Copyright Talk

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.

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/

Many publishers and record labels discourage unsolicited submissions. They say they won’t take them, won’t consider them, and will hate you if you send them. In real life, companies can refuse to listen to them, look at them, or read them, but they can’t stop them from coming, no matter how often and how loud they say “Don’t send unsolicited submissions!”

So I was amused when I discovered the following on the “Terms of Use” page of indie record label New West:
“SUBMISSIONS
New West Records does not accept unsolicited material. By uploading any material, in any form (text, photograph, music, etc.) and in any manner (bulletin board, email or otherwise), you (i) grant to New West Records the non-exclusive, worldwide right to use, post, publish and display your material on the web site, without royalty or compensation of any kind, (ii) expressly waive any and all rights of privacy, moral rights or rights of attribution and integrity, in and with respect to the material, (iii) attest that duplication and distribution of the material will not violate any right of or require any compensation to any person or entity, (iv) avow that you are the copyright owner of the materials comprising the submission or have all rights necessary to authorize its unfettered use and distribution and (v) confirm that you are eighteen years of age or older. You understand that, once your material is posted, anyone can download and/or distribute that material. You expressly waive any and all claims you may have against New West Records and release New West Records and its officers of any liability herewith.”

My first thought was, “Would this language actually insulate New West from a copyright infringement claim if they posted and allowed downloads of an unsolicited submission?”

But before I got through analyzing the legal issue, another thought occurred to me. Might this threat actually encourage submissions from unknown bands? After all, with so many musicians hungry for exposure to a potential audience, and perfectly willing to give away music in exchange for exposure (see my earlier post on Samantha Murphy), if a band believes that New West would actually post their music as a “punishment,” but it’s on the website of a label with the likes of Dwight Yoakum, Steve Earle, and Kris Kristofferson, wouldn’t a lot of bands consider that a good thing?

I didn’t have to analyze that question for long - the answer is yes. If anyone is naive enough to think that New West will actually put their stuff up for download alongside their well-known national musical acts, then they are absolutely going to send it along, in spite of the warnings to the contrary.

Oh, if only it were that easy to get your music noticed.

I came across this article in a publication from American University. It’s a summary of a panel discussion held on the campus about copyright issues in the digital age. One of the panelists was a songwriter, Samantha Murphy, who records and publishes her music on the internet. Her comments impresses upon me (again) how little most people really understand about these issues. So I thought a deconstruction of her comments, as reported, would offer a good setting in which to discuss copyright law as it applies to digital copying and sharing. And I’m also going to invite Samantha to respond here.

From the article: “Samantha Murphy, owner of SMtv Music and an independent singer/songwriter, said it is more important to protect freedom of expression and the forward movement of technology than to be paid for her music.

She is a proponent of fair use and said that she doesn’t see any problem with people making copies of her albums to share with family or friends.”

My Comments: Fair use allows a person to use, in specific, limited ways, copyrighted material without having to seek prior permission from the copyright holder. Fair use does not currently allow the wholesale copying of music as an alternative to buying it. But the thing is, copyright law does not prevent people from copying music without paying for it. Copyright law prevents people from copying music without paying for it, if the copyright holder does not want them to do so. Copyright law says to people that if you want to copy a piece of music, you must have the permission of the copyright holder. That permission can be given in a couple of different ways. One way is for the person who wants to make the copy to simply ask for permission. “Dear Copyright Holder, May I copy your record and give copies to my friends without paying you for it?” Copyright holder can say yes or no. The second way to give permission is for the copyright holder to say in advance that they do not object to free copying and distribution of their record ( and list any restrictions they might want to put on that).

So if Samantha wants to let people copy her music and give it to their family and friends, she can simply put a notice on her cd’s and on her website that says: Copyright 2007, Samantha Murphy. Permission granted for unlimited copying and performance of this recording.” Or it could say “I give permission for any person to copy and give this recording to his or her family and friends.”

If that’s what she wants to let people do, then she just needs to say so. She can also include any restrictions she may have, such as “I do not grant permission to copy and sell this record to others without specific permission. I do not give permission to use this music for free in a commercially distributed film, television show, or any advertising format. These recordings may not be used as the theme song for any event, company, organization, or political candidate without express, prior permission.”

She can be as specific as she wants to be in her notice, such as “I give permission for this recording to be used in a student or independent film with a production budget less than $20,000.”

From the article: “Murphy said she would rather have her music be available to everyone than she be paid for every single c.d. She even allows consumers to listen to her albums in their entirety on her Web site.”

My Comments: All well and good, but be careful what you mean. Would Murphy be okay with a small label copying and selling the recording without her permission? After all, that would get the music to more people. If she fails to retain control of her copyrighted material, she may find herself in exactly that position. It is better to understand that you can control the use of your copyrighted material in the specific ways that you wish by giving permissions, rather than to say that “music should be free.”

From the article: “Murphy described this practice as getting to know the music “as you would look at a painting before you buy a painting, as you would be able to try on clothing before you purchased it.”

My comments: Looking at a painting is not the same as slapping it on a copy machine and getting yourself a free copy to take home. Now, of course most people will say that a copy of a painting is not a substitute, and anyone that really wanted to buy the painting would not be satisfied with a copy machine version. That is probably true. But in the world of music, our technology has reached the stage that the copies are in fact, in most cases, the same as the original. In the days of cassettes, the quality wasn’t as good, but also the distribution was more limited. At least one person in every social group probably had to buy the record in order for cassettes to get made for a few other people. But in the digital age, it would theoretically be possible for one purchase of a recording to end up replicated for free on the computer of every music lover in the world.

From the article: “Murphy compared her philosophy on the fair use of media content to sharing clothing. “If you buy a shirt, you can lend it to a friend,” she said.”

My Comments: This is the best comment in support of current copyright laws that there is. I agree, if you buy a shirt and want to share it with a friend, you can. Just as if you make a recording and want to share it with whoever, you can - copyright law gives you that right. But the friend cannot MAKE you share the shirt with her, and you cannot force your friend or even a complete stranger to share their shirts with you. They have the right to decide what to do with their shirt, just as copyright owners have the right to decide what to do with their music. And they shouldn’t be forced by law to give it away for free any more than I should be forced by law to hang my wardrobe out on the sidewalk for all to share.

Links of the Day
Band Blogging: How To Release Music Online
A Wiseguy I think is kind of funny

I love creative lawyers, those who come up with new ways to reach their client’s goals without simply running to court and fighting. I also love someone who takes down a bully. So this little legal skirmish was wonderfully satisfying to me.

DirectBuy, a company that advertises below retail prices on home products, set out to maintain a squeaky clean image. So they took it badly when a former customer posted an unflattering review of them on several internet sites. The proceeded to have their lawyers send scary, threatening letters to the poster. The poster turned to a non-profit consmer rights groups, Public Citizen for help. And Public Citizen wrote an absolutely marvelous response to DirectBuy, which they posted, along with DirectBuy’s original letter, on their website. Don’t worry about any legal language in these letters - the message comes through loud and clear and is great reading.

Now, why do I mention any of this on the copyright blog? Because the DirectBuy lawyers got very creative in their letter. The letter is what is known to lawyers as the “cease and desist.” That is, a common first volley when a legal wrong is being committed is to notify the wrong-doer, and ask them to immediately stop whatever they are doing that may be legally out of line. Lawyers frequently use this because if the wrongdoer does in fact stop, the client’s problem is often solved without having to spend naymore money on legal fees.

But for some companies, public image is a concern and the sending of a cease and desist can backfire if the recipient makes the letter public and it looks like the “big” guy (a larger company) is “picking” on the “little guy.” In fact, that’s about what happened to the RIAA with their scary notices to college students who were allegedly illegally downloading music. Even though many of the students were actually acting illegally, the RIAA’s approach looked heavy handed and unfair to a lot of observers.

So to get around this potential problem, the DirectBuy lawyers came up with a strategy. The last paragraph of their letter specifically notes that the entire letter is protected by copyright, and that the recipient is not authorized to reproduce it. And furthermore, said the lawyers, if he does reproduce the letter, they might go ahead and sue him for that, too. The whole thing is absurd enough to wind up on a TV show.

Newspapers and magazines are, as a rule, diligent about ensuring that the material they publish does not infringe anyone’s copyright. Print media generally approach the question of copyright with a “don’t publish unless you’re sure” attitude. Google, on the other hand, is diligent about “unpublishing” infringing material, IF the copyright owner notifies them. They do not, as a general rule, inquire into or verify that a person uploading material to their site actually has the right to do so.

Why is there a difference? Partly, the difference is a result of a law, the Digital Millenium Copyright Act (DMCA), that is aimed at digital publishing. The DMCA was created in response to issues that arose surrounding the use of bulletin boards and chat rooms in the early days of the internet. The DMCA was created largely before the Google and YouTube style business models that are based on user-generated content in a way far beyond the original bulletin board concept, came into existence. However, so far Google has asserted that the DMCA, with it’s “don’t ask unless someone brings it up” approach, applies to it’s pages.

Google, the one time darling of just about everyone, has been taking more and more heat for their business tactics. Now, a small non-profit ethics group is taking Google to task before Congress. What I find most interesting about the group’s approach is the way they found several hundred pirated movies on the Google site - they hired an 18 year old student for a week at ten dollars an hour.

I have long felt some sympathy for these internet giants who have provided an outlet for the creative talents and interests of literally millions of ordinary people all over the world. I’ve tended to think that the technology that allows that to happen also means that it is not economically feasible to have actual people, with actual eyes and ears, that can review all the submissions. The pros of better content review versus the cons of bottlenecking a service that I think is extremely valuable have seemed to me to be difficult to balance. But I don’t think so now. Even a relatively small staff of internet surfers could drastically cut the numbers of pirated videos being posted. And Google can easily afford more than a small staff to do that work. What a great part-time work-at-home job this would be! Not only major studios, but independent filmmakers would benefit from this as well.

Google ethics are seriously failing the “smell” test.

Copyrights are owned by the creators of the work. The law assumes that all authors are equal owners, unless there is an agreement otherwise. What does this mean?

In broadway music, it is common for lyrics and music to be written by different people. So if there is one lyricist and one composer, each will own 50% of the copyright. But suppose there is one composer and TWO lyricists? Under the law, each will own 33%. But if the three people agree that lyrics and music should each have 50% of the value of the song, then they can all agree that the composer owns 50% and each of the two lyricists own 25%. Or if the lyrics were substantially written by one person, and a second person assisted in making some minor changes, then the parties could agree that the second lyricist might own 10% and the first lyricist own 40%. Essentially, the parties can agree to any split that want, but if they do not have an agreement (in writing and signed, so that their intent can be proven), then each will own an equal share.

If Linkin Park writes a song, all the members own an equal share - unless the members all agree to varying percentages among the members. Shakira, on the other hand, is a solo artist and does not write with a band - but if she writes with a partner, then once again she will own an equal share of the copyright along with whatever other people participated in writing the song - unless they agree in writing to different percentages.

There is no magic form that these agreements, commonly called “split sheets,” need to take. Simply write out the date, the name of the composition or work, all authors, and the percentages that each owns. Then have all the authors sign the agreement. When the work is sold,n licensed, or registered with a performing rights society or other entity, make sure that the proper percentages are assigned to each author.