware of, but they do apparently want to turn “pirates” into legitimate, productive citizens. Not by changing any behavior, but by moving the line in the sand that separates “pirates” from the rest of us.

The constituency of this Party is the “Internet Community,” with a platform supporting changes to copyright, patent, and other laws that the Party feels have shifted away from the encouragment of scienctific innovation and artistic creativity and have in fact begun to stifle it.

I read their position statement on copyright, and I see quite a bit of merit in their viewpoint. It’s worth a considered discussion, in particular the terms of protection for intellectual property. England very recently debated extending it’s term of copyright in musical compostions from 50 years to 95 - and chose not to extend it. This makes English music copyright protection considerably shorter than the US protection of life of the author plus 70 years (for works copyrighted since 2000). There is clearly room for minds to disagree on this issue.

But as I continued reading, I came to this passage: “We believe that a user has the right to distribute works given that he/she follow the author’s restrictions on allowed obfuscation of the essence and encumbrance of the format. The author’s only restrictions on this type of redistribution should be on how obfuscated the essence or how encumbered the format is. The author should not disallow clarified essence or freed up formats. We believe this would foster the progress of science and the useful arts.”

Huh? I have no idea what they’re talking about. Maybe it’s because it’s early in the morning and my mind is still asleep, but I’m lost here.

However, I do think their larger point, that the internet has changed the way people communicate and publish information, does deserve debate on how that impacts our laws, if only because so many people think that should change things.

The policy behind copyright is the encouragement of creative work, and no one can say these four Oklahoma prison inmates aren’t creative. In a wildly imaginative scheme to get out of jail, four inmates copyrighted their names - yes, their names - and then warned prison officials in writing that they must have permission to use the names - permission which the inmates conveniently denied. After the prison continued to use their names on official documents, the inmates demanded money from the warden for copyright infringement, then seized his personal property in alleged satisfaction of the claims, but offered to return the property in exchange for their freedom instead of money.

Turns out you can’t copyright a name, and the person they hired to seize the warden’s assets was an undercover FBI agent. So now they’re facing new charges that will probably keep them in jail even longer.

But they’re not giving up so easily. When in Court to face his new indictments, one of the inmates prompted this delightful little exchange with the judge:
“When Magistrate Judge Bana Roberts asked Bischoff to identify himself, he responded, “That is my private property, ma’am.”

Bischoff denied he was the man named in the indictment, but said he held a title to that name.

“Nothing you said makes any sense,” Roberts told him. ”

KOTV in Tulsa has the story here and here.

Sound Exchange, the company annointed by Congress to collect and distribute artist royalties on digital performances (like internet radio stations), has been criticized by some for it’s role in the recent heated debate over internet radio royalties, as well as for other administrative issues in the years since it’s creation. It seems the fire is getting hotter, with new questions arising about whether it is authorized to engage in lobbying activities at all. Increasingly detailed questions about finances and activities are being asked of SOundExchange by increasingly more high profile players. No congressional interest yet, but it may be coming. I’m guessing that’s a long way off, though, as the long arm copyright agenda fueled by big internet and media companies is well funded and seemingly well connected.

Check out some interesting discussion on p2pnet.net.

A while ago I wrote about AT&T’s plan to use filtering softeware to police their subscribers for illegal downloads of copyrighted material. Serious concerns have been raised about the technical efficacy of this technology, but I think that will be resolved pretty definitively at some point - either it will work or it won’t. The greater concern is the questions surrounding the policy itself, that is, the “peeking” at individual communications just on the chance that something illegal is going on. And more importantly, why should AT&T care about this particular illegal activity when the benefits all flow to commercial entities and the costs are all borne by the AT&T subscribers. In short, why am I, an mere internet customer, paying higher fees to support a technology that benefits an unrealted company? How can the stockholders of AT&T support this action? Other than the possible circumvention of exploratory lawsuits by the media companies against AT&T, I can’t off hand think of any benefit AT&T stockholders get out of this.

As for the policy, if AT&T is going to spend any money at all trying to prevent criminal activity, why didn’t they pick something more compelling, like drug trafficking or terrorism? If they will be peeking into customer communications, they could peek at words and groups of words identified as possibly associated with certain criminal activities, and then simply block communications that use those words. Why not be on the look out for murder for hire schemes, for con games, and teenage vandalism sprees?

Wikipedia, the great collaborative encyclopedia project, is a great example of how copyrights work. Wikipedia, of course, allows anyone and everyone to write and modify articles on pretty much all topics in existence. So here’s how the copyright chain works on Wikipedia:

Article written. Author automatically owns the copyright to that article, under our US copyright law.
Author wants to post the article on Wikipedia. Wikipedia asks the author to “license” the use of the article to them.
In the license, the author agrees that Wikipedia can post the article. The author also agrees that Wikipedia can let other people use the article, copy it, or modify it.
Wikipedia has a license to use all the material posted on it’s website, and under that license Wikipedia allows other people to copy and use their articles anywhere else – as long as they 1) include a statement saying the article came from Wikipedia, and 2) they allow other people the right to copy, change, and otherwise use the articles the same way Wikipedia does.
The original author of the article still owns the copyright, and is free to use the article in other ways, too.

The written license Wikipedia uses for it’s articles was developed for the written manuals accompanying opensource software. It’s called the GNU Free Documentation License, and you can read a copy of it here. It’s long, but written in mostly pretty plain language.

The agreement between the article authors and Wikipedia is here, and it explains that one of the things the author is agreeing to is that Wikipedia can license the article to others under the GNU license.

The point I am making here is that the authors of the articles can choose to make their work freely available, or they can choose not to do so. In contexts other than WIkipedia, they could also choose to allow some uses and not others, in any variation and configuration they choose. This is true for all types of copyrighted works, not just written material. So let’s consider music for a moment, about which there is so much contention right now. Musicians that choose to make their music freely available can do so - but not if they have already licensed the right to make that decision to a publisher or record company. Then, only the publisher or record company can make that decision. A musician that wants to retain the right to make that decision can do so. And a musician that does not want to make their music freely available does not have to do so, at least until the term of the copyright runs out. The copyright owners have full freedom of choice in what they do with their works.