Copyright Talk

Every beginning writer, musician, and photographer is fascinated by the seemingly “mysterious” process of getting their copyright registrations. John Harrington, on his Photo Business News & Forum blog undertook an interesting project. He walked through the steps taken by the copyright office in processing copyright applications - and he took his camera. Not surprising, I guess, since he’s a photographer. So here’s a great series of posts for all you visual learners out there. Each step, and its corresponding photo, is in a separate post, but they are all listed in order at the bottom of each entry. Check it out for a little fun.

A Walk Through the Copyright Office

This may be an unjustified stereotype, but I don’t think so. Musicians, on the whole, are not good with paperwork. Not good with administrative activities. Not good with record keeping. Which is really ironic because recording and selling music is one of the more detail/paperwork/administratively cumbersome business activities we have in this country. I’m convinced that the rallying cry “music just wants to be free” is not about copyright or left or record companies or internet companies or anything else like that - it’s simply a cry to be freed from the oppressive burden of paperwork associated with selling music.

I bring this up because of this story about a former member of the Ramones who is suing for royalties from digital sales of songs to which he owned the rights. I’m guessing that the fact he was left out of the money was less about intent to cut him out and more about simply forgetting he had anything to do with it that would require his participation and consent. The Ramones released over 20 albums, each with 12 or more songs on it - that’s a lot of detail to keep up with.

PDA’s, anyone?

A new ruling from New York in one of the RIAA cases is good news for the targets of it’s litigation strategy in deterring illegal file-sharing (for which there appears to be no evidence of effectiveness in the several year long campaign). As spotted and reported here, the judge in Atlantic v. Andersen has ruled that the RIAA must pay attorney fess incurred by the defendant after a two year long discovery process failed to yield any material evidence of infringement.

I believe that copyright infringement suits are valid and justifiable ways to protect the rights of copyright holders. But the RIAA has engaged in a campaign of infringement lawsuits that are often merely a tool to engage in a fishing expedition for evidence of wrongdoing. Because those sued usually bear a significant financial burden in defending themselves, the lawsuits, while technically not the least bit unfair, usually are unfair in reality. The reality of our civil justice system is that most lawsuits are between parties of roughly equal financial means. Big companies sue other big companies, husbands sue wives, etc. And since strategy decisions by an attorney about how much discovery to do and how many motions to file are usually based on the financial means of the client, when the clients have roughly equal financial means, the system - while expensive - is not unfair by virtue of being lopsided. But occasionally, a mismatch will occur, and the public always perceives those matchups as unfair, usually with the phrase “bullying tactics” attached. And in truth, they are unfair, even though it is because of a systemic problem and is not really the fault of the party bringing the lawsuit. And that is the case with the RIAA suits. The attorney fee ruling is the judge’s way of saying to the RIAA that they better not take advantage of the systemic imbalance to bully their targets into submission.

That’s all I’m saying.

Open source software is a type that is distributed freely, with code available, and explicitly invites others to copy and reproduce and modify and improve upon the code. It is distributed under a GNU license, which simply spells out the rules about using the code but making your new code also available. It is the computer folks’ counterpart to the Creative Commons licenses.

So here’s what happened: a company called Monsoon Multimedia used an opensource program to create a new product. But they didn’t publish the source code, as required by the GNU license under which they acquired the original code. They were asked to publish it, but never did.

So what now? Free software, so everyone owns it and can do whatever they want with it, right?

Wrong.

The software has not been dedicated to the public domain. It retains it’s copyright. But the software has been licensed to other users under specific guidelines, which Monsoon failed to follow. Which means that Monsoon infringed the copyright on the software. In other words, it did something it had not been given the right to do.

So Monsoon has now been named in a copyright infringement lawsuit.

Copyright law being used to keep opensource software open and available. There you go.

Sampling is a relatively (20 years or so) new form of musical creation that, unlike web radio and youtube, caused only a tiny ripple in the copyright debated, although it did require some analysis and sorting out. I came across this video posted on YouTube which does a remarkable job of explaining sampling, and then goes on briefly to critique the current state of the law, which requires licensing of all samples, regardless of length or recognizability. It’s worth a watch oif you’re not exactly sure what or how sampling is used.

Although sampling is used in many different ways, there are works out there that are created entirely from other people’s works, in much the same way the collages we all made in elementary school were made from other people’s pictures.

Came across two great blog posts today that I’m passing on to you. The first is a discussion of the difference - and sameness - of plagiarism and copyright violation. The post was prompted by a story of an attorney who was sanctioned for plagiarising a brief filed with the bankruptcy court in Iowa. Blogger Brett Trout goes on to give an excellent discussion of plagiarism in general. Here it is.

The second post is from a blog about stupid businesses. And here he found a good. In a happy accident with a “Wiggles” DVD, “That’s Pretty Dumb” discovered that it is impossible to actually read the full copyright notice posted at the beginning of the DVD. If that’s true, would that make a good defense to an allegation of violating the copyright? It’s a more interesting question than you might think. The DVD would be covered by copyright even if there were no notice at all on it. BUt if the owner does post the notice, and then adds a great deal of written material to the notice (which there is no question that they can do), but then makes it impossible for the consumer to discover what that material is, does it change the relationship? Is it the equivalent of a used car salesman pushing a sales contract under your nose and insisting you sign it without reading first, an action that in many cases voids the terms of the contract? Or does it mean nothing, since the copyright exists independently of any written notice on the DVD?

Hmmmm…….
It’s clearly a bad buisiness practice.

A report on the economic effects of fair use on the US economy was released to Congress last week. The report, prepared by the Computer and Communications Industry Association, found that industries that depend on the existence of fair use contributed 4.5 trillion dollars to the economy. The summary and full report can be found here.

I don’t know much about this association. It is highly supportive of the software open source movement, though, so it may be a far leaning counterpart to the Disney approach of copyright everything with no exceptions ever until the end of time. Still, the report itself appears to have been done with an accepted and reliable methodology, so it is at least a useful voice in the copyright debate.

This post is about big companies. Big companies exist for the purpose of making money. They do some other things along the way, but legally their mandate is to make money for their owners. That’s the way the system is set up. So big companies are continually looking for ways to make more money. They can do this basically four ways:
1. add new products
2. increase sales of old products
3. reduce the cost of making their products (without dropping the sales price)
4. raise prices

In the last three decades, the US economy has become vastly more involved with intellectual property products - what is often referred to as a knowledge based economy. Consequently, copyright law has come into sharp focus for big companies looking to increase the money they make. Companies that use knowledge as their raw material are looking at ways to reduce the cost of that raw material, just as manufacturing companies are constantly looking at ways to reduce the cost of their raw materials. Costs can be driven down by reducing labor costs (mechanizing, eliminating labor unions), ands by reducing other costs (fewer environmental regulations, for example). Some cost reductions can be dealt with by direct negotiation, others require legal and policy changes.

Some big companies that use or produce knowledge products are and have been looking for ways to reduce the cost of their raw materials, and one front has been the assault on copyright. Companies that depend on the use of works owned by others (Google, internet radio, cell phone companies, etc) have been busy working to convince the public and congress that copyright regulations are onerous, unecessary and harmful to the public and the US economy. On the other side, big companies that own knowledge products have been busy trying the convince the public and congress that copyright laws are poorly enforced, terms are too short, and that fair use is being abused.

That’s the fight. And while access to knowledge and creative works is good for humanity, the fight is not being waged on that basis. It’s being waged by the people with the money to wage the battle, and the reason they are waging the battle is because their reason for existence is to find ways to make more money.

I hope Congress has the sense to be sure and explore the third side of the debate before making policy decisions.

I’ve written numerous times about the Creative Commons license, and how it is not an alternative to copyright, and how copyright is not evil and Creative Commons is not a hero, and in general how confused the average creative person is about copyrights and creative commons licenses.

I’ve releatedly said that Creative Commons is merely a pre-written partial license to use material, but is NOT something actually different than copyrght. Here is an example of this - the satire and humor website Satirium grants a blanket license for certain uses of material on its website. It holds the copyright, but wishes to allow certain uses without requiring the user to seek and obtain permission individually. So it wrote it’s copyright notice to explain what rights it grants in advance, and what rights it retains. This is exactly what copyright law has always allowed copyright holders to do, and exactly what the Creative Commons license does - except that the Creative Commons licenses are standardized and written by someone else, and the use of them without reading and understanding them is as bad as signing a contract without reading it first to see what you are agreeing to.

Here are a couple of links to humorous takes on copyright and the issues swirling about us.

http://www.netfunny.com/rhf/jokes/90q3/pen.html

And this marvelous item from the official US Copyright Office FAQ sheet on “what is protected by copyright?”:
How do I protect my sighting of Elvis?
Copyright law does not protect sightings. However, copyright law will protect your photo (or other depiction) of your sighting of Elvis. Just send it to us with a Form VA application and the filing fee. No one can lawfully use your photo of your sighting, although someone else may file his own photo of his sighting. Copyright law protects the original photograph, not the subject of the photograph.

Ars Technica is reporting an interesting development in one of the RIAA file sharing cases that may have ramifications for the future of their strategy of filing hundreds of small lawsuits against individuals alleged to have engaged in illegal music downloading.

The RIAA has for several years now been filing suits against individuals, mostly college students, but identifying IP addresses of alleged illegal downloads, seeking out the owner of the computer at that IP address, and offering settlement terms of usually a few thousand dollars. If the individual fails to take the settlement offer, the RIAA files a lawsuit.

Once a lawsuit is filed, the defendant must file a response with the court. If no response is filed within a specified time, the RIAA has the right to ask for a default judgment, that is, they can get the court say that they “won” and that the defendant owes them the requested money. That’s standard procedure in all types of court cases when a defendant fails to do anything.

In a case in California, however, after the defendant failed to make a response or to contact the court in any way, the court denied the RIAA’s request for a default judgement, saying that the lawsuit they filed did not, on it’s face, give any indication that there was any evidence to show that the defendant might have actually violated copyright law.

The RIAA does have the opportunity to refile the suit and make allegations specific to this particular defendant, so she is not off the hook yet. But this is a significant development because it may mean that the RIAA will have to file these lawsuits with much more attention to each individual situation, rather than the mere boilerplate allegations they have been using. The reason this is significant is because even though the RIAA might actually be able to meet the specificity requirements, it will be much more labor intensive, and therefore more expensive, for them to do so. In cases where they are only asking an average of $3000 in damages to begin with, their strategy may no longer be cost effective, especially when you add in studies that show file sharing and illegal downloading does not seem to be abating at all.

An editorial by Patrick Ross, the executive director of the Copyright Alliance criticizes the complaint recently filed with the FCC (see post here ) that alleges the standard copyright warning placed on movies and broadcasts is misleading because it does include information on fair use. In the editorial, Ross likens the claim of the complainants to an argument that fair use is a consumer right, as opposed to a defense. What does that mean, exactly? His point is that fair use is not a clearly defined concept, a specific right or set of rights that the public has been given. Rather, fair use is a set of guidelines that depend on the particular circumstances of the situation, a right asserted only after a copyright owner has alleged infringement. Read the full editorial.

Here’s an excellent example of that right versus defense concept at work: This past weekend Boston College opened an exhibition of newly discovered paintings that may or not be the authentic work of Jackson Pollock. The College wanted to put pictures of clearly authentic Pollock paintings side by side with the exhibited works in it’s catalogue for the exhibition. The College sought and was denied permission to publish those images. However, when the catalogue was released this weekend, it did in fact contain some of the images for which they permission to publish had been denied.

So why would the College publish these images after being told not to by the copyright holder? The reason is that the College, after consulting with their attorneys and other copyright specialists, believes that it’s use of the images is protected by the fair use doctrine. The Pollock people clearly do not believe this, and are likely to file legal action for infringement. Boston College will then be able to defend it’s action by saying that it believes fair use protects it from liability for infringement. Read more on this here.

The important thing to notice here is that Boston College’s assertion of fair use does NOT keep it from having to go to court. It does give Boston College a good defense to the claim of infringement. The actual outcome, though, is uncertain until a judge rules.

Consumer rights are much more clear than this mess.

A little brouhaha is kicking up in Congress. Here’s the background:
The National Institute of Health funds research into scientific and medical issues. The scientists then, typically, submit their research papers to peer-reviewed journals for publication. The peer-review process is designed to check the integrity and reliability of the research findings. If the paper passes the peer review, it is published and available to the public.

At least in theory. In reality, accessing research journals can be difficult for non-academics, and can be nearly impossible for anyone not located in cities with major research Universities. Because of this, a push began about ten years ago to create an online repository of reviewed and published articles that were the result of research funded by NIH.

The two primary concerns that needed to be considered were the need for the journals to have an economic incentive to continue to fund the peer review and publication, and the need to continue to have a working peer review system for major research projects.

After a long period of study and conversation with various affected parties, the NIH created an electronic repository and asked researchers to voluntarily deposit their papers after a specified time had passed from the original publication of the paper.

Only a very small percentage of papers were actually deposited, however, and it turned out that one of the reasons for the low rate was confusion and uncertainty on the part of the researchers over whether their copyright agreements with the journal publishers would actually allow them to do so.

The difference is mostly in how and when they get paid. In the recording world, well-known singers get well paid. Songwriters, though, can be virtually unknown to the general public and still get paid a lot of money. Here’s why: songwriters are paid royalties everytime their song is recorded (or downloaded) or played in public. Being played in public means in concert, in stores, on TV, in movie theaters, or in an elevator. Singers, on the other hand, are paid either at the time they make the recording or based on how many copies of the recording are sold, depending on the deal they made with the recording company, and they are paid whenever the song they sang is played on an internet radio station. They may also get a royalty when the song is used in movies, tv, cable shows, etc, depending again on the deal they made with the recording company.

The above is somewhat of a simplification, but the point is that it is possible to perform on a hit record and make less money than the songwriter - a concept that surprises a lot of people since the singer is front and center.