Copyright Talk

The tech and legal headlines today read like an exercise in perspective for a writing class: “TorentSpy Loses Case” “MPAA Wins Case” “TorrentSpy loses Lawsuit” “MPAA gets Win”

There seems to be pretty much an equal division of how the ruling is described.

That may be more to do with what the ruling is actually about rather than the biases of the reporting articles.

Brief recap: MPAA sued TorrentSpy for copyright infringement, alleging that they basically aided and abetted and the pirating of movies. The most interesting issue in the case was likely to be whether a search engine, through which users could locate pirated copyrighted material, was responsible for copyright infringement even if the search engine did not host the materials.

However, in an uncommon move, the court has ruled that the lawsuit is over and that the MPAA wins. But the win has nothing to do with the copyright issues, and the trial never started. The problem here was the conduct of TorrentSpy during the pre-trial discovery phase of the lawsuit. During discovery, each side of a lawsuit is required by law to preserve potentially relevant material and to turn it over to the other side if they are asked for it. Those are the rules all companies and individuals have to play by when the courts are involved (and sometimes even before then).

TorrentSpy, the court determined, had changed, destroyed, or hidden material that they were required to preserve. The MPAA argued that TorrentSpy had altered or destroyed so much evidence that it had become impossible to ever have a fair trial. The court agreed, and issued the ruling.

So the bottom line is that TorrentSpy has lost, but the loss has no bearing on any legal issue related to copyright.

Interesting link of the day: For parents here are ideas on ggod hiding places for christmas gifts.

Okay, they’re not really out of date rules, more like out of date forms, but rules rhymes with tools, so the muse demanded I go with that.

Anyway, the new tools are a some applications the Copyright Clearance Center is playing around with. I haven’t had a chance to do more yet than just take a look, so no opinion yet on whether there’s anything particularly useful, but I am excited that this organization is continuing to look into the future with excitement and clever ideas (unlike many companies, who are merely panicking about changes in society, or as “grumpy old man” from the old Saturday Night Live skit used to say, “That’s not how we did things when I was a kid!”) There’s a nice little review of the new service here.

The out of date rules/forms refer to the inadequacy of registration materials for seeking copyright of websites. Nothing from the US Copyright Office exactly fits a website, and although that does not in any way prevent the actual registration of a website, I suspect that in practice, many websites have gone unregistered due to uncertainty on the part of the would-be registrant as to hwo to proceed. Most website designers have a graphics background, which means they are visually oriented rather than verbally oriented, and the need to interpret seemingly inapplicable registration language may just be too daunting. Some tips are offered here.

ZDNet Asia is reporting that a college in the Phillipines has sued Microsoft for copyright infringement.

Yes, I wrote that correctly. The college claims that Microsoft bought a license to distribute a limited number of copies of a manual for Windows XP that the college wrote. However, the college alleges that Microsoft actually distributed a substantially larger number of copies than it had licensed.

This is interesting for a couple of reasons. One, it highlights the fact that subject matter is not copyrightable. The college wrote a manual about Windows XP. Although the college clearly has no claim to copyright in the software itself, copyright does not in any way prohibit the college - or anyone else, for that matter - from writing about the software and holding the copyright to that writing. However, this is not always true with regard to fictional characters. Sometimes, a character may be protected by copyright, and so writing another book about that character might cause copyright infringement questions.

The second thing about this story that I thought was really interesting is the irony of having a large corporation, which spends massive amounts of time and resources on the protection of its intellectual property, be accused of failing to pay close attention to the copyright of the material it uses. Now, in this case, there’s apparently no question that Microsoft started out handling the material appropriately. It determined that it wanted to reproduce and distribute the manual, and it then bought a license allowing it to do so. But after that initial distribution, it somehow failed to properly keep track of what it had a right to do. I suspect the situation was compounded by the fact that the manual was actually about one of it’s own products, which would have made it easy for employees to assume that Microsoft owned the copyright. But the bottom line is that if the allegations in the lawsuit are true, this is a very good example of how complicated keeping track of rights can be. Even those who make a living tracking their own intellectual property can get confused.

The Chronicle of Higher Education reports on a survey that seems to show colleges are already pretty involved - and fairly heavy handed - in enforcing copyright compliance among their students. Actually, I should say that they are involved in trying to keep students from illegally downloading and sharing movies and music. Other forms of copyright violations are presumably the same way they’ve always been handled, since no one seems to talk about them. Are you old enough to remember the notices at all the copying places? Anyway, the survey gives yet another reason to laugh out loud and then get outraged at the entertainment industy’s continued efforts to, well, frankly I’m not entirely sure what they’re trying to do. I think the big studios and record labels are just angry because they haven’t figured out how to control internet distribution yet, and they’re used to controlling everything, so they’re acting like four year olds and taking their anger out on someone else - colleges that bunch up kids who actually understand the internet.

Not saying there aren’t copyright infringements, because there are. But come on, is this problem really worth the time, and money that’s being put into solving it? Seems a little like a scorned spouse spending tens of thousands of dollars in a divorce to fight over who gets the $500 antique sofa. Get over it, already.

Found a great little web lesson on copyright aimed at kids. Believe it or not, even little kids need to have a basic understanding of copyright, because school projects are more and more likely to wind up on personal webpages kept by kids as young as elementary school. While it’s one thing to say that parents should be supervising, it’s another thing to have a parent actually be able to review everything a kid is doing on a website before they do it. More likely, the parent takes a look after things are up, which is good, but not always good enough. So for a fun little visual to help you explain to your kids what’s okay, what’s not, and how to seek permissions, go here.

The Copyright Royalty board Monday settled on new rates for music licensing by satellite radio stations. The rate is based on the amount of revenue taken in by the station, the only question up for decision was what percentage of the revenue would be due for music fees. Details on the decision can be found in this article by the associated press, via the Houston Chronicle.

Internet radio stations, on the other hand, must pay music fees based on the number of listeners (roughly).

Business wise, the difference in the two pay models means that satellite radio can produce a predictable and fairly accurate yearly budget, while internet radio can only budget on the Magic 8 ball plan - that is, make a guess and then find out later what the real answer is.

Policy wise, I personally see no reason to differentiate between satellite and internet. The current differences are based in part on the technical language in the copyright law concerning transmission methods, although the language was not written with this result contemplated. The difference is also partly based on the relative muscle and obfuscation strategies of the various constituents with an interest in this issue, rather than on a considered, comprehensive policy strategy.

It’s past time for Congress to make that “big picture” policy review. There may very well be great reasons for treating satellite and internet differently, but until that debate takes place in a careful and considered way, the public will continue to see our copyright laws as absurd and random - a recipe for widespread difficulties.

Fun link of the day: A NASCAR blog. I’m not exactly a NASCAR fan, but I’ve become sort of a NASCAR watcher because of my son. He’s a true NASCAR fan(atic). He’s 15 and has cerebral palsy, and he can’t talk but he can find NASCAR clips set to heavy metal music on YouTube with the ease that other teenagers text each other during class. His teacher can’t get him to answer a question in class, but he can subscribe to his favorite posters on YouTube faster than I can get the mouse away from him. So in honor of Dylan, this NASCAR blog is my link of the day.

Unlike the case I wrote about yesterday, most copyright lawsuits are filed by writers who allege that another writer has passed off copied work as their own. That’s what happened not long ago to country music performer Toby Keith, when a lawsuit was filed against him alleging that his song “I Love This Bar” was actually the work of another writer. The court found in favor of Keith, prompting him to issue this unusually frank public statement.