That’s really the question.

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.

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.

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.

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 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?

Authors might find a useful tool here.

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.

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.

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.