Copyright Talk

A website that archives old web pages, The Wayback Machine, figured heavily in a bizarre lawsuit from Massachusetts recently. Here’s the story:
Lawfirm is hired to represent a client. As part of their representation, they research the opposing party by accessing pages on the company website, and by searching through older versions of the website via the Wayback machine. Lawfirm prints copies of the relevant web pages for use in court.

The opposing party, whose webpages have been viewed and copied by the law firm, now files a separate lawsuit against the law firm for copyright infringment and violations of the Digital Millenium Copyright Act (DMCA). Their argument is that their copyright in the webpages was infringed when the lawfirm printed copies to use in court. The DMCA was violated, they alleged, because they had attempted to block the Wayback Machine from making archived copies of their website accessible by way of a piece of code inserted in their site - an attempt to block which failed because of a malfunction on the part of the Wayback Machine, about which the law firm had no knowledge.

The lawfirm won on both counts, which is a good thing. Frankly, though, the frequent inherent injustice in the “justice system” was on full display in this case, becasue the law firm - which was just doing it’s job in a very reasonable way - spent two years and $170,000 defending itself. So far. The decision has been appealed.

The opinion in the case can be seen in its entirety here. Thanks to the MassLaw Blog for bringing this stupid case to light.

Got a few hundred bucks to spare? Check this out.

Web-based and satellite radio stations are treated differently than traditional am and fm radio with regard to royalty payments for playing music. The difference is due pretty much only to technical differences in how the radio transmits it’s programming to listeners, and not to any real fundamental difference in the businesses themselves.

Because of this, there have been calls to treat internet radio the same as broadcast radio, and also calls to do the opposite, which would mean adding new royalty payments to the broadcast stations’ obligations.

In opposition to those calls, a group of Congressman introduced a resolution a couple of weeks ago calling for support to continue the performance royalty exception enjoyed by broadcast radio. The resolution notes that this exception serves the public purpose in a number of ways, including that “local radio stations provide free publicity and promotion to the recording industry and performers of music in the form of radio air play, interviews with performers, introduction of new performers, concert promotions, and publicity that promotes the sale of music, concert tickets, ring tones, music videos and associated merchandise.” You can read the full text of the resolution here.

But the truth is that the number of music related businesses benefitting from the free publicity is small. If Congress wants to support this service for music businesses and performers, then they should introduce regulations that would require broadcast stations to include a certain amount of programming provided by independent record labels, by regional musicians, and etc. If it serves a public purpose, then Congress should define that public purpose to include more than a handful of record labels that have the funds and the muscle to marginalize any competition for airplay by smaller labels. Just as the FCC requires a certain amount of public service programming, Congress could require a broader range of musical programming.

If radio wants a break on the cost of doing business, then it can certainly follow a few rules for the public good.

Author Cory Doctorow echoes comments I’ve previously made about the difficulty of applying traditional copyright practices to high volume internet based publishing models, and the need to weigh the benefits of fast, highly accessible information publishing against the benefits of good copyright practices. But Doctorow goes farther and seems to conclude that a complete overhaul is the best way to go, that fast, unfettered publishing far outweighs any good derived from carefully protecting the rights of creators.

I’m not so sure. I certainly don’t want to screen out opinions and radical views, but I belive there is great benefit in a system that injects a time for reflection and review into content before it is willy-nilly sent out with no hope of ever being retrieved. I wouldn’t want to go through all emails, I don’t want to have to wade through more rather than less stuff to find things worth reading.

There may soon be another thing that people can create that is protected by copyright - fashion. A bill pending in Congress would add fashion design to the list of copyrightable items. The proposed bill currently defines fashion like this:

. . .
`(7) A `fashion design’ is the appearance as a whole of an article of apparel, including its ornamentation.

. . .

`(9) The term `apparel’ means–

`(A) an article of men’s, women’s, or children’s clothing, including undergarments, outerwear, gloves, footwear, and headgear;

`(B) handbags, purses, and tote bags;

`(C) belts; and

`(D) eyeglass frames.’.

Passage of this bill is by no means a slam dunk, but there is considerable support for it’s passage. So now my wonderment is whether photographing celebrities on the red carpet will be considered news photography, or whether releases from the fashion designers will be required before the pictures can be published? Okay, so maybe red carpet photos fall into the news category, but what about the pure paparazzi shots of celebs on the street and in the local eatery? If the shots are for entertainment and commercial purposes only (do people really read the tabloids for news?), then maybe celebs will have a whole new strategy for cutting back on the frenzy of paparrazi.

Here’s the scenario: Suppose a celeb sticks to wearing copyrighted, designer duds everytime they leave the house. Now, since the celeb doesn’t own the copyright on the clothing, they can’t assert an infringement claim for unauthorized photos. However, the celeb could strike a deal with a designer or two, where the designer agrees to go after unauthorized photographs of the celeb in their copyrighted clothes, in exchange for the celeb agreeing to wear the designer’s creations at red carpet events. Photos like the one in this post might become a thing of the past.

Hmmm. . . . .

Computers have made us love reports. Data is actually fun these days, and the dark ages image of pages and pages of black and white numerical lists in tiny tiny fonts is long gone. So the next big thing in marvelously useful webbased applications is likely to be something called Attributor. TechCrunch.com has a nice summary of its features.

The basic idea is a service that you can ask to track your content for usages all across the internet, kind of a spy/detective type of thing. But it doesn’t just find them so that you can look and see what’s going on. It actually analyzes the ways in which your content is being used - you get reports on the amount being used, whether or not it is attributed to you, whether or not there is a link to your original source, and mostly importantly and refreshingly new, it will tell you whether your content is being used on ad supported sites or not.

The idea behind all this is to let people track potential copyright infringements in an intelligent way, so that they can concentrate on infringements that are actually or potentially harmful. But it could also be used by musicians and other independent creators who want to track the dissemination of their freely supplied content.

Although the service is exciting, I called it the next big thing because it’s not fully functional yet. Text is currently the only type of content that can be tracked, although the company is working on methods to track other content. If the technology is up to the task, I believe Attributor will be as big a deal as myspace, facebook, youtube, and even google.

link of the day - a reminder that the internet is not the only place to browse: http://www.thebookstacks.com/welcome-to-the-library/