Friday’s Endnotes – 04/26/13

April 26, 2013 · · 3 comments

House Judiciary Chairman to launch sweeping review of US copyright law — Topping the US copyright news this week was Rep. Goodlatte’s announcement that his Committee will be conducting a series of comprehensive hearings over the next several months with the aim of taking a thorough look at the current state of copyright law. Hilicon Valley reports, with statements from several copyright-related organizations responding to Goodlatte’s announcement.

Why Aereo encourages the wrong kind of innovation — Peter Leung discusses the Aereo decision, with a brief look at cases from Australia, Japan, and South Korea which held that similar services infringed on copyright protections. But the heart of Leung’s argument is that a win for Aereo is a loss for everyone else. “Although IP law is generally supposed to promote innovation, it is strange to think that Aereo’s business plan largely involves creatively engineering its way around the law rather than solving an actual technical problem. Other than Aereo, the clear winners in this are manufacturers of server hard drives and tiny antenna arrays.”

Embedding is no criminal offence, the Brussels Court of Appeal says — A court in Belgium ruled that embedding an infringing YouTube video does not rise to the level of a criminal offense under that country’s laws. Unlike civil liability, criminal liability requires the additional element of malicious or fraudulent intent. Here, the court found that lacking, in part because YouTube’s terms of service prohibit the uploading of infringing content, so it cannot be presumed that the defendant was aware the video was infringing.

Churnalism: Where is Your Journalism Coming From? — A new tool from the Sunlight Foundation allows you to check online news sites and articles to see if passages from Wikipedia or press releases show up without attribution. An interesting tool. Plagiarism Today’s Jonathan Bailey points out, “The big idea behind both versions of Churnalism is not so much to detect all kinds of plagiarism or spot instances of copyright infringement. Rather, the goal is to find instances where journalists recycle content from sources that readers might not deem trustworthy or, in other cases, may take quotes out of context.”

MPAA Supports Meaningful Treaty for Visually Impaired — Chris Dodd of the MPAA writes, “We believe that access for the blind to books and other publications is a cause worth promoting. We also believe in the fundamental principles of copyright that empower creators and encourage creativity around the world. Unlike those who seek to weaken copyright protection, we believe these two objectives are not mutually exclusive.”

What Hunter S. Thompson Really Said About the Music Industry… — Paul Resnikoff digs up an interesting tidbit showing that the oft-quoted line attributed to Thompson is not entirely accurate.

Facebook Home Propaganda Makes Selfishness Contagious — Not copyright related per se, but the ethics observed in the article are shared by some who argue against effective copyright protection. The author writes, “This isn’t intended to be a “get off my lawn!” argument, though it is indeed old-fashioned to believe everyone deserves respect. Back in the 1700’s, German philosopher Immanuel Kant made a big deal out of these ideals, asking what right we have to be self-absorbed while expecting others to rise above indifference. My argument is that some convictions deserve to be innovation proof.”

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Friday’s Endnotes – 09/21/12

September 21, 2012 · · 3 comments

The objection to the rights of literary property … proceeds, it should be observed, not upon fact but upon vague and unwarranted suspicion. It says, in effect, “We dare not trust you with your rights, because we suspect that you would make an ill use of them.” Why should this be suspected? No good reason can be assigned why the descendants of literary men should be less honest or less liberal than other persons. Surely, then, the objection is of a most ungracious character.

— Are the Laws Regarding Literary Property Founded in Justice? (1825).1

Copyright doesn’t limit online speech — IP scholar Adam Mossoff makes the case why copyright is not censorship. “The right to free speech is the right to express one’s thoughts without censorship by the government. Copyright does not prohibit anyone from creating their own original novels, songs or artworks. Importantly, copyright does not stop people from thinking, talking or writing about copyrighted works.”

Our forgotten Constitutional right — intellectual property protection — Marking the 225th anniversary of the drafting of the US Constitution this week, Colin Hanna reflects on the protection of creator’s rights in the foundational document. “The focus of any discussion of Constitutional rights usually focuses on the limitations placed upon its power by one of the first ten amendments to the Constitution, known collectively as ‘The Bill of Rights.’ There are, however, other specifically enumerated rights laid out in the main body of the Constitution that sometimes go unnoticed. One of those is the protection of copyrights and patents, or what we now call ‘intellectual property.’”

Visions of a Blind Photographer — A fascinating look at the work of Sonia Soberats, a 77 year-old woman who took up photography after losing her eyesight to glaucoma. As Soberats says, “It surprised me that the human mind can do whatever it wants if we work toward it.”

I Has Moar Flava: Nine Copyright Observations About the myVidster Case — IP attorney Rick Sanders takes a closer look at last month’s Flava Works v Gunter decision. Insightful and quite entertaining.

MPAA debuts new website telling stories behind the story — Check out thecredits.org, a new site that takes a behind the scenes look at the people and technology creating films. Like this article on the Democratization of CGI Technology, which traces the history of computer generated special effects in movies and how advances in technology have “fostered greater opportunity to bridge the gap between independent films and Hollywood studios.”

Top False Claims of the New Internet Association — Part 2 of Internet as Oz Series — This week, Internet giants including Google, Facebook, and Amazon launched yet another lobbying organization. Scott Cleland fact-checks the claims made by the Internet Association.

Footnotes

  1. Philomathic Journal and Literary Review, Vol. 3, pp 393-94. [↩]
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Megaupload Megaupdate

July 23, 2012 · · 15 comments

Six months ago, authorities in the United States and eight other countries moved against Megaupload following a grand jury indictment that charged the company and its officers with five federal charges stemming from a “mega-conspiracy” of criminal copyright infringement. Police in New Zealand arrested the site’s founder, Kim Dotcom, and three other Megaupload employees at Dotcom’s mansion (two other employees indicted were arrested a few days later in Europe while the last employee charged in the indictment remains at large). The indictment alleges the company and its employees made over $175 million in illegal profits, and the case is considered one of the largest criminal copyright cases in US history.

There are a lot of moving parts to this case already — no surprise, given its size and complexity — so a quick update may be helpful. The New Zealand Listener has put together a handy timeline of the Megaupload case. Specifically, I want to look at some of the issues that have made headlines recently, including the New Zealand extradition proceedings, a motion to dismiss filed in the US, a New Zealand ruling that certain search warrants were illegal, and a US proceeding seeking access to user data stored on Megaupload servers.

Extradition

The formal request for extradition of Dotcom and three other Megaupload defendants in New Zealand was filed on March 2nd. The hearing was originally scheduled for August, but the hearing has been postponed until at least March 2013, due to the growing legal complications surrounding the case.

Under New Zealand law, extradition is governed by the Extradition Act of 1999 and any bilateral treaty in place.1 The United States and New Zealand entered into an extradition treaty in 1970.2 That treaty lists thirty-two offenses for which subjects can be extradited; criminal copyright infringement is not one of them. However, under New Zealand’s Extradition Act, section 101B, someone may also be extradited for offenses that carry a penalty of not less than one year in the requesting country and involves conduct that would be criminal had it occurred in New Zealand and carries a similar penalty. Extradition of suspects indicted but not convicted require an arrest warrant and any accompanying depositions.

Here, the extradition hearing is likely to hinge on whether the offenses Dotcom has been charged with are offenses in New Zealand that would carry a similar penalty. Admittedly, the primary operation of Megaupload presents a novel set of facts for criminal liability of copyright infringement even in the US, but the indictment also alleges a number of the defendants personally uploaded infringing works to the service, which, by itself, could be sufficient to constitute an extraditable offense under New Zealand law.

And, in an odd twist, the New Zealand judge who had been presiding over the extradition proceeding stepped down last week after calling the US “the enemy” at a copyright conference earlier this month. Judge Nevin Dawson, who granted Dotcom bail in February, will be taking over the case.

Motion to Dismiss

On July 3, Megaupload filed a motion to dismiss for lack of personal jurisdiction. The motion to dismiss applies only to the Megaupload Limited corporation itself — it does not pertain to Kim Dotcom, or the other individual defendants, personally, nor does it pertain to Vestor Limited, the other corporate defendant indicted.3

Corporations, as separate entities, have long been held liable for criminal actions. Said the Supreme Court in 1909 (quoting an earlier criminal law treatise):

Since a corporation acts by its officers and agents their purposes, motives, and intent are just as much those of the corporation as are the things done. If, for example, the invisible, intangible essence of air, which we term a corporation, can level mountains, fill up valleys, lay down iron tracks, and run railroad cars on them, it can intend to do it, and can act therein as well viciously as virtuously.

But, like with individual defendants, before a case can proceed against a corporation, the court must have personal jurisdiction over it, and before a court can exercise personal jurisdiction, the corporation must be properly served.4 Megaupload’s attorneys argue that charges against the company should be dismissed because it wasn’t properly served under Federal Rules of Criminal Procedure 4(c)(3)(C). Under that rule:

A summons is served on an organization by delivering a copy to an officer, to a managing or general agent, or to another agent appointed or legally authorized to receive service of process. A copy must also be mailed to the organization’s last known address within the district or to its principal place of business elsewhere in the United States.

Megaupload basically argues that, under the second portion of that rule, a corporation can never be held liable for crimes committed in the United States so long as it doesn’t maintain an office or address within the country.5 The United States responded that Megaupload’s reading of the Rule can’t possibly be correct — “Neither the facts, the law, nor common sense and the interests of justice, which the Federal Rules of Criminal Procedure are designed to serve, support as extreme a remedy as the outright dismissal sought by defense counsel” — and offers a number of arguments against it, as well as alternative methods that could be used to properly serve Megaupload. The court will hear oral arguments on the motion on July 27.

Should the court grant the motion to dismiss Megaupload Limited, the effects are unclear. Vestor Limited and the other indicted defendants, including Dotcom, would still remain. Given the allegations of personal involvement by the defendants, and the fact that Megaupload Limited can be considered merely a corporate “alter ego” of these defendants, dismissal may turn out to be mostly a symbolic victory.

Search Warrant Illegal

On June 28, a New Zealand judge ruled that certain search warrants, used to gather evidence from Dotcom’s mansion during his arrest, were illegal. The search warrants were executed by New Zealand police, on behalf of the US pursuant to New Zealand’s Mutual Assistance in Criminal Matters Act (MACMA). The US had requested the warrants to search Dotcom’s residence for evidence that could be used to “demonstrate that the mega-conspiracy’s directors and employees were aware that Megaupload’s websites were regularly used to reproduce and distribute infringing copies of copyright works, to gain a better understanding of and document the mega-conspiracy’s activities, and to identify additional individuals who were working with the mega-conspiracy.”

The judge concluded that the search and seizure was overly broad and, thus, illegal. She also held that the New Zealand Central Authority breached MACMA when it shipped clones of hard drives seized to the FBI. The immediate impact of the ruling is unknown. New Zealand police and the FBI haven’t responded, and it is highly likely the ruling will be appealed up through the New Zealand court system. If the warrants were illegal, the New Zealand police may be able to cure the defect with new, narrower warrants. Or, some of the evidence may become excludable at trial as “fruit of the poisonous tree.”

I’m not familiar with New Zealand extradition proceedings, so take this with a grain of salt, but I doubt this ruling would affect Dotcom’s extradition hearing. The evidence seized here was for the US criminal trial; the extradition hearing is similar to a preliminary hearing or grand jury in that the judge is primarily concerned with whether there is sufficient evidence for a trial to proceed, evidence which the US had already submitted.6

User Data

The entry of third parties seeking access to their own data that had been uploaded to Megaupload adds a collateral issue to this case. On June 29, a hearing on the motion was held, and a decision is forthcoming.

MegaUpload leased over 500 servers from Virginia based Carpathia Hosting as part of its business. As part of its investigation, the United States served a search warrant on Carpathia. It copied select data from the servers and then released the servers back into the custody of Carpathia.

Carpathia later moved for a protective order regarding the servers. According to the order, it is costing Carpathia thousands of dollars a day to preserve the servers, and the company is losing money because it cannot repurpose the servers for other clients. As the company notes, “Carpathia does not have any legal obligation to preserve evidence on the Mega Servers” — it likely could delete the data on the servers and put them back into use without liability. However, it has so far refrained from doing so because several parties have expressed interest in the data. Those include MegaUpload itself, which wishes to examine the servers for evidence to prepare for its defense in the criminal trial, and the Electronic Frontier Foundation, which, according to Carpathia, ”claims to represent the interests of end users who have non-infringing content stored on the Mega Servers and has requested that the data be preserved in order to facilitate its return to Mega users who have not engaged in copyright infringement.”

In May, an individual who had an account with MegaUpload before it was indicted filed with the court to have his property returned.  In response, the US has reiterated that it has no continuing interest in the servers or data. The MPAA, an interested non party, told the court that it has no position in the matter, but whatever the court decides to facilitate return of user data, “it is essential that the mechanism include a procedure that ensures that any materials the users access and copy or download are not files that have been illegally uploaded to their accounts.”

Demand Progress, a 527 group which specializes in writing strident headlines, added its own two cents with its own court filing. The PAC told the court, ”Our sincere hope is for the immediate return of all property not related to Mr. Dotcom’s indictment and a clear pronouncement that the seizure of the private property of innocent third parties is not countenanced by our Constitution.” But Demand Progress has it entirely wrong: the US never seized Megaupload’s servers in the US and is not exercising any continuing custody over them.

As the Government notes in its brief:

The government does not possess any of Mr. Goodwin’s property, nor does it seek to forfeit it. The government also does not oppose access by Kyle Goodwin to the 1103 servers previously leased by Megaupload. But access is not the issue – if it was, Mr. Goodwin could simply hire a forensic expert to retrieve what he claims is his property and reimburse Carpathia for its associated costs. The issue is that the process of identifying, copying, and returning Mr. Goodwin’s data will be inordinately expensive, and Mr. Goodwin wants the government, or Megaupload, or Carpathia, or anyone other than himself, to bear the cost.

The US later points out, ”Mr. Goodwin does not argue that the actual search violated his rights – he actually argues the opposite. Mr. Goodwin claims that the government’s failure to seize his information led to its abandonment ‘under circumstances in which it was both inaccessible and potentially subject to destruction.’”

From a legal standpoint, I don’t see how the court can exercise its jurisdiction over Megaupload’s servers as Goodwin and Demand Progress have asked. Courts can exercise jurisdiction where the federal government once had property but later gave it away, lost it, or destroyed it.7 But a court can’t force the government to return property it never possessed, as here.8

In the event the court denies any relief, Goodwin is unfortunately in the same situation as he would be had Megaupload stopped paying its bills to Carpathia — he could seek a remedy from Megaupload (highly unlikely, given that Megaupload’s terms of service waived all liability for loss of data) or arrange to recover his data himself from Carpathia.

Footnotes

  1. Extradition Officer, Legal Division, Ministry of Foreign Affairs and Trade, New Zealand: Extradition. [↩]
  2. Treaty on Extradition Between the United States of America and New Zealand (entered into force Dec. 8, 1970). [↩]
  3. According to the indictment, Megaupload Limited is the registered owner of Megaupload.com and Megaclick.com. Vestor Limited owns 68% of the shares in Megaupload Limited, as well as being the sole shareholder of Megamedia Limited, an unindicted corporation that controls Megavideo and other “Mega” companies and sites. Kim Dotcom is the sole director and shareholder of Vestor Limited. [↩]
  4. Murphy Brothers v. Michetti Pipe Stringing, 526 US 344, 350 (1999): “In the absence of service of process (or waiver of service by the defendant), a court ordinarily may not exercise power over a party the complaint names as defendant.” [↩]
  5. “In no event can the Government satisfy Rule 4’s second requirement that it mail the summons to Megaupload’s ‘last known address within the district or to its principal place of business elsewhere in the United States,’ for no such address exists. Megaupload does not have an office in the United States, nor has it had one previously. Service of a criminal summons on Megaupload is therefore impossible, which forecloses the Government from prosecuting Megaupload.” [↩]
  6. See the May 29, 2012 opinion of the New Zealand court presiding over the extradition hearing for more discussion on the purpose and standards of extradition. [↩]
  7. See cases cited in US v. Chambers, 192 F.3d 374, 376-77 (3rd Cir. 1999). [↩]
  8. See US v. Solis, 108 F.3d 722 (7th Cir. 1997). [↩]
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Was Hollywood Built on Piracy?

May 07, 2012 · · 44 comments

Was Hollywood built on piracy? That’s what some seem to suggest. Lawrence Lessig’s version of this story from his 2004 book Free Culture is archetypical:

The Hollywood film industry was built by fleeing pirates. Creators and directors migrated from the East Coast to California in the early 20th century in part to escape controls that film patents granted the inventor Thomas Edison. These controls were exercised through the Motion Pictures Patents Company, a monopoly “trust” based on Edison’s creative property and formed to vigorously protect his patent rights.

California was remote enough from Edison’s reach that filmmakers like Fox and Paramount could move there and, without fear of the law, pirate his inventions. Hollywood grew quickly, and enforcement of federal law eventually spread west. But because patents granted their holders a truly “limited” monopoly of just 17 years (at that time), the patents had expired by the time enough federal marshals appeared. A new industry had been founded, in part from the piracy of Edison’s creative property.

This little bit of historical revisionism has popped up regularly since then. In January, The Pirate Bay issued a press release repeating the story and claiming they are the modern day equivalent of Hollywood. And most recently, Torrentfreak reminded its readers of the story — picked up by Techdirt, whose story was in turn picked up by Cory Doctorow — in response to MPAA Chairman Chris Dodd’s spoken remarks at last month’s CinemaCon.

The purpose of this spin on the facts seems to be to show some kind of hypocrisy on the part of movie studios. The evidence, though, doesn’t support the claims.1

The Dawn of the Motion Picture Industry

The end of the 19th century found inventors racing to develop technology that could record and display moving pictures, and Thomas Edison was the first to bring a commercial motion-picture machine to market.2 The early years saw some patent skirmishes between rival companies as film began to grow in popularity. In 1908, Edison helped form the Motion Picture Patents Company (MPPC) with other patent holders. Together, they held a virtual monopoly on the movie industry; their patents covered projectors, cameras, and film stock. Their control went beyond patents, however. Using tie-in agreements and licensing, and forming the General Film Corporation to monopolize film distribution, they locked out competition at every step, from making movies to exhibiting them.3

Around this time, a group of independent filmmakers entered the market. These independents included many of the founders of the major studios that still exist today, including Carl Laemmle of Universal Pictures and Adolph Zukor of Paramount Pictures. The independents challenged the MPPC, creating and exhibiting films with unlicensed equipment and buying supplies from outside the US. Edison responded forcefully to the challenges — he took Laemmle’s operation especially personal, suing the independent filmmaker 289 times.

Who Were the Real Pirates?

According to this headline from a San Francisco newspaper in 1913, it wasn’t the independents who were the pirates:

The independents weren’t infringing on any patents themselves, they were violating the license and tie-in agreements that came with the MPPC’s equipment. The MPPC did enjoy some early success with its litigation efforts,  convincing several courts that illegal restraint of trade was not a defense to patent infringement.4

But the MPPC didn’t rely solely on the law — Edison enforced the Trust’s domination with violence. Hired thugs would smash cameras and raid the independents’ places of business.5 Historian Thaddeus Rockwell notes the extent of the violence perpetuated by the Trust: “They seized film, beat up directors and actors, forced audiences out of theaters, smashed the nickelodeon arcades and set fire to entire city blocks where they were concentrated.”

The organization’s anti-competitive tactics caught the attention of the US government, which took action against them. In 1916, the Eastern District Court of Pennsylvania entered a decree against the Motion Picture Patents Co. The judge found that the MPPC, the General Film Company, and the individual companies involved had “attempted to monopolize and have monopolized and have combined and conspired … to monopolize a part of the trade or commerce … consisting of the trade in films, cameras, and projecting machines” in violation of the Sherman Antitrust Act. It declared all the contracts, patent licenses, and patent assignments used by the MPPC illegal.

The trust also began suffering setbacks in the courts, and in 1917, the US Supreme Court unequiovically struck down one of the license agreements that the MPPC had used to extend its monopoly.6 In that case, the MPPC had sued Universal Film Manufacturing Company for patent infringement pursuant to its license agreement which restricted use of the MPPC’s film projectors to only exhibiting or projecting films licensed by the MPPC. (Imagine if a company like Apple claimed that it was patent infringement to play digital music legally acquired somewhere other than iTunes on an iPod.)

The Court recognized that a patent grant is limited “to the mechanism described in the patent as necessary to produce the described results. It is not concerned with and has nothing to do with the materials with which or on which the machine operates. The grant is of the exclusive right to use the mechanism to produce the result with any appropriate material, and the materials with which the machine is operated are no part of the patented machine or of the combination which produces the patented result. The difference is clear and vital between the exclusive right to use the machine, which the law gives to the inventor, and the right to use it exclusively with prescribed materials to which such a license notice as we have here seeks to restrict it.”

The Supreme Court concluded:

A restriction which would give to the plaintiff such a potential power for evil over an industry which must be recognized as an important element in the amusement life of the nation, under the conclusions we have stated in this opinion, is plainly void, because wholly without the scope and purpose of our patent laws, and because, if sustained, it would be gravely injurious to that public interest, which we have seen is more a favorite of the law than is the promotion of private fortunes. [Emphasis added.]

Why Did the Studios Move to Hollywood

Not only is the story that Hollywood was built on “piracy”, the claim that the independent studios ran to Hollywood to get away from Edison and his legal threats is greatly overstated. Southern California offered many advantages over the established filmmaking centers of New York and Chicago that provide stronger reasons for the migration.

Geography, for one. California offered a wide variety of scenery that was useful as substitutes for all sorts of locations, as this 1927 Paramount Studios map illustrates perfectly.

The landscape of Southern California:

was not only spectacular but extraordinarily varied. Summer greenery and winter snow, sunny beaches, barren deserts and rocky mountains were all with a short distance of each other. Florida and Texas could supply the climate for year-round outdoor filming, but they did not have quite the range of scenic choices within a day’s trip from the studios. Even the light of California was different, gently diffused by morning mists rolling in from the Pacific or by dust clouds blowing off the sandy hills. The rugged western landscape and the wide-open spaces were felt as enormous attractions in the rest of the world.7

Weather played a huge role too — LA offers 70 degree year-round weather as opposed to winters in New York or, worse, Chicago.8 Peter Ediden of the New York Times notes, “This wasn’t merely a matter of comfort; even the brightest electric lights of the time were too dim to  expose film properly, so a run of cloudy days could halt production at, say, the Edison studios in East Orange, N.J.”

In fact, nearly everything about the area was an improvement. Land was cheaper and more available and the costs of labor were lower.

Former Curator of Film at the Museum of Modern Art in New York Eileen Bowser points out that the hiding from Edison factor makes little sense:

[T]he New York Motion Picture Company had already managed to escape the Patents Company’s pursuit just by going to Neversink in the Catskills that summer. Furthermore, by Balshofer’s own account, they were easily found by Patents Company spies in California a short time after they got there. At the same time, the Trust companies, which had nothing to hide, were also discovering the great California winter sunshine.9

What it means

The proponents of this myth seem to want to suggest an analogy: Hollywood was built by “outlaws”; now Hollywood has become the incumbent, seeking to stop the next generation of “outlaws”. But this is a false equivalence. The Pirate Bay (or Megaupload, etc.) isn’t producing its own movies. Recognizing exclusive rights to a creative work doesn’t prohibit anyone from creating their own works. Stopping someone from offering copies, especially complete, verbatim copies, of a work is not anti-competitive.

The Trust’s actions against the independents were found illegal; the agreements were declared “plainly void” by the Supreme Court. Contrast that to the Court’s more recent decision in MGM v. Grokster, where even the dissent said, in reference to the P2P service Grokster, “deliberate unlawful copying is no less an unlawful taking of property than garden-variety theft.”

Footnotes

  1. This seems a common theme when looking at copyright criticims. See Remix Without Romance: What Free Culture Gets Wrong for another recent example. [↩]
  2. Robert Sklar, Movie-Made America: A Cultural History of American Movies, pg 13 (1994). [↩]
  3. Robert Sklar has said, “The roots of the motion-picture monopoly lay in Thomas A. Edison’s greed and dissimulation; and the results of it were a complete debacle for the Wizard, his leadership and social class.” [↩]
  4. Michael Conant, Antitrust in the Motion Picture Industry, pg. 20 (1960). [↩]
  5. Jane Chapman, Comparative Media History: An Introduction: 1789 to the Present, pg. 132 (2005). [↩]
  6. Motion Picture Patents Co. v. Universal Film Manufacturing Co., 243 US 502. [↩]
  7. Eileen Bowser, The Transformation of Cinema, 1907-1915 (History of the American Cinema), pg 151 (1994). [↩]
  8. “Bad weather in Chicago was the primary reason the movies first turned toward the West, and eventually migrated to Hollywood.” Paul Zollo, Hollywood Remembered: An Oral History of Its Golden Age, pg. 12 (2002). [↩]
  9. Transformation of Cinema, pg. 150. [↩]
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Flava Works v Gunter: Does Embedded Video Infringe?

April 30, 2012 · · 5 comments

A relatively unknown copyright infringement case is starting to attract more attention.

In October 2010, self-described “gay ethnic adult company” Flava Works sued Marques Rondale Gunter, who owns and operates myVidster, a “social video bookmarking” site for copyright and trademark infringement. Now the case is in front of the Seventh Circuit, and it has attracted amicus briefs from heavyweights like the MPAA, Google and Facebook, and perennial amici Public Knowledge and the EFF.

While the appeal raises several important issues, it is one in particular that has attracted much of the attention online. Can embedding a video infringe on copyright?

Flava Works in the Lower Court

Last May, the Northern District Court of Illinois ruled on Gunter’s motion to dismiss the complaint. The court dismissed all the claims except the contributory copyright infringement claim. It found that Flava Works had plead sufficient knowledge. Said the court, “The knowledge element for contributory copyright infringement is met in those cases where a party has been notified of specific infringing uses of its technology and fails to act to prevent future such infringing uses, or willfully blinds itself to such infringing uses.” myVidster’s receipt of multiple DMCA takedown notices involving the same files and users triggered a duty for it to take steps to prevent future infringing uses.

Later that summer, the Illinois court granted Flava Works request for a preliminary injunction against Gunter, concluding that it was likely to succeed on the merits of its claim of contributory copyright infringement.1 Notably, it rejected Gunter’s contention that the site was protected by the DMCA’s safe harbor. It primarily based this decision on the site’s lack of a repeat infringer policy — one of the prerequisites for safe harbor protection — and this decision seemed an easy one. Said the court, “It is difficult for us to understand how defendants can argue with a straight face that they have adopted and reasonably implemented a ‘repeat infringer’ policy.”

Gunter moved for a reconsideration of the preliminary injunction, which the court denied. The court explained, “The vast majority of myVidster users have not created backup copies of videos on the site, but have directed myVidster to “embed” video clips on the site through the posting/bookmarking process. It is this action, to which defendants also refer as “inline linking,” that is the focus of the instant motion to reconsider.” Gunter argued that the Ninth Circuit’s holding in Perfect 10 v. Amazon should compel a different result.

In Perfect 10, the Court was faced with the question of whether Google’s image search, which used in-line linking to display full-size images from other sites in its results, directly infringed the plaintiff’s display right. After interpreting the Copyright Act’s language, the Ninth Circuit adopted what the District Court called the “server test” — infringement of the display right is only possible when the image resides on the web site’s own servers, not when the image is only displayed in-line but resides on another web site’s computers.

Flava Works disagreed with Perfect 10:

We decline to apply Perfect 10 to this case. The Ninth Circuit’s decision is not binding on this court; moreover, it is highly fact-specific and distinguishable. Defendants assert that the cases involve “essentially the same technology.” Both cases may involve inline linking, but the processes are quite different. The relevant comparison is between the conduct of Google and the conduct of myVidster’s users, not between Google and myVidster. In response to a search query, Google’s image search engine uses an automated process to display search results through inline linking. In contrast, myVidster’s users do not employ any sort of automation to determine which videos they bookmark; rather, they personally select and submit videos for inline linking/embedding on myVidster. (And many of those hand-picked videos are infringing.) Google’s use of inline linking is neutral to the content of the images; that of myVidster’s users is not.

To the extent that Perfect 10 can be read to stand for the proposition that inline linking can never cause a display of images or videos that would give rise to a claim of direct copyright infringement, we respectfully disagree. In our view, a website’s servers need not actually store a copy of a work in order to “display” it. The fact that the majority of the videos displayed on myVidster reside on a third-party server does not mean that myVidster users are not causing a “display” to be made by bookmarking those videos. The display of a video on myVidster can be initiated by going to a myVidster URL and clicking “play”; that is the point of bookmarking videos on myVidster—a user can navigate to a collection of myVidster videos and does not have to go to each separate source site to view them.

Gunter persisted and appealed Flava Works to the Seventh Circuit.

Can Embedding Infringe Copyright?

One of the major issues in the appeal — and the one that has attracted the attention of Google, Facebook, and the MPAA — is whether embedding videos violates a copyright owner’s public performance right. Secondary liability requires direct infringement, and the parties dispute the lower court’s conclusion that myVidster’s users, who add such embedded links to the myVidster site, are direct infringers.

Gunter, and amici Facebook and Google, urge the Seventh Circuit to adopt the Ninth Circuit’s “server test.” As noted above, the Ninth Circuit interpreted the Copyright Act to limit liability for public display of a copyrighted work to only those online users who actually copy the work onto their own server.

Flava Works, joined by the MPAA as amicus, argue in support of the lower court’s decision.

Gunter is facing an uphill battle here. As the lower court noted, the Ninth Circuit’s decision isn’t binding on the Seventh. And while the “server test” has been received favorably by some academics and service providers, it has apparently not been endorsed by any other court outside the Circuit. And, the “server test” is not found in the text of the Copyright Act or suggested by the legislative history.

There’s another problem for Gunter. Perfect 10 dealt solely with the public display right in copyright, while here the court is dealing with both the right to publicly display and publicly perform a work. The Ninth Circuit’s adoption of the “server test” was premised on the language of the Copyright Act’s definition for “display”:

To “display” a work means to show a copy of it, either directly or by means of a film, slide, television image, or any other device or process or, in the case of a motion picture or other audiovisual work, to show individual images nonsequentially.

The court seized on the definition’s inclusion of the word “copy” to support its conclusion. However, the Act’s definition of “performance” doesn’t refer to copies:

To perform or display a work “publicly” means—

(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or

2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

On a side note, this definition makes sense. When a theater performs a dramatic play, or a band performs a musical composition, it doesn’t generally have a “copy” of the work, but such a performance is still within the exclusive rights of the copyright owner.

But more to the point, even if the Ninth Circuit’s “server test” were adopted by the Seventh Circuit, it doesn’t follow, from the language of the definitions, that it should be applicable to the public performance right.

It’s my opinion that embedding a video can be considered a public performance (I’ve touched on this issue before in relation to last summer’s Commercial Felony Streaming Act). In fact, I was somewhat surprised in researching to discover that the issue doesn’t seem to have come in front of a court until now. But others have concluded the same — here’s an article from 2007 quoting This Week in Law’s Denise Howell saying as much.

And, despite some of the hyperbole2 that has resulted from Flava Work’s position on embedded links, I don’t believe a decision affirming the lower court would result in much of a change for occasional users of embedded links — like, say, bloggers or forum operators. These users have always had the benefit of the DMCA safe harbors for any unintentional infringement that might stem from embedding a video, as well as the fair use defense in appropriate circumstances.

Is Linking ever Infringement?

Part of the negative response to this case seems to stem from an idea that linking can never give rise to liability for infringement — this is, in fact, one of the arguments Google and Facebook make in their joint amicus brief.3 But such a bright line rule has never existed.

Congress certainly hasn’t held this view. In the legislative history for the DMCA, you can find evidence that Congress believed linking can, in some cases, be infringing. The House Commerce Committee explained that the “red flag” knowledge standard in the bill was intended “to exclude from the safe harbor sophisticated ‘‘pirate’’ directories—which refer Internet users to other selected Internet sites where pirate software, books, movies, and music can be downloaded or transmitted.” And the safe harbor for information location services itself (17 USC § 512(d)) expressly shields service providers against liability “for infringement of copyright by reason of the provider referring or linking users to an online location containing infringing material or infringing activity, by using information location tools, including a directory, index, reference, pointer, or hypertext link.”

And, despite its legal arguments, Google itself recognizes that linking can infringe copyright. In its AdWords copyright policy, Google states that “Software or sites that enable streaming, copying, or downloading of movies, music, television programs, games, or software” are not allowed — and such sites include “Link aggregation sites primarily aimed at enabling the download or streaming of music, movies, or other media.”

Footnotes

  1. Note that the District Court followed the traditional standard for copyright infringement injunctions, where a likelihood of success on the merits creates a presumption in favor of an injunction. This is in contrast to the Second and Ninth Circuits, which extended the Supreme Court’s holding in eBay v. MercExchange that no such presumption exists for patent injunctions to copyright infringement cases. Gunter has appealed this point along with the others discussed here, and while it is an interesting and important issue, it is beyond the scope of today’s article. [↩]
  2. According to the site linked above: “If the MPAA is successful and the decision is upheld, this could have far reaching, and dire, consequences for Internet users of all stripes; the ruling would seem to include even the idea of linking back to the host-site instead of embedding, essentially rendering a critical part of online culture illegal. It would, much like ACTA, accomplish a large part of what SOPA and PIPA sought to do without actually requiring the pesky consent of the governed that otherwise is at the heart of American law.” [↩]
  3. The court and parties to this case use the term “linking” to refer both to hyperlinking — where a web site’s text can be clicked to go to another web site — and embedded linking — where an image or video on another server is displayed as though it is part of a web site. Under the hood, both are acheived in much the same way, though each offers a different type of experience to the user. [↩]
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Studios ask SCOTUS if state law can protect uncopyrightable ideas

August 29, 2011 · · 7 comments

There’s a story of a proposed bike path in Los Angeles that met opposition from NBC Universal, which had a production studio in the area. Several Universal executives apparently feared the path would be used by aspiring screenwriters to toss unsolicited scripts into the studio parking lot.1

True or not, companies in the creative fields are typically wary of accepting unsolicited ideas. It’s not uncommon for successful projects to be met with claims of “idea theft” — recent examples in the news include Ugly Betty, Alien vs. Predator, and Premium Rush.

That list also includes the Syfy program Ghost Hunters, produced by Pilgrim Films in partnership with NBC Universal. Last May, in Montz v. Pilgrim Films & Television, the 9th Circuit reversed the district court’s decision to dismiss claims that the studio had taken the idea for the show from someone else without compensation. Now, the studios have asked the Supreme Court to reverse.

SCOTUSBlog highlighted the studio’s cert petition in Pilgrim Films & Television v. Montz (PDF) last Wednesday.

Ghost Hunters

This story begins in 1981, when parapsychologist Larry Montz came up with an idea for a TV show that followed paranormal investigators as they looked for evidence of paranormal activity in real-world locations. Montz and his publicist pitched the idea to several studios from 1996 to 2003, including NBC and the Sci-Fi channel. All the studios passed on the idea.

The Sci-Fi channel, however, eventually premiered Ghost Hunters, a TV show that followed a team of paranormal investigators to real-world locations looking for signs of ghosts. Montz sued the producers of Ghost Hunters in 2006, along with NBC Universal (which had partnered with the producers of the show), claiming that they had based the show on his idea.

Montz specifically claimed that he had pitched the idea to the producers under the condition that he would be compensated if they used it. By creating a show based on his idea without paying him, the studios breached an implied-in-fact contract with Montz.

The district court dismissed the state claims on the grounds that they were preempted by federal copyright law. On appeal, the 9th Circuit affirmed.2 But then the Circuit ordered a rehearing en banc. It reversed the lower court’s holding, finding that Montz’s implied-in-fact contract and breach of confidence claims were not preempted by the Copyright Act.

It is this decision that is being appealed to the Supreme Court.

Idea/Expression Distinction

Before looking at the details of copyright preemption, I think it’s worthwhile to take a look at one of the broader issues raised by this appeal — the idea-expression distinction.

Copyright protection extends not to physical objects, but to the immaterial aspects conveyed by those objects in the form of words, images, sound, etc. But the scope of copyright protection is limited even further. William Blackstone, describing copyright in his seminal Commentaries on the Laws of England (1765), distinguished between sentiment and language;  today we use the terms idea and expression to make the same distinction. Copyright gives authors exclusive rights in their expression, but the ideas conveyed in any given work are free to all.

The cert petition explains the importance of this distinction:

For more than a century, it has been settled law that “[n]o author may copyright his ideas.” This is, indeed, “[t]he most fundamental axiom of copyright law.” Even before the Copyright Act of 1976, therefore, only an author’s expression could be copyrighted: The “general rule of law” was “that the noblest of human productions” — including “ideas” — ”become, after voluntary communication to others, free as the air to common use.”

The Copyright Act of 1976 retained this longheld distinction between ideas and expression: Section 102 expressly declines to “extend [copyright protection] to any idea,” “regardless of the form in which it is … embodied in [a] work.” [Citations removed].

Since the Copyright Act of 1976, the Supreme Court has held that the idea-expression distinction has another important purpose: serving as one of copyright’s “built-in free speech safeguards.” Distinguishing between ideas and expression “strike[s] a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts while still protecting an author’s expression.”3

Federal Preemption of Copyright Claims

By the time the US Constitution was drafted, twelve of the thirteen colonial state governments had copyright laws.4 The Framers, specifically James Madison, gave the new federal Congress exclusive power to enact copyright laws primarily to ensure national unity. “The States cannot separately make effectual provision for” author’s rights, wrote Madison in the Federalist 43 about why the Copyright Clause was needed.

Since then, the federal government and the states shared the power to grant copyrights. In 1973, the Supreme Court noted, “the language of the Constitution neither explicitly precludes the States from granting copyrights nor grants such authority exclusively to the Federal Government.”5 This dual system of copyright was done away with, however, when Congress passed the Copyright Act of 1976.

Under the Act:

On and after January 1, 1978, all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright … are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State.6

Courts determine if a state cause of action is preempted by the Copyright Act by looking at whether the work in question is within the subject matter of copyright and whether the state claim protects rights equivalent to those protected by copyright. The state claim isn’t equivalent if it has an “extra element” — one that makes the claim qualitatively different from a copyright claim, changing the nature rather than the scope of the action.

Ideas are certainly not subject matter protected by copyright law; the question always comes down to whether a state claim contains the necessary “extra element” that would preclude it from preemption.

State claims that have been found by courts to be preempted by the Copyright Act include, to name a few, conversion, trespass to chattels, unfair competition, and tortious interference with business expectancy.7

But Circuit courts are split on cases like Montz. As the studios point out in their cert petition, the Second and Fourth Circuits would have dismissed Montz’s state law claims under their interpretation of the Copyright Act’s preemption provision.

Not so in California and the Ninth Circuit. For over 50 years, California courts have recognized “an implied contractual right to compensation when a writer submits material to a producer with the understanding that the writer will be paid if the producer uses the concept.”8 In 2004, the Ninth Circuit held that such claims are not preempted by the Copyright Act.9

Montz v. Pilgrim Films & Television

The decision in Montz reaffirmed what the Circuit judges saw as a long-standing protection of ideas under contract law when there is a “bilateral expectation” of compensation. This promise of payment, said the court, is the “extra element” that makes contractual claims “substantially different” from copyright claims.

The court also believes its decision to protect ideas in this fashion is good policy, considering the nature of the entertainment industry. “Without such legal protection,” it said, “potentially valuable creative sources would be left with very little protection in a dog-eat-dog business.”

Pilgrim Films & Television v. Montz

The studios argue that the Supreme Court should grant its petition because the Ninth Circuit incorrectly interpreted the scope of copyright preemption, the decision further deepens the previously mentioned circuit split on preemption, and the question presented is important to maintaining national unity in copyright law.

They first note the difficulty courts have had applying the “extra element” test in preemption cases. It provides little guidance to courts, and this case is a prime example:

The Ninth Circuit’s analysis began and ended with the fact that, under California law, Montz was required to allege a “promise” to pay for his ideas. But this analysis simply highlights the danger of the “extra element” approach: The “implied agreement of payment for use of a concept” is, at least formally, an extra element, but it does not render Montz’s claims qualitatively different from a copyright infringement claim. Rather, the core of Montz’s allegations is that the defendants copied his ideas and developed derivative works based on his screenplays, videos, and other materials–and the right to prevent them from doing so is protected, if at all, only under the Copyright Act.

The studios next argue that the circuit split on this issue is largely a result of the “extra element” test — the inconsistency of its application illustrates the challenges courts face. This is a particular concern, the studios argue lastly, since the goal of preemption is to ensure consistency and uniformity in copyright law.

The studios also counter the Ninth Circuit’s policy argument, saying that its decision would actually hurt more than help those looking to get their foot in the door of the entertainment industry:

[The decision] has the potential to frustrate the public interest in obtaining fresh ideas and scripts from previously unknown writers. Even before that decision, producers were “already extremely wary about accepting unsolicited idea submissions, leaving only the slightest crack in the door for an aspiring unknown writer to get through.” But to avoid potential liability, producers are now forced to “pull the door shut entirely, leaving unknown writers with even less bargaining power than they had before.” Because of “fear that [they] could unintentionally enter into an implied contract with the screenwriter,” studios have “limit[ed]” their “willingness … to consider unsolicited ideas or pitches.”

Will the Supreme Court grant the petition? Only time will tell. The Court grants only a tiny percentage of all petitions filed. The fact that the Court hasn’t dealt with an issue relating to the Copyright Act’s preemption provision raises the chances, as does the fact that there’s a Circuit split on this question. The petition is also likely to attract a lot of attention — both the MPAA and the major television networks filed amici briefs when the 9th Circuit heard the case.

Footnotes

  1. Steve Hymon and Andrew Blankstein, Studio poses obstacle to riverfront bike path, LA Times, Feb 27, 2008. [↩]
  2. Montz v. Pilgrim Films & Television, 606 F.3d 1153 (2010). [↩]
  3. Eldred v. Ashcroft, 537 US 186, 219 (2003), quoting Harper & Row v. Nation Enterprises, 471 US 539, 556 (1985). [↩]
  4. William Patry, Copyright Law and Practice, chapter 1 (BNA 1994). [↩]
  5. Goldstein v. California, 412 US 546, 560. [↩]
  6. 17 USC § 301(a). [↩]
  7. See for example, Globeranger Corp v. Software AG, No. 3:11-CV-0403-B (ND Tex, Aug. 15, 2011); Two Palms Software v. Worldwide Freight Managment, No. 4:10-CV-1045 (ED Miss, Feb. 18, 2011); 78th Infantry Division, WWII Living History Association v. Oprendek, No. 11-165 (RBK/JS) (D.NJ, Aug. 4, 2011). [↩]
  8. Desny v. Wilder, 299 P.2d 257 (Cali. 1956). [↩]
  9. Grosso v. Miramax Film Corp., 383 F.3d 965. [↩]
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Friday’s Endnotes – 08/26/11

August 26, 2011 · · 5 comments

Consumption is a Human Right? — Another great post from Faza, taking on the weakness of the “access to culture” argument. “As human rights go, access to culture is a rather weak one. I mean, seriously, whatever happened to food, housing and healthcare? Compared to a lack of any of those, not being able to listen to the new album from [X] is a minor tickle. So why aren’t we getting any of those for free?”

Bill would help combat copyright offenders on the Internet — The Washington Post weighs in on the PROTECT IP Act. “[It] takes pains to protect Internet service providers, search engines and others that may have done business with a rogue site … But there is a need for a legal tool that stops those who persistently leech off of the innovations of others.”

Ontario Court of Appeal Rules In Tucows v. Renner: Domain Names Are Personal Property — Before this, no Canadian appellate court had reached the issue. Matt Lonsdale of IP Osgoode examines the decision, which aligns Canada with the dominant view that domain names can be treated as property, a view shared by US courts.

HSI agents arrest website operator for illegally streaming copyrighted sporting events — ICE announced it had arrested the operator of one of the sites whose domain names had been seized as part of Operation in Our Sites. The owner of HQ-Streams.com and HQ-Streams.net has been charged with one count of criminal copyright infringement for allegedly streaming live sporting events through the website.

Hollywood Buzz in Cleveland, Ohio — Film production creates jobs and boosts local economies. Recent local news channels highlighted these positive effects in Cleveland, currently home for production of The Avengers and I, Alex Cross.

The Jobs Program — Rob Levine weighs in on Steve Jobs resignation and the success of Apple despite the company doing the opposite of what technology pundits consistently preach.

Petition of the Day: Pilgrim Films & Television v. Montz — SCOTUSBlog highlights this petition to the Supreme Court from Pilgrim and NBCUniversal, stemming from a dispute between them and a parapsychologist, who alleged the idea for the Syfy program Ghost Hunters was taken from him without compensation. The 9th Circuit ruled in favor of him; Pilgrim appeals to the Supreme Court on the basis that such a claim should be pre-empted by the Copyright Act.

Bestselling Self-Published Author Signs Deal with Simon & Schuster — John Locke, who became popular in the blogosphere after selling millions of copies of his self-released books, becomes the latest in the line of such authors to join forces with a traditional publisher.

Crowdfunding Concerns — It’s all fun and games till someone gets poked by the IRS. “Crowdfunding”, or micro-patronage, is becoming a popular alternative for raising money for a variety of creative endeavors. However, as Leslie Burns explains, creators interested in crowdfunding a project need to be careful to consider tax considerations and other legal issues before beginning.

The Potential Cost of PROTECT IP: Our Take — The MPAA comments on the Congressional Budget Office’s $47 million cost estimate for implementing the proposed legislation.

The Copyright Alert System — A couple of recent pieces exploring July’s announcement of an agreement between US ISPs and the music and film industry to fight online piracy. Songwriters Guild of America president Rick Carnes discusses the agreement at the Arts+Labs blog, while the Kluwer Copyright Blog looks at it in the context of similar international and European measures.

Book Review: Robert Levine, Free Ride — The Cynical Musician reviews Levine’s Free Ride. “Levine’s single biggest contribution to the debate on the future of online media is that he manages to demonstrate, very clearly, that rather than a question of morality or ideology, it is one of economics.”

Stop Criminalizing Our Kids: Google Drugs Pays Record $500 Million Fine to Avoid Jail … For Now — Chris Castle discusses the record forfeiture of Google’s profits in connection with ads for illegal importation of prescription drugs. The settlement agreement between the Department of Justice and Google is available here.

Documenting how a bill becomes a law — Many of the documents produced during the legislative process are available online, but compilations of a bill’s entire legislative history are not as readily available, meaning lawyers and researchers have to do a lot of legwork to piece together the reports, hearings, committee prints, and draft bills that shed light on the intent of a law. The US Department of Justice has just released a collection of compiled legislative histories for a number of landmark bills that its staff uses internally. Kudos to the DOJ for making this valuable resource available to the public.

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Friday’s Endnotes – 07/08/11

July 08, 2011 · · Comments Off

Creative America — Creative America is a new grassroots organization “uniting the entertainment community and others against content theft.” Along with their website, you can find the group on Facebook and Twitter. Chris Dodd of the MPAA remarks:

Most of the over 2 million Americans whose jobs are supported by the motion picture industry aren’t marquee stars or studio executives. They’re the people whose names you see in the closing credits, with titles like makeup artist, set dresser, prop maker, sound effects editor, visual effects artist, rigging electrician, costumer, and driver. They’re the teenagers working their first job taking tickets at the local movie theatre or theme park. And they’re the people who work for local retailers, caterers, dry cleaners, florists, hardware and lumber suppliers, transportation companies, and thousands of other small businesses that support our industry.

When someone steals a movie and profits from that theft, these are the people they’re robbing from. These are the people who will have less to feed their families, to care for their parents, to save for retirement, to put their kids through school. And now, these are the people whose voices you’re about to hear.

Creative America, a new and unprecedented partnership among studios, networks, unions, and guilds, will give the men and women of our community a new way to speak out in the fight against content theft. This grassroots campaign will help everyone across this country understand that content theft isn’t a victimless crime – it hurts all of us.

Major ISPs agree to “six strikes” copyright enforcement plan — Ars Technica reports on the voluntary agreement announced this week signed by major ISPs. The RIAA released a statement in support of the new Copyright Alert System, quoting statements of support from many other trade associations. Also in support: the White House. James Gannon offers his take, noting that recent studies show this type of system is the most effective way of addressing online infringement to date.

Blindsided! Will U.S. Supreme Court Patent Ruling on Willful Blindness Determine Standard for Red-Flag Knowledge Under DMCA? — Naomi Jane Gray reports on a breaking development in the Viacom v. YouTube appeal currently awaiting oral argument in the Second Circuit. Great analysis of the issues, but as Gray concludes, it’s anyone’s guess how the Second Circuit will ultimately respond to Viacom’s argument.

Fighting the Good Fight — Leslie Burns reminds artists, creators, and those who recognize the importance of copyright in society not to stoop to the level of opponents, who often hide behind anonymity, resort to name-calling, and engage in even more deplorable tactics when facts, reason, and good policy don’t support their position.

Cherish the Book Publishers – You’ll Miss Them When They’re Gone (H/T Lee Goldberg) — Eric Felten reports on the e-book gold rush currently underway. The lack of gatekeepers for self-publishing writers seems attractive, but what is the public losing out on?

A friend, years ago, worked at a major New York publishing house tending the slush pile. It was her job to peruse the unsolicited manuscripts for anything that might be a hidden gem, and to send the dreaded form letters to the rest. She took no pleasure in sending rejections and was eager to find something, anything, worthy in the pile. She dreamed of discovering the great undiscovered talent—oh, what a story (and a career) it would make! Alas, in two years of sifting she found only one marginally plausible submission she could recommend to her bosses.

The e-book era promises us all the pleasure of wading through the slush pile ourselves, even as the pile grows exponentially.

Extradition For Pirates? Seized Domain Admins Call It Quits — TorrentFreak reports on pirate site operators voluntarily shutting down in the wake of ICE’s Operation in Our Sites. “The risks outweigh the pros of running a site like Re1ease now, then when we heard about TVShack, we thought enough is enough, ” said one.

On full content RSS (not excerpt only), spam blogs and content thieves — Bloggers, do you offer full posts or excerpts in your RSS feed? Hillary DePiano would like to hear your thoughts on the subject.

How to Fix Horror (H/T Alex Epstein) — If you’re a fan of horror movies like I am, you might be interested in author Jason Zinoman’s ongoing series of provocative essays on the subject at Slate. Up so far: “Stop trying to be so respectable”, “Kill the back story”, and “Embrace the remake”.

Finally, the distinction between copyright and plagiarism has recently been a (somewhat) hot topic online. Here’s a couple of stories from the past week on the subject:

The Unoriginal Sin: Differences Between Plagiarism and Copyright Infringement — Attorney and writer Mark Fowler takes a comprehensive look at both the legal and descriptive differences between the two, touching also on newer developments likeMurphy v. Millennium Radio Group.

The Role of Copyright in Fighting Plagiarism — PlagiarismToday’s Jonathan Bailey takes a different approach to this issue: he looks at the overlap between copyright infringement and plagiarism rather than the differences and discusses how the legal tools of copyright are used to police the largely ethical issue of plagiarism.

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Friday’s Endnotes – 05/13/11

May 13, 2011 · · 2 comments

Content and Technology is not an Either/or Choice — The Copyright Alliance disputes the framing of efforts to better protect IP rights as a choice betweencopyright and innovation. “The copyright community and the technology sector drive and sustain each other.  They each contribute disproportionately to the wealth of this nation, and both sectors depend on a vibrant, legal marketplace of digital content.”

Celebrating World Press Freedom Day, and What the First Amendment Means to the MPAA — The Motion Picture Association of America’s new chairman Chris Dodd reflects on the role of the organization in defending free speech rights for filmmakers, a theme I discussed on this site recently. “Many people don’t realize that the MPAA itself was born as an answer to government censorship.  Before the establishment of the MPAA’s Classifications and Rating Administration, early filmmakers battled a mishmash of local, state and federal boards that mandated strict ‘moral standards’ that often destroyed the artistic integrity of films or kept them from being shown at all.”

Limewire Case Settles, Mid-Trial, For $105 Million — Thursday evening brought news that the file-sharing service reached a settlement agreement with the record labels that had brought suit against it before the close of the first week of the jury trial to determine damages. Q: How much of the settlement is going to the artists? A: More than they got from Limewire.

MPAA v. Zediva is Shaping up to be Quite the Legal Showdown — Remember Zediva, the video-on-demand startup that streams movies online from actual DVDs in remote DVD players to avoid licensing fees? They were, of course, sued by film studios. PaidContent reports that both sides seem to be placing a high priority on this lawsuit, considering the high-power lawyers being called on for litigation.

YouTube boosts movie rentals with over 3,000 Hollywood titles — The video-sharing site joins online movie providers like iTunes and Amazon, allowing users to watch films for a couple of bucks. The titles include classics like Goodfellas and newer releases like Inception.

Library of Congress and Sony create the National Jukebox — The record label has made thousands of previously unavailable historical recordings available to the general public through a joint effort with the Library of Congress. According to the LA Times, “The collaboration between Sony and the Library of Congress is intended to keep any cost to taxpayers to a minimum and to make the streaming files available quickly. In return, Sony will receive data on which recordings are streamed most frequently to help determine which may have commercial potential.” Win-win-win.

Interview: The Art of Video Games at the Smithsonian — Boing Boing contributor Rob Beschizza interviews the organizer and exhibition curator of the Smithsonian’s upcoming Art of Video Games exhibition. “We want to show people that video games are more than they might appear on the surface, that they can have incredible depth, beauty, and emotion.”

4 Predictions for Copyright Reform Attempt 4 — With the recent Canadian elections completed, it is likely that the new government will resume the efforts to reform the nation’s copyright law. Attorney James Gannon offers his predictions on what changes to expect this time around in light of recent developments in copyright law and digital technologies.

The E-Book Gold Rush — Author Lee Goldberg injects some reality into the recent success stories of self-publishing authors in the digital world. Yes, authors can find new opportunities with e-books and shouldn’t ignore their potential. But the fact remains that a new system that makes it easier for an author to spread her work makes it easier for every author to spread her work — bringing us back to square one in the amount of time and effort needed to build an audience.

Google Books and the Rule of Law— Howard Knopf pens this op-ed about the broader rule of law and international law implications of the Google Books project. “The Google Books project has frequently been likened to a reincarnation of the Library of Alexandria in a digital, fireproof format—because it could include virtually all the world’s important books in an instantly accessible database. However, what has been shown to be technically achievable and widely praised is far from clearly legally viable. There is considerable concern from those who care about core values in copyright and international law, and indeed the rule of law itself. Nobody is above the law—not even Google. Class actions were never intended to usurp legislation and treaties.”

GAO Still Stonewalling on Sources for “Stealing is Good” Report — Chris Castle documents his efforts requesting information from the Government Accountability Office regarding the unnamed experts who advanced the idea of positive effects of piracy in last year’s report on “Observations on Efforts to Quantify the Economic Effects of Counterfeit and Pirated Goods.”

Cheezburger Networks of sites suck — A very short blog post from photographer Terry Border at Bent Objects, but a great excuse for me to point people to his work. Border uses everyday objects to create whimsical scenes — circus peanuts performing in a circus, for example. Here, he complains about the popular image aggregator sites which misappropriate photos from the web, routinely without regard to attributing the original authors. Says Border, “I’ve heard a couple of comments that blame the submitters to their sites, and not Cheezburger themselves. Well, who put together the way their sites work? They can try to wash their hands of wrong-doing, but it’s their system, and they know the end result will be lots of anonymous images thrown into the furnace of their giant money making machine.” Hm, sounds familiar.

Finally, from the academic world, I recommend the following:

Copyright, Complexity and Cultural Diversity (via Legal Theory Blog) — In this forthcoming Chapter, available at SSRN, Michal Shur-Ofry-

“challenges the prevailing view pertaining to the connection between broad copyright protection and lack of cultural diversity. Prominent scholarship in the field of copyright links the lack of diversity in cultural consumption to the broad copyright protection afforded to cultural works. Copyright, so goes the argument, constitutes a major basis for the activities of mass media corporations, which flood our cultural sphere with formulaic cultural products, whose sole purpose is to appeal to the taste of the masses. The limitation of copyright, so the argument proceeds, would diminish the cultural domination of mass media products, and promote audience exposure to ‘other’, more diverse works.

“The Chapter questions the importance attributed to copyright law in this context. Based on complexity and network theory dealing with the evolution of popularity and the self organization of complex systems, it illuminates the fact that the inclination towards popular cultural works is an intrinsic phenomenon of social networks, and does not depend upon copyright protection. It continues to analyze recent ‘long tail’ data, which indicates that positive changes in the degree of cultural diversity occur even under a broad copyright regime. In light of these observations, the Chapter attempts to offer a broader perspective on diverse cultural consumption, relying on socio-cultural research. This literature indicates that cultural diversity is a complex and multi-faceted issue. The non-linear nature also implies that the level of diversity cannot be easily calibrated by changing the scope of copyright protection. Rather, the attempt to promote diverse cultural consumption must address a series of difficult questions which are outside the scope of copyright law.”

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Friday’s Endnotes – 5/06/11

May 06, 2011 · · 2 comments

As Trial Begins, Early Results Don’t Look Good for Limewire — This week, record labels and the P2P software company went in front of the jury. Limewire had already been found liable for copyright infringement last year; the trial is focused solely on the amount of damages it is liable for. Courthouse News Service offers some more insight into the first day of the trial. The lawsuit has already spawned two opinions on novel issues regarding copyright’s statutory damages — Loeb & Loeb provides background on them to bring you up to speed.

Star Wars and Transformers — Faza at The Cynical Musician has an interesting discussion of different approaches to merchandising in movies and how it may apply to the music biz.

Digital Radio Paid Musicians $36 Million More Than Paid Subscriptions Last Year — The RIAA released the 2010 numbers for its member labels this week. Among the insights is the fact that digital radio services like Pandora and Sirius XM are far outperforming streaming services like MOG and Spotify.

MPAA Blog — The Motion Picture Association of America, under the new leadership of former Senator Chris Dodd, has recently begun its own blog. Says Dodd in the inaugural post: “I found myself wondering what DeMille, Goldwyn, Louis B. Mayer, Jesse Lasky and Adolph Zukor would have said if they could have seen Avatar—in a theater, in 3D.  What an incredible journey: We’ve come all the way from The Squaw Man to the blue N’avi in less than a hundred years.  That century has been marked—and, in many ways, defined—by the giants of our industry, their incredible creative visions, and their mind-boggling technological innovations.  Movies have come to shape the American psyche—and dominate the attention of consumers—like nothing else.” Check it out — and I’m not just saying that because this site made their blogroll.

Is the Dedicated Songwriter Going Extinct? — “Disruption invariably produces winners and losers, and stand-alone songwriters may just become the losers. That was the sentiment among several top composers at the Rethink Music Conference in Boston” last week, “most of whom were great at describing the problem but lost when it came to generating solutions,” reports Digital Music News.

Wrong Assumptions and Netflix — Ethan Kaplan, former SVP of emerging technology at Warner Music Group talks about why the Netflix business model wouldn’t necessarily work for music. An interesting discussion about the differences between how we experience different media.

That’s it for this week. Keep the great comments coming, and if you have any stories you want to bring to my attention, feel free to contact me.

I leave you from this quote from the Supreme Court made over a century and a half ago: “Whilst the remuneration of genius and useful ingenuity is a duty incumbent upon the public, the rights and welfare of the community must be fairly dealt with and effectually guarded. Considerations of individual emolument can never be permitted to operate to the injury of these. But, whilst inventors are bound to diligence and fairness in their dealings with the public, with reference to their discoveries on the other hand, they are by obligations equally strong entitled to protection against frauds or wrongs practiced to pirate from them the results of thought and labor, in which nearly a lifetime may have been exhausted; the fruits of more than the viginti annorum lucubrationes, which fruits the public are ultimately to gather.”1

Footnotes

  1. Kendall v. Winsor, 62 US 322, 329 (1859). [↩]
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