Criminal Copyright Infringement, Charitable

Michael Geist brought to the Ippers’ attention a story about a record store owner in Ottawa, David Nolan, who pled guilty to copyright infringement for holding unauthorized copies of albums.  As the Ottawa Citizen reports, Nolan specializes in rare and hard to find recordings and many of the albums confiscated by the Royal Canadian Mounted Police were in fact not infringing.  The deal reached between Nolan and the Canadian government sets the number of infringing copies at 100.

The general tone of the comments on the Ottawa Citizen and Michael Geist’s blog is one of disdain for this type of copyright enforcement, disapproval for police resources being wasted on searching through a large record store for a handful of potentially infringing copies.

This Ipper, however, was struck more by something else.  The punishment in the deal between Nolan and the government is that Nolan must make a $1000 donation to the charity of his choice within three months.  Compare this to the amounts paid in the US for civil copyright infringement – the $1.92million judgment against Jammie Thomas or the $675,000 judgment in the Tenenbaum case.  Or even compare the $1000 charitable donation punishment to the punishments outlined for criminal copyright infringement in the US – up to a year in prison or a fine up to $5000 for infringing works for the purpose of commercial advantage.  (17 USC § 506 and 18 USC § 2319.)  The penalty is higher if the infringement involves reproduction or distribution.

The mounted police raiding a record shop to find a few infringing items might still make people uneasy, but this Ipper thinks as far as punishments for copyright infringement, this deal is the best she’s seen.  And, as one commenter on the Ottawa Citizen wrote, Nolan can always choose the EFF as his charity.

Nina Paley’s Numbers: CC Licensing for Profit

Some of our readers may remember a post about a year ago about a cartoonist named Nina Paley and her copyright difficulties.

A short recap: Nina produced a film based on the Indian tale Ramayana intertwined with Annette Hanshaw’s jazz music. Although the sound recordings Nina used were in the public domain, the copyrights on the underlying musical compositions were not. Nina did not get permission to use the tunes and thus infringed the copyrights. Her settlement with the various rightsholders had a step setup, the more she sold, the more she had to pay to the rightsholders. Deciding that releasing her movie in the traditional way wouldn’t make her any money because most of the money would go to the rightsholders, Nina decided to release her film under a Creative Commons Attribution ShareAlike license.

The Wall Street Journal recently ran an article describing the profits Nina has made in the nine months since releasing her film, Sita Sings the Blues, under CC-BY-SA. The short article lists each source of revenue for Nina’s $55,000 total. It generally appears to be saying that CC licensing can work for smaller, professional artists, like Nina Paley, as well as the big guys that are always talked about, such as Nine Inch Nails.

There are a few more pieces of information, which the article does not cover, that give a better view of how successful CC licensing has been for Nina.

In the presentation on which the WJS is reporting, Nina reports that it cost her $80,000 to make the film, $200,000 if you include her cost of living during this time. Compared to the $55,000 she’s taken in so far, it seems like the CC licensing really isn’t working that well for her. However, when Nina approached independent distributors prior to releasing the film, she was told she would probably make only $10-$25,000, $50,000 absolute tops ‘in her wildest dreams.’ Now, comparing what she has made so far to what the distributors expected her to make total, she is doing pretty well.

A better tally of how she has done would include how the Sita copyright issue and subsequent CC licensing have increased Nina’s income from her other works by increasing her visibility; how much she makes from speaking engagements (which she says are her most lucrative work); and how much more she would have paid out under her settlement agreement had she released the film in a more traditional manner. Since all of these things only add to what she has already made, it’s clear that releasing Sita under a Creative Commons license was a good choice for Nina.

For more information on all the different ways Nina is capitalizing on CC-licensed Sita Sings the Blues, see: http://blog.ninapaley.com/category/sita-sings-the-blues/.

Better than Sliced Bread – Google Scholar Enters Our Lives

For those who haven’t seen it yet, Google recently launched Google Scholar.  This is huge for a number of reasons.

Google Scholar is a research search tool designed specifically for scholarly research, including legal research.  Although it does not offer everything that the giant, expensive, legal search providers have, it looks like it has a lot of very useful tools.  Check out the “How Cited” links (example), the reporter pagation in the left hand margin (example), and, for your jurisdiction specific searches, the advanced search options.

In addition to being a very useful legal tool, Google Scholar is worth attention here because it involves a number of intellectual property issues.  In the United States, case law is part of the public domain.  The inclusion of court opinions therefore poses no IP problems. However, Google Scholar also includes access to journal articles, books and such copyrighted materials.

Google Scholar seems to balance the access to these materials and protection of the copyright in a few different ways.  For some documents, Google Scholar provides a link to an outside paid service such as HeinOnline, JSTOR and even Lexis and Westlaw (links are to examples.)  These services provide you a snippet of the item and offer you ways to view the entire document.  Local libraries may provide free access to some of these databases and Google Scholar has a mechanism to help users find libraries with access.  Basically, in these cases, Google has skirted the potential copyright issues by linking to already existing services.  These services have already worked out the copyright licensing logistics for their resources.  Google just points the users to the resources and the service takes it from there.

For full text articles are also available from non-paid sites.  It appears that in these cases the articles are already available online from journal sites, publishers, and university sites (links are to examples).  Google again just points the users to the article.  In many cases, these links are to pdfs, so the user may not realize what site is providing the materials.  Some sites may not like this, or may have other reasons for desiring that their material not be included in the Google Scholar searches.  Google offers them the option of having their materials removed.

The biggest area of copyright contention in which Google Scholar seems to be involved is with regards to materials not accessible via any third party site, either paid or free.  These materials, when available, are available through Google Books.  While Google is still working through the copyright muck there, Google Scholar has done a good job of utilizing resources that are already available.

Google Scholar may be a new competitor for some of the expensive, traditional, legal research tools, but at its core it is really just a focused version of what Google does best, search.  Luckily for all the users out there, most of the copyright issues surrounding searching and linking have already been worked out.

Small Businesses Need to Know about IP: An Example

Last week there was a really big football game on tv.  American football.  A match between two long-standing rivals, but with an extra twist this year.  The good team’s traitor star-player left and through some manipulative maneuvering, made his way to the evil team.  It was the first time the traitor had ever faced his old team.  It was a brutal game.  The Ippers, one of whom you can tell was quite invested in this match-up, had to venture out into the land of local pubs in order to watch the game.  (It was only available on cable here.)  While out at the pub, they encountered a little trademark issue.

The bartender was sampling the wares of a local gentleman who produces and sells body oils.  She explained he’s a regular customer and often comes in to share new additions to the product line.  The gentleman carried two large, black zippered cases filled with vials.  The vials were filled with liquids of different colors, each with a white label identifying the scent inside. 

While the bartender was busy sniffing various bottles, the gentleman handed out a yellow flyer with information about his oils.  The company’s clever and catchy name was displayed in large type across the top, followed by “Body Oils for men and women.”  At the bottom, the prices, ranging from $5.00 to $35.00 depending on the size of the bottles.  In the middle was a list of the hundred-some scents he offered.

Some of the scent names on the list were merely descriptive: Red Rasberry [sic], Coco Mango, Kiwi Strawberry.  Others were suggestive, Golden Goddess, T-Shirt and Panties, Walk Like She Taken.  And then, there were the problem ones.  Two different kinds of problems.  First, well-known brands of perfume and cologne: Juicy Couture, Dolce & Gabbana, Cool Water.  Then, names of famous people who probably have nothing to do with this gentleman’s products: Barack Obama and Michelle Obama.  And the names of plenty of people who have their own perfume and cologne products that bear their names.

This gentleman is a prime example of someone who needs intellectual property help.  Not only has he opened himself up to a huge amount of liability for trademark infringement, passing off and potentially right of publicity, the gentleman also has plenty of his own intellectual property to protect.  He has his own company name, many very creative names on his scents and possibly the scents themselves.  [Protection of scents is highly debated in the world of IP, see IP Review for a more in-depth discussion of this.]

Unfortunately, there are a lot of people out there who don’t recognize the rights they might have or the rights others do have.  They do not know that attorneys are there to help them with these types of issues, and they won’t find out.  When they do meet with an attorney, it’ll be one representing those big companies whose trademarks are being infringed.  Hopefully, it’s only in the form of a cease and desist letter.

 

goldenrail would like to thank Cathy Gellis for her assistance with this post.

Cover Tunes, More Fun and Safer!

Cover songs can be really fun, especially when they’re done in such a different way than the original that you notice something new about the music.  The groups Vitamin String Quartet and Apocalyptica are famous for these types of covers, redoing heavy metal and pop music in orchestra styles.

Lately, this Ipper has discovered a different type of cover music in a similar vain.  A lone viola player covering currently popular hip hop tunes.  Oddly enough, that’s a combination that delights this particular listener.  However, this cover artist does things a little differently than the ones mentioned above.  Instead of just adapting the tunes for the viola and playing them, he plays along with the actual hip hop songs.  This is either more costly or more dangerous.

It is more costly if the artist has the permission and necessary licenses to release tracks where he plays along with the original songs.  It is more dangerous if he does not have permission.  This has to do with the different rights in a sound recording of a song as compared with the underlying composition itself.

The underlying composition, the only thing used by groups like Apocalyptica, has one copyright.  That’s it, one.  The copyright in the music itself.  That copyright might be shared by multiple writers, but that doesn’t matter.  To use the music, a person only needs to contact the song’s publisher and make an arrangement to use the work.

But to use the whole entire recording of a song requires a lot more work and a lot more money.  The recording involves a lot more people with rights.  It’s no longer just the publisher.  It’s also the performing artist, the producer, the record label and possibly other publishers depending on who has contributed to the final version of the song that gets released.  Basically, it’s a big, costly, mess.  And that’s if the user gets permission!

Of course, if the user doesn’t get permission, he doesn’t have to deal with that whole mess.  Instead, he is liable to all those people for infringing their different rights, copyrights, mechanical rights, performance rights.  If the user did a cover of only the musical composition itself, without permission, then he is only liable to the publisher.  Either way, the user is better off just covering the tune and not playing along with the original recording. 

(And one humble opinion here is that his music would actually be much better if it were just him and the viola, without the background noise of the original works.)

 

goldenrail would like to thank Justen Barks for his assistance with this post. a favorite of the viola tunes.

Photo credit: Blinged out Viola cc-by-sa goldenrail used Pegs of a viola cc-by-sa by Lemondedo, available at http://commons.wikimedia.org/wiki/File:Pegs_of_viola.JPG

But How do I Know if It’s Real?

Copyright infringement of music is rampant in Nigeria.  It may, in fact, be one of the few places where referring to infringement as piracy is truly accurate.  Huge optical disc plants churn out hundreds of thousands of unauthorized copies of cds.  The markets, the street corners, even the shops are filled with these infringing albums, to the point that finding a legitimate album is incredibly difficult.

Real or not?

Artists, producers and the Nigerian Copyright Commission (NCC) have tried a number of methods to mark legitimate albums as such.  Unfortunately, it seems most of these methods are copied by the infringers as soon as they’re developed. 

There’s the Hologram Scheme (part of the Strategic Action Against Piracy program) through which optical disc plants apply for the right to use special tools to place a special holograph on legitimate albums.  That didn’t work because optical disc plants who received permission and had arrangements with artists to manufacture albums would just manufacture, and mark, more albums than their agreement allowed.  The plants would not pay the artists for these extra albums.   Thus, the plants released thousands of infringing albums with the official markings into the market.

Then there’s the various markings of their own design that publishers, musicians and producers have put on their album envelopes in attempt to mark them as legitimate -symbols of the record label or perhaps the producer’s mark.  Infringers easily reproduce the album envelopes, special markings and all, at local print shops.  Bad quality isn’t necessarily an indication of an infringing copy, and good quality isn’t necessarily an indication of a legitimate copy.  That all depends on the particular print house used.  Quality ranges widely and it’s not unusual to find infringing products in packaging of higher quality than the legitimate versions.

Some artists also tried using special seals on their cd envelopes or placing the envelopes inside specially marked clear plastic sleeves.  But just like the envelopes themselves, the seals can be easily reproduced.  The clear plastic sleeves are supposed to provide some indication of quality for the album inside, but they are resalable.  There is no guarantee that what the buyer gets is what was put in the envelope and sleeve originally.

In short, although many attempts have been made, it seems Nigerian artists have yet to find a successful way to indicate to consumers that the album they are buying is legitimate.  With no sure way to know, where’s the incentive to try?  The artists and government urge consumers only to buy non-infringing works, but no one can tell them how to do it.

As a side note: This Ipper recalls attempting to purchase legitimate albums by only looking at the high end, expat-geared shops.  She’s not sure that worked, but still doesn’t know of any better options.  Suggestions are very welcome!

Meghan McCain Breaking Copyright Law?

Chances are, if you’ve ever been on any instant messaging service, you’ve seen somebody put up some lyrics as an away message or status message.  It’s there a for awhile, a few contacts see it, and that’s that.  But what about when someone tweets 140 characters worth of song lyrics?

Let’s find an example from which we can work.  (clicking, scrolling, more clicking)  Ah yes, here we go, the perfect example.  A tweet from Meghan McCain earlier today.  Nearly the entire second verse from Queen’s “We Will Rock You.”  No quotes, no attribution.

The Copyright Rights

We already know the song is copyrighted.  Since we are dealing with song lyrics, it is most likely that the rights to the words are held by various collecting societies, each holding a license to the rights in their respective territories.  The question then is whether or not this 138 character quote of the lyrics constitutes infringement. 

To answer this question, we turn to Section 106 of the US Copyright Act.  [The rights granted to copyright owners in this section of the Act are very similar to rights bestowed by other copyright acts around the world thanks to our international treaties.]  The rights granted include: the right to make copies, the right to prepare derivative works, the right to publicly display or perform the work.

Copied

The song is so popular that there is no question as to whether or not the work was copied.  Despite the lack of quotation marks, most people would recognize the passage and know that Meghan McCain was not the originator of it.  The work was copied, typed out or cut and pasted into the Twitter box.

Displayed

The copied portion was then publicly displayed via Twitter.  It’d be hard to argue that this is not a public display of the lyrics.  Tweets from tweeters who do not protect their tweets are available on the web.  In addition to this, Ms. McCain has over 50,000 followers.   Even if her tweets were protected, 50,000 people, most of who do not know her personally, could hardly count as anything other than public.

Infringement

So one of the activities to which the copyright holder was given exclusive rights was done by someone without permission.  However, that does not mean that the tweet was infringing.  In the US, we need to see if the tweet might qualify as fair use.  In the UK, and other jurisdictions based on UK law, we need to see if the tweet includes a ‘substantial part’ of the original work.

Substantial Part?

Going first to the question of whether the tweet is a substantial part of “We Will Rock You.”  This Ipper (and a friendly tweeting Kat) happens to think it is.  “We Will Rock You is a very short song, clocking in at under two minutes.  It has only three verses and a two-line chorus.  The tweet contained almost the entirety of one verse, or somewhere between a third and a forth of the song.  Looking at it in a frame more apt to Twitter, the song has 666 characters, including the spaces.  The song contained 138 of these 666 characters, or roughly 20%.  That’s a pretty good sized chunk.  Adding into this equation that the copied section is highly recognizable, the tweet copies a substantial part of the original work.  Of course, as my copyright professor always liked to say, “reasonable people can disagree,” so you, or a judge, may find differently.

Fair Use

Now, about that fair use.  This Ipper happens to think this tweet would qualify as fair use in the US.  Although, as discussed above, it takes a substantial part of the work and the original work is a published commercial work, there is no apparent market harm and Ms. McCain is not using the tweet for any commercial purpose.  Additionally, the usual commercial arguments used for internet infringers is absence.  It also does not appear that  Twitter, unlike YouTube for example, is making any money from this tweet.  There are no ads on the side of the page.  Twitter does not get more money for each person that views the tweet.

Summary

In the US, a song-quoting tweet is probably protected by fair use and thus not an infringement.  However, in other jurisdictions, most of which do not have fair use, tweeting a substantial portion of a song’s lyrics is very likely copyright infringement.   Unfortunately, it doesn’t matter if the tweeter lives and tweets in the US, the tweet can infringe anywhere it is displayed, i.e. anywhere it’s seen. 

I doubt Meghan McCain intended any harm in her tweet.  Most likely she’s a fan of the song, it was in her head, and she wanted to share it.  Perhaps next time she should quote just a little less, not enough to be a substantial part.  Maybe also throw in some quotation marks for good measure; plagiarism isn’t much better than copyright infringement.

Have Your Cake and Infringement Too

Today, this Ipper ventured forth into the restaurant world surrounding her San Francisco workplace.  In a corner, French-themed cafe, she spotted this beautiful cake design.

Which, likely not by chance, happens to look a lot like a certain famous Disney princess.  From the brown hair and the full yellow dress with matching gloves and down to the rose in her hand.  There’s hardly a part of this cake that doesn’t look like Belle.

Now, Disney is not exactly lenient when it comes to letting others use the company’s intellectual property, so is this cake a risk?

Off hand, I’d say yes, but there’s a few things we would need to know.  It is possible that some sort of agreement exists between Disney and the bakery to make Belle cakes.  Though it’s unlikely a small bakery has a deal directly with Disney, it is possible that Disney sells Belle cake sets, complete with a license to use and display and the resulting Belle.  A quick search online shows that such cake kits do exist.  However, the Disney kits all appear to feature a plastic cake topper, not a plastic Barbie-like doll.

So let’s assume there is no agreement.  This cake, like so many of these, is probably infringing.  It is an adaptation of Disney’s drawings (and statutes, and everything else they put out in Belle form).  In this case, it’s highly unlikely that the cake would qualify as fair use, especially since Disney is in the market of producing Belle cake kits.  A cake designed like a famous cartoon seems very similar to character costumes of children’s cartoon stars.  If the corporations that own the characters are already going after entertainers for unlicensed costumes, why wouldn’t they go after bakers for cakes?

A Slight Shift

Regular Ip’s What’s Up readers know that this blog has been searching for its proper place in the blogosphere ever since its inception nearly a year ago.  The Ipper’s have bounced around on many topics, from updates on new US laws and cases to happenings in Nigeria to software licenses.  Though we look back on all these posts with fondness, we have also come to realize that our past topic choices have not always been the best use of our resources or our readers’ time.

There are many, many good Intellectual Property blogs out there, as attested to by our massive (and hopefully helpfully organized) side bar.  Some of our topics fit better, and are usually covered, on other blogs.  If we notice something that doesn’t seem to be getting the type of coverage we think it deserves, we will still post about it here.  But, for the most part, we are shifting our focus to be more in-line with our sub-title text.  Ip’s What’s Up will first and foremost be “A Place Where IP and Your Daily Life Meet.”

In the future, look for more post about interesting IP sightings in everyday life, both in the three-dimensional world and online.  And remember, you can always check out our sidebar to see the most recent updates on a myriad of IP-related topics.

Santa Cruz, Japan?

One thing the Ippers like to do on this blog is discuss strange IP sightings, things they’ve seen that look like they could include an intellectual property issue. This past weekend the Ippers had a splendid one!

Ipper dtrizzle and his friends take an annual camping trip to Big Basin Park, and for the past two years, goldenrail has been fortunate enough to go along. This weekend excursion always includes a Saturday afternoon spent at the historical Santa Cruz Boardwalk. In addition to the amusement park rides, sandy beach and cotton candy vendors, the Boardwalk features a large arcade. A large arcade with one of dtrizzle’s favorite games, Street Fighter II.

While dtrizzle was busy proceeding through the game, destroying every opponent in his path, goldenrail was standing idly near by, occasionally watching, occasionally peering at other nearby games. Next to Street Fighter II stood a game called drummania 10th Mix. Similar to the drum set portion of Rock Band, the screen rolled through lists of “popular” songs from which the player could choose. The reason I say “popular” in quotes is because the game billed the songs as such but none of them were familiar. It soon became apparent why.

A young boy came over and plopped a few tokens into the game. As the game began its warm-up cycle, a license flashed on the screen, “This game for sale and use only in Japan.” (goldenrail wasted a dollar in tokens attempting to get the notice to reappear for a picture, but it did not. She already knew she is terrible at fake music games and did not need an attempt to play drummania 10th Mix to reconfirm this for her.)

It’s possible the game was sold in Japan, but it was certainly being used in not-Japan. This explained not only why the songs were not familiar, but why so many of them were in a mix of English and Japanese, and why the screen often flashed Japanese warnings. [If anyone would care to translate the warning to the left, the Ippers would be most obliged.]

There are several reasons a game like this might have such a licensing restriction on it. This Ipper thinks it most likely that the licenses obtained by the game owner for the music included in the game are not international licenses. International licensing in music can be very complicated, often requiring dealing with collecting rights societies in each country where the music will be performed. It is also quite common for different parties to own the rights to the same song in different geographical areas.

Another possibility is similar geographical restrictions on patents that might be part of the game. Or, perhaps there is an agreement between manufacturers and distributers that certain versions of the game only go to certain regions, or that only one distributor may sell in a given area. Maybe the licensing restriction has to do with delayed release dates, with the games first being made available in Japan and other countries needing to wait (similar to Hollywood movies in the US verses elsewhere.) These reasons are all speculation of course; the real reason for the licenses restriction is not clear from the license notice itself. One thing, however, is clear: that game does not belong in Santa Cruz, California.

Purchase your own drummania 10th Mix here.

Stop, Moon, Thief!*

The Solar and Intergalactic Atomic Association (SIAA) has filed suit against the Moon for copyright/patent/trademark infringement. It also accuses the Moon of reverse passing off, attempting to claim the Sun’s light as its own and calling it Moonlight.

Proponents of the Sun claim that the Moon has persisted in the willful infringement of the Sun’s product for too long, sometimes going so far as to completely block the Sun’s product from getting to its intended market.

According to the SIAA, the Sun makes its light by a very detailed scientific process; nuclear fusion is not something anyone can do. The specific shape of the Sun’s appearance, the shade and hue of its light and the intensity of its glow are all results of the Sun’s creativity in deciding how to render itself to Earth. The bright yellow/white spear and white light are symbols that clearly represent the Sun.

“The Moon not only steals the light from the Sun, it adapts it, and then distributes the adaptation, all for its own credit!” explained SIAA spokesperson H.E. Apollo, further explaining that the Moon is also attempting to benefit from the good will of the Sun by redirecting the Sun’s light for its own purpose. “In a case like this,” Mr. Apollo continued, “we can’t rely on trade secret protection. Earth scientists have already discovered how we create the beautiful glow and warmth that is our business. We must rely on copyright, patent and trademark to protect our product.”

Representative for the Moon, Diana Mawu calls the SIAA’s claims baseless. “The Moon is not stealing anything, and is very offended at being accused of such behavior,” she told reporters yesterday. According to Ms. Mawu, the Moon’s behavior is perfectly legal. “The Moon obtains its light from the Sun via a millennium-long agreement. If the Moon desires to share this light with others, it is the Moon’s right.” Even if the Moon did not have such a long-standing agreement with the Sun, the Moon’s behavior would still be protected, Ms. Mawu claims. “The Moon is transforming the Sun’s product into something new. A new product that is not attempting to replace the Sun’s but meet the needs of a market in which the Sun is not likely enter, Night.”

The SIAA argues that the Moon is not “sharing” its light in the true sense of the word because no matter how much light it gives away, the amount it has is not diminished. As for the transformation argument, Mr. Apollo claims that the use of the Sun’s product is hardly transformative; the Moon merely dims the Sun’s light. In addition, the Moon takes a substantial portion of the Sun’s work in making this so-called transformation, most of its light. “The Moon is trying to claim that it is doing good work by delivering light to those who cannot receive it from the Sun. It is not the Sun’s fault that some are not in a position to obtain the Sun’s product. All are welcome to make arrangements with the Sun to obtain light directly from its source instead of through this third-party infringement.”

Mr. Apollo expressed the SIAA’s position at a press conference earlier this week: “The Sun’s products highly valued on Earth. We all know that life as we know it could not survive without the hard work of the Sun. This work needs to be protected. I am confident that the law will prevail and not let such an important producer sit unprotected in the sky, free for anyone to steal its creation.”

Ms. Mawu also remains confident, but that the Moon will “succeed in thwarting this blatant extortion attempt.” “The Moon is doing nothing wrong!” she insisted. “Besides,” she added, “the Sun has failed to file any trademark or copyright registrations or applications for patents.”

*Hopefully it goes without saying that this report is fictional, but just in case, “this report is a fictional story used for illustration purposes.”

Image credits: Winter Moon in Red Oak Frame, cc-by-nc-nd, Ray Schroeder; Sun, author.

Hat tip to The Boondocks episode Riley Wuz Here for the line, "you know Riley, the moon steals its shine from the sun, and no one ever gets the two confused."

An Easy Way to Explore Software Licenses

This Ipper recently finished a new book by Douglas E. Phillips called The Software License Unveiled: How Legislation by License Controls Software Access. Although, as her co-worker quipped, it is quite odd to think of software licenses in burkas (and thus able to be unveiled), Phillips does a good job explaining the true meaning of most software licenses.

[right: 3 software licenses hurry into the darkness to avoid unveiling. Burkas by Roy Evans Miranda, cc-by-nc.]

Although I think Ipper Dtrizzle would have been a more ideal audience for this book, having a background in both law and computer tech, I still found the book very interesting and readable. Despite my stumbling through part of the tech details, I think even someone with no law or tech background could find a read through The Software License Unveiled quite rewarding. Anyone who’s clicked “I Agree” on their computer screen will find some interesting morsels in it.

The Best Parts

Phillips does a good job of providing a lot of background, especially when it comes to the history of software development, the Free Software movement and the expansion of restrictive licensing terms. [Indeed, this book saved me from much embarrassment by teaching me about Richard Stallman; his name came up several times in conversations at work soon after I read about him.] The discussion of Free verses proprietary software is nicely balanced. Phillips points out the good and bad sides of both types of licenses, as well as suggesting changes from which both types could benefit.

I especially liked the reading-level and grade-level analysis of various software licenses. Users of Microsoft Word may be familiar with the Flesch-Kincaid grade level system. - My sister and I often competed to see who could get the higher grade level. It wasn’t until her fiancé was in med school that we even realized it went above 12. Dtrizzle prefers to compete for the lowest grade level. - Not only is it neat to understand how this system works, but it’s also very interesting to see how different licenses compare to each other. Let’s just say, there’s no way my sister could beat the standard Free Software license (esp. GPLv3), and no way any of the proprietary of Free licenses could beat Dtrizzle (except maybe the WTFPL).

Some Concerns

One of Phillips’ premises startled me a bit. He claims, throughout the book, that software licenses are fully binding between the user and the company. My law professors have constantly insisted otherwise, including my Intellectual Property Licensing professor who said the licenses were invalid adhesion contracts. At this point, I don’t know which side to believe. Phillips presented a few cases to support his claim, but I would have liked to see more. The book also had a few minor typos, but since it’s been a long while since I’ve read a book without any, I’m beginning to assume this is standard.

Go For It

In his conclusion, Phillips says: “This book has suggested that the proliferation of legislative licensing undermines the efficiency of both models and threatens to take the digital economy in the wrong direction.” If this was his goal, he has succeeded. Phillips has done a good job of explaining the problems caused by long, detailed, inaccessible and forced licenses. He discusses the damage these types of licenses do, no matter the type of software they are attached to, and expresses some hope for changes that bring growth to the software industry and power to the user. If you’re at all interested in privately made “laws”, technology and its legal framework or the history of the software industry, you’ll enjoy taking a gander at The Software License Unveiled.

Bibliographic Details: The Software License Unveiled: How Legislation by License Controls Software Access, Douglas E. Phillips, hardcover $85.00, Oxford University Press, ISBN 978-0-19-53187-4. Less than 200 pages. Small and light. High ability to fit in laptop bag. Moderate risk of making you look like a geek in public (the cover’s got some techie looking pictures on it, inside of a computer, circuit thingy, guy with weird sensors on his fingers…).

Disclaimer: I was asked to read and review this book. I was not asked to like it.

Hey, You Got Music in My Baseball!

This evening, the Ippers went to a little going away pub crawl for a friend who’s heading off to the wonderful(?) world of SoCal.  We did the mini-version, making it through only one pub (hey, some people get to work in the mornings).  Of course, that pub had the mandatory large flat screen television airing ESPN’s Sports Center.  In the course of the repeated runnings of highlights, the image to the left caught my eye.  Probably familiar to many, this is the logo of the New York Yankees baseball team. 

This Ipper, however, is far less into baseball than she is into hip hop.  So the first thing she thought of when she saw the logo was Lil’ Wayne’s record label, Young Money Entertainment.  That logo is the one on the right.

Likelihood of confusion anyone?  Since these are both US marks, let’s play around with the Polaroid factors for likelihood of confusion.  (Assuming NY, as the longer established mark, as Plaintiffs.)

1. Strength of the plaintiff’s mark. The Yankees mark is very strong.  Probably recognizable around the world.  A google image search for “New York Yankees” brings up mostly pictures of the logo and almost no pictures of players or games.  The logo has gone beyond something used to show fan support and has practically become a brand in and of itself.  Hats bearing the logo come in ever color, including black on black, and are worn by people across the US regardless of their baseball team affiliation.  (I once saw a fan at a Giants game remove his Giants cap as soon as the game ended and put on his everyday Yankees cap to leave the stadium.  No, the Giants had not lost.)
2. Degree of similarity between the two marks. Both marks have the same font and the same layout.  In addition, the letters M and N are very similar, thus giving the two marks the same general look and feel, despite the different letters.  Although the Yankees' specific team colors are navy and white, the mark appears in many different colors, as does the Young Money mark.  Black white color combinations are very common for both marks.
3. The proximity of products or services. A baseball franchise and record label seem pretty far apart, however there is lots of overlap here.  To start with, there’s the New York Yankees Greatest Hits albums.  Then there’s the merchandising aspect.  Hip hop labels and baseball teams both deal in clothing and accessories bearing their marks.  The products and services of the two marks aren’t directly related, but do have a lot of side-overlap.  Incidentally, the Yankees mark happens to be one that is very common for hip hop artists and fans to wear.  Just another area where the marks might be seen in close proximity.  (Compare this NY bling to this YM bling.)
4. Likelihood that plaintiff will bridge the gap between markets.  As discussed above, the gap is pretty much already bridged, especially since the Yankees have put out music albums.
5. Evidence of actual confusion.  For this, I can only give my own antidotal experience.  Several times while preparing this post, I accidently copied one mark thinking I had the other one, or opened a new webpage for the mark that was on an open page instead of the one I needed.  It appears others have at least noticed the striking similarity.  Link (WARNING!!! foul language and what is best described as ‘ignent’ behavior on that link.)  That’s not much, but it’s all I’ve got.
6. Defendant’s good faith in adopting the mark.  Without asking Lil’ Wayne himself, I have no idea why he chose this mark.  I am guessing it’s partly in homage to the Yankees, but also partly because the Yankees logo is so popular in hip hop.  The style and familiarity of the logo express a message that, on some level, associate with hip hop.
7. The quality of defendant’s product or services. Judging the quality of hip hop…. I think we’re going to skip this factor this time.
8. The sophistication of the buyers.  I would guess that buyers of Yankees logo emblazoned items span the whole gauntlet of sophistication.  Purchasers of Young Money items are probably less likely to be sophisticated in the way courts would think of it, but they’re more likely to be very street smart and able to protect themselves from being ripped off by the wrong mark. (Ripped off in the sense of not getting what they thought they were paying for.)

Seems to me, the Yankees would have a decent case.  But I don’t think they would (or should) bring an action.  The mark is very strong; most people who care will know which mark they want, and a suit would probably bring nothing but bad PR.

But what do our readers think?  Likelihood of confusion?  If you were the Yankees, would you bring suit?

Did You Read That?

I actually, occasionally, read the terms of service and licensing agreements before clicking “Agree” for websites and software programs.  Apparently I’m a bit odd in that sense.  Even my Intellectual Property Licensing professor said she doesn’t read them.  Sometimes I’m just curious, sometimes I really care, sometimes I don’t have the time or energy.  One of the biggest factors in my decision to read is whether there are other options for similar services or if I can tailor my use of the site to fit only the terms to which I agree.

A Little Comparison

For example, I reluctantly joined Facebook a few months ago but my only ‘picture’ is a black box.  Why?  Because this is the Facebook Terms for users’ content include:

“you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook ("IP License")” (emphasis added)

Facebook has really cleaned up their terms of use (compare to prior), but I don’t like that “transferable” part in there.  Why does Facebook need the right to transfer the license I gave Facebook for my work?  If another company were to buy Facebook, it would want all the license rights to the content on the site, but I might not trust the new owner anymore than I trust Facebook.  [And, when I joined, Facebook’s terms included a provision allowing Facebook to use my content commercially.  I presume this was because Facebook runs ads on the side of the page, but it was a term with which I am not comfortable.]

I was able to choose not to post photos on Facebook because there is another option; Flickr.  The Yahoo! Terms of Service that govern for Flickr include this nice little tid bit:

With respect to photos, graphics, audio or video you submit or make available for inclusion on publicly accessible areas of the Yahoo! Services other than Yahoo! Groups, the license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such Content on the Yahoo! Services solely for the purpose for which such Content was submitted or made available. (emphasis added)

See that nice little “solely for the purpose of…” clause.  I love that.  Yahoo! needs the mentioned license rights in order for Flickr to do what it’s supposed to do.  But, I have no desire to give Yahoo! those rights for something like handing my photos out on flyers at a conference (unless, of course, they’re cc-licensed in a way that allows this).  Yahoo! doesn’t try to grab more rights than it needs.  Beautiful.

Surprises

Sometimes, a license agreement or terms of service can be pleasantly surprising.  Sometimes, surprising in a not so pleasant way.  The Microsoft Terms of Use are actually pretty easy to read and navigate.  On top of that, the company does a decent job of explaining the nebulous concept of fair use, explaining that “[I]n limited situations, you can use copyrighted works without permission from the copyright holder.”  But the really great, and extremely surprising, piece in the Terms of Use is the mention of and support of Creative Commons licenses.  Creative Commons and Microsoft are usually assumed to be on opposite sides of the battlefield.  It’s great to see Microsoft recognizing the value CC licenses provide:

Creative Commons licenses are a simple way for you to let people know what uses they can make of your creative works and under what conditions.

Google Chrome, on the other hand, has a not so great surprise in its terms:

“12.2 Google may at any time, terminate its legal agreement with you if: (A) you have breached any provision of the Terms (or have acted in manner which clearly shows that you do not intend to, or are unable to comply with the provisions of the Terms)”

In general, the way software licenses work is that if you use the software, you’re agreeing to the licensing terms and therefore using it with permission.  If you were to use the software without permission, you would be committing copyright infringement because of the unauthorized reproductions of the copyrighted elements of the software.  So, if you breach a provision of the Terms so that you are no longer an authorized user, you are now an unauthorized user and continued use constitutes copyright infringement.  Copyright infringement is very expensive if you are found liable.

Incidentally, Creative Commons licenses have a very similar provision in them.  “This License and the rights granted hereunder will terminate automatically upon any breach by You of the terms of this License.”  This term makes sense in CC licenses because the license is specifically granting particular copyright rights for a copyrighted work.  If the person won’t agree to the terms for these rights, then the person who owns the rights doesn’t need to grant them.  i.e. If I’ll let you sit in my chair as long as you won’t stab it with your pocket knife and you insist you want to stab it with your knife, there’s no reason I should let you sit in it.

The license agreement for a piece of software, such as Google Chrome, contains many more issues than just copyright rights.  For example, Google’s Terms include provisions about information storage, disrupting service, removing content and protections for their software that go beyond that covered by normal IP laws.  In this case it’s like I’m saying you can sit in my chair, but only if you don’t stab it with your knife, do eat potato chips tomorrow, never step on my lawn, and only cry on Thursdays.  If you happen to cry on Wednesday, you can’t sit in my chair.  Whether or not I let you sit in my chair has a great deal to do with how you’ll treat my chair; it has nothing to do with when you cry or if you step on my lawn.

Will I still use Chrome?  Yes.  Why? Because there aren’t any terms I see myself not being able to follow.  The other terms are generally agreeable to me.  And, I find Chrome to be my best option for browsers.

The key to reviewing terms of service is to know what you are willing to accept for a specific service and what will never be acceptable no matter how great the service.  And have fun reading, you never know, you might be surprised!

Oh Timbaland!

Dear Mr. Timothy Mosley,
I must say, I am a bit surprised. You’ve been in this game long enough to know better than this. You’ve been a producer nearly 15 years now, you ought to know all about sampling.

It’s not that you’re being sued (again) for copyright infringement – that happens to even the best of them – it’s your comments in response that make me shake my head. Before we take a look at those, I want to let you know that I am aware these comments are from 2007, when the video comparing your song and the Finnish song you allegedly used first appeared on YouTube. I am also aware that a Norwegian court has already dismissed a case about the two songs, which is now on appeal. It’s quite possible the Flordia court will find no substantial similarities or no access for copying – a friend of mine listened and said they didn’t sound alike – but, that still does not excuse your comments from 2007, when this whole mess started. Let’s go over those, shall we.

"That mess is so ridiculous." "I can't really discuss it because it's a legal matter. [And that is where you should have stopped.]

But that's why people don't believe it. [I’m not sure what ‘it’ is, so we’re going to leave this alone.]

It's from a video game, idiot. [Bad move, you just ruined one of your defenses. You admitted to having access to the allegedly infringed work. The person bringing the lawsuit, Glenn Gallefoss, claims the song was done for the Commodore 64. My family has one of those, it’s a computer, used to play video games. However, there is hope. If the video game you are mentioning came out before the allegedly infringed song, you might be able to show that Gallefoss (and the original creator, since Gallefoss remixed, Janne Sunni, actually took the song from a game themselves. ]

"Sample and stole is two different things. [That depends on whether or not you cleared the sample, and judging by the lawsuit, you didn’t.]

Stole is like I walked in your house, watched you make it, stole your protools, went to my house and told Nelly, 'Hey, I got a great song for you.' [Yes, that is stealing too, even without taking the protools with you.]

Sample is like you heard it somewhere, and you just sampled. [If that sample isn’t cleared, it’s still stealing. As you should well know, being a creator yourself, creators automatically get certain rights in their works, the moment the works are created. These rights – we call them copyrights - include the sole right to copy, publicly perform and make derivative works. That’s why there are things called licenses. I assume you’ve heard of licenses, and I’d bet a lot of money you frequently get paid for them from organizations like SoundExchange and (if you write as well as produce) ASCAP. Licenses are how creators arrange to let others do the things only the creators have the right to do. If I create a song and you want to make a derivative work from it, I license you that right for that work and you pay me a licensing fee.]

Maybe you didn't know who it was by because it don't have the credits listed." [This, Mr. Mosley, is called an orphan works problem. There’s been a lot of debate about orphan works lately, including in Congress. Orphan works are works for which the creator is unknown or unable to be found. Basically, the work has no parent, hence the term orphan. Just as it’s very hard to ask a parent you can’t find if his child can come out to play, it’s very hard to ask a creator you can’t find for a license to his work. Unfortunately, it does not also mean you can just use the work.
Part of the reason there are so many orphan works now floating around is the very long term of copyright and the effects of the retroactive Sonny Bono Copyright Extension Term Act. One solution to the orphan works problem would be a shorter copyright term. (Did you know it was originally only 14 years?!) But somehow, as a music producer, I’m guessing you’d be against that.]

This might sound sort of bleak, but don’t give up. There’s plenty of music out there that you can sample all you want without having to worry about lawsuits. First, there’s something called the public domain. This might be a bit hard to sample because you will only be able to use very old sound recordings of even older songs, and that’s only if the sound recording copyright owner didn’t renew their copyright (another mess from extending copyright terms.) Figuring out what’s in the public domain can be almost as much hassle as trying to license something that isn’t.

There’s an even better option. Check out ccMixter. It’s a place where people put music they want others to use and sample. You don’t have to license the music because the creators have already licensed it using Creative Commons licenses. These licenses say specifically what others can do with their work. Just don’t use anything that has an “nc” license it; that means no commercial work, and you, my friend, do commercial work.

As for the law suit, don’t worry. You’re very rich, so I’m sure you have very good attorneys. (Although, that didn’t help P.Diddy.) Just keep your mouth shut.

Sincerely,
goldenrail

Yes, Virginia, there is Piracy

Andrew Rens’ blog, Ex Africa Semper Aliquid Novi has a post today on “Piracy in Africa,” which deplores the North/South battle where the North (developed countries with large intellectual property industries) encourages the South (Africa) to prevent copyright infringement by increasing copyright enforcement.

While I agree with the author’s point that African countries should not be forced to use their limited resources to get already over-bloated (and in my opinion rather useless) foreign industries, I also believe that the post deserves some criticism.  I encourage you to check out his post; it has some good points, and it’s only fair that you see his whole side rather than just the pieces I pick at.

Piracy, there are many who have taken issue with using this term in regards to copyright infringement.  Rens briefly alludes to this at the end of his post.  In terms of the few examples of infringement mentioned by him: downloading music, copying CDs or DVDs for personal use, using a copied version of Windows, I agree, this is not piracy.  However, Africa does have levels of copyright infringement than can legitimately be called piracy.  In Nigeria, for example, huge optical disc plants churn out incredible numbers of unauthorized copies of CDs, DVDs and VCDs.  The quantities of unauthorized copies can far out-number the amount of authorized copies on the market.  These optical disc plants do this solely for the sake of profit, often times delivering less than quality goods.  This is piracy.

It is these infringing materials that prevent the real threat to copyright in Africa, not downloads (a developed-country problem).  These types of infringing materials do not hurt the “large monopolies” Rens fingers as the supposed beneficiaries of tighter enforcement laws.  These infringing materials are very often unauthorized copies of local artists’ works.  These infringing materials hurt the local industries, the barely-bourgeoning, attempting to grow, potential industries.

Rens also says, “The 547 million people living in Sub-Saharan Africa without electricity (World Bank) have no use  for CDs and DVDs.”  For a statement from someone living in Africa, this really surprised me.  Any African knows that you do not need electricity to have use for such things.  There are always work-arounds; things like small generators and car batteries.  I have seen mud huts with satellite dishes, thatched roofs with antennas reaching to the sky, for the battery powered television far down below.  The biggest problem with DVDs and CDs is not the lack of electricity, but how easily they get scratched.  But for that, there’s cassette tapes, which can also easily be reproduced.

In terms of the developed world pushing down on developing countries to enact stricter copyright laws, to spend more on enforcement, and to protect these foreign rights, Rens is correct, there are “high barriers to joining the Information Society” and they do “require us to critically examine” attempts to “impose greater barriers to access to knowledge.”  But, these laws also play an important role in local economies, for the benefit of the local people.  We cannot overlook this.

[I have completely ignored the other aspect of benefits that come with strengthening IP laws, which is of course encouraging foreign investment, in order to focus on the purely domestic aspects.  I’d be happy to explore the other side more if anyone should be interested in discussing it.]

When Rightholders Die

Yesterday and today, the internet’s abuzz with the unfolding story of Michael Jackson’s death.  Of course we at Ip’s What’s Up have no news to add about what happened; what we have are some IP related questions.

At one point Michael Jackson owned a large amount of the Beatles’ catalogue.  How much of it does he still own?  Or rather, how much of it remained and is now part of his estate?  What will happen to the rights previously held by Jackson?  Does Sir Paul have a chance to recover the rights?

There are a variety of intellectual property issues related to estates.  Intellectual property is property, and the rights given under the IP laws (with some exceptions) can be transferred just as any other property, including through trusts, through a Will or through an estate sale.  However, intellectual property also brings with it some interesting caveats.  Depending on the jurisdiction and when the work was created, rights may return to the original owner (the creator or his heirs) upon someone’s death.  Death also affects how long the rights will be valid as most copyright regimes begin counting the life of a copyright from the death of the creator.

Ip’s What’s Up will continue to report as we attempt to find out more about what’s left of Michael Jackson’s Beatles collection and what’s going to happen to it.

That Lady that Got Sued in Minnesota (Clearing up some lay-misconceptions about the Jammie Thomas trial)

One of the neat things about being an Ipper is that people know you’re interested in intellectual property.  One of the sometimes neat things about this is that they try to talk to you about whatever their idea of intellectual property is.  It’s not neat because you have to try to figure out what someone’s talking about and do some straightening out.  It is neat because you get a sort of down on the ground insiders view to the misconceptions that are out there.

Today, Ip’s What’s Up would like to clear up a few misconceptions overheard about the Jammie Thomas/RIAA trial.

• Jammie did not sue the music industry – the Recording Industry Association of America, an organization that represents a good chunk of the music industry in the United States sued Jammie.  The RIAA began a campaign of lawsuits in 2003 where they tracked down people who had shared files over the internet.  Both copying and distributing music without permission is against the copyright law.
• The ‘deal’ Jammie refused was a standard settlement offer that some view as extortion – Jammie’s case was a big deal because it was the first one where the person accused of sharing songs refused the settlement deal.  The RIAA usually offers that the person accused of sharing music pay about $5,000 and the RIAA will drop the law suit.  Some experts, such as Ray Beckerman, feel that this offer is simply the RIAA scaring people and extorting money from them.  There are questions about how accurately the RIAA can identify people it things have shared music.  There is also concern over how much of a difference there is between the $5,000 settlement offer and the $24 value of the songs supposedly shared.  (In Jammie’s case, she was accused of sharing 24 songs.)  In short, the settlement was refused on the principle of the matter.
• Jammie was not sued twice – although this was her second trial, she was not sued a second time.  The first trial was ruled a mistrial because of some problems with the instructions given to the jury.  The second trial sort of replaces the first one.

The widely publicized results of the second trial were worse for Jammie than the first trial.  In the first trial she was found to have committed copyright infringement and the RIAA was awarded $200,000 in damages.  This time, the RIAA was awarded almost $2 million.  There is talk in the copyright world of a third lawsuit; one that would challenge the constitutionality of the damages for copyright infringement.

Copyright War Summit Report: Law vs. Technology: Embracing Not Suing New Technologies

Today Ip’s What’s Up brings you our report on the last of the four BrightTalk presentations in the Copyright War Summit we attended: Law vs. Technology: Embracing Not Suing New Technologies.  E. Michael Harrington explained his four work mantra and reviewed the good, the bad and the neutral of copyright and technology.

Harrington’s Mantra

• Everything – access to all audio/visual media
• Everywhere – access in your home, on any mode of transportation, anywhere you might go
• Anytime – access any and all the time
• Anyway – including using media to create derivative works and using whatever device you please to access and change media

The realization of Harrington’s mantra is currently blocked by both law and technology.  Copyright law prevents ‘everything’ and ‘anyway.’  Technology, with its proprietary protections, can prevent ‘anyway’ as well.  ‘Anytime’ and ‘everywhere’ are pretty well covered now, being allowed (to some extent) by both technology and the law.  Harrington’s good/bad/neutral list helps explain how technology and the law both hinder and help in the achievement of Harrington’s Mantra.

Copyright and Tech – The Good, the Bad and the Neutral

The Good

• The Sony Betamax case from 1984, introducing “substantial noninfringing use” and “time shifting” as key copyright terms (also mentioned by Howard Knopff during his presentation)
• Audio Home Recording Act of 1992 (AHRA), allowing consumers access to blank digital media (and imposing a levy on specific blank digital media, paid to the recording industry)
• RIAA v. Diamond Multimedia case from 1999, allowing consumers access to mp3 players
• introduction of the iTunes music store in 2003, allowing consumers a legal and easy way to download music
• Amazon introducing DRM-free mp3s in 2008

The Bad

• Telecommunications Act of 1996, deregulated the broadcast industry so that it was ok for a single company to own many, many stations (for plenty of commentary on why this is bad and where it’s led, see Inside Music Media)
• Digital Millennium Copyright Act [pdf] in 1998, made circumventing technologies put in place by media owners a crime in itself, regardless of legality of use of the media
• UMG v. Mp3.com case in 2000, Mp3.com was the first of the ‘store your own music in the cloud’ music lockers; Universal’s lawsuit shut down the service
• A&M v. Napster case in 2001, the infamous case that changed the face of Napster.  Harrington pointed out that there were “so many reasons why [turning Napster into something the industry could use] should have worked”
• Closing of Tower Records in 2006, the beginning of the end of brick and mortar record stores

The Neutral

• Marketplace
• New technology
• Litigation
• Legislation

For more details on Harrington’s mantra or his list of good, bad and neutral aspects of technology and the law, or to explore some reasons why people break the law, check out Harrington’s full presentation.  Even if you’re not that interested in the topics, you will be entertained.

Copyright War Summit Report: ACTA, WIPO and in Canada

Howard Knopf, of Excess Copyright, did a presentation for the BrightTalk Copyright War Summit that summed up three important copyright topics: the ever-top-secret Anti-Counterfeiting Trade Agreement (ACTA), the World Intellectual Property Organization (WIPO), and that horrible den of copyright infringement – according to the USTR Special 301 Report – Canada.  (Readers, please be sure tongue is properly inserted in cheek when reading that last part.)

ACTA

Much talk and speculation have surrounded ACTA since leaks of its existence first began to surface.  Knopf does not get into any of the meat of ACTA (meat can be found here).  Instead, he focuses on the very important issues surrounding the agreement.

One of the biggest concerns is the plurilateral nature of the agreement, the absence of major international organizations like WIPO and the World Trade Organization.  These two organizations traditionally handle international intellectual property treaties, yet they are completely uninvolved with ACTA.  Also missing from the negotiations: developing countries.  There are more developing than developed countries in the world; they are important.

ACTA’s secretiveness comes down to one thing.  It is a lobby-driven effort being propelled forward by music, film and software industries.  These industries don’t want to protect against fake drugs or other ‘counterfeits’; they want ex officio border control measures, customs officials who check iPods for illegally obtained music, and 3 strike ISP rules.

[For more information on the ACTA part of Knopf’s presentation and ACTA in general, see IP JUR.]

WIPO

WIPO has had its fair share of trials and tribulations during the past decade.  The Treaty for the Protection of the Rights of Broadcasting, Cablecasting and Webcasting Organizations is still just ‘proposed.’  The Audiovisual Performances Treaty is dead in the water.  And the Treaty for Improved Access for Blind, Visually Impaired and other Reading Disabled Persons has met with some unexpected opposition.

Yet, Knopf appears hopeful that WIPO is on the mend.  The new Director General, Francis Gurry brings a lot of energy and integrity back to the organization.  Committees continue to meet and move forward on their individual projects and the Treaty for the Blind is still on the table.

Canada

Knopf believes (and this Ipper thinks there’s a lot of sense in his argument) that Canada has one of the best IP regimes.  Like Baby Bear’s bed, Canada’s IP laws are not too hard and not too soft.  Canada has a tax on blank media, which compensates rightsowners for media sharing.  There is also wide Fair Dealing (similar to US concept of Fair Use) for educators and librarians, outlined in Canada Supreme Court case CCH 2004.

Knopf also gave a short summary of important marks in copyright’s history: the Statute of Anne, Apollo v. White Smith, introduction of the first portable computers, Sony, Napster, Grokster.

If you’re interested in more about the superiority of Canadian IP law, WIPO’s strength going forward or the controversy surrounding ACTA, you can check out Howard Knopf’s excellent and informative presentation in full at BrightTalk.

Copyright War Summit Report: The Future of Google Book Search

Google Policy Analyst Derek Slater presented on Google Book Search and its future.  In addition to explaining the Google Book Settlement (discussed here, with follow-ups here and here), Slater clarified the underpinnings of Google Book Search itself.  He also provided some interesting statistics on orphan works and the public domain.

For those following the Google Book Search Settlement controversy, the most interesting part of the presentation would probably be Slater’s discussion of how the Settlement makes competition easier rather than eliminating it (one of the biggest criticisms of the Settlement Agreement).

Book Search Sources

The books contained in Google Book Search come from two different projects.  One of these projects is undisputedly legit.  It is a Partnership Program in which authors and publishers contribute to Book Search by sending copies of their works to Google for scanning.  The authors and publishers have agreements with Google where they share the revenue from any advertising displayed alongside views of the scanned books.  Slater confirmed over 1.5 million books have been added to Google Book Search in this way.

The Library Project is a partnership not with publishers and authors, but with a number of libraries around the world.  Basically, the agreement is that Google scans the books and the libraries receive digital copies of their collections.  Google separates works in this project into two subdivisions: out of copyright and in copyright.  The in copyright books scanned from the Library Project are the cause of the controversy that led to the law suit and subsequent Settlement Agreement.

Facilitating Competition

Slater argues that the Google Book Search Settlement actually facilitates competing with Google Book rather than giving Google a monopoly.  In short, this is because Google is doing all the heavy leg work.  Google is helping to fund the registry that will contain information about who is willing to license and who is not, or under what circumstances someone is willing to license (assuming the settlement is approved). 

Google’s work will lead to less orphan works problems by increasing the number of claimed works.  This will help open up access to currently orphaned works for others wishing to compete.  Google’s work will also help clarify the status of older works, works whose creation date falls into the 40 year grey period created by various changes to the US Copyright Act.  Google believes that a great number of these works are actually in the public domain.  Once the status of a book is known, possible competitors will have an easier time accessing the book.

Google is also facilitating access for potential competitors by making copyright renewal records available for download.  Slater’s arguments address many of the concerns raised by those fearful of a monopoly of knowledge, except for one big one: competitors access to original copies of the books to scan.  Perhaps Google assumes competitors will just have to go through libraries as Google has for out-of-print works.  Will libraries be willing to partner with lesser-knowns or start-ups?

The full presentation goes into more detail and does a good job of explaining the Settlement and its perceived benefits.  If you are interested in details of the Settlement or the statistics on copyright and books, it’s worth a view.

Copyright War Summit Report: Recording Industry vs. The People

Recording Industry vs. The People, presented by attorney and author of the blog Recording Industry vs. The People, Ray Beckerman
Beckerman discusses how the RIAA has proceeded in their law suits thus far, highlighting the biggest problems with the RIAA's tactics.  Some of these problems include: unlicensed investigators, insufficient evidence, and violations of various rules governing Federal Court procedures (Federal Rules of Civil Procedure). 

Most interesting is the missing proof of registration.  Under US copyright law, registration is not required for copyright protection, but it is required in order to recover statutory damages in an infringement case.  Most RIAA cases settled, and for the few that went to court, none investigated the required registrations.  But it looks like that’s about to change in the new Thomas retrial.

Another surprising element to the RIAA cases (or not-so-surprising, depending on how you’re looking at it) is that the RIAA has not gone after anyone who has used bitTorrent types of services.  Hmm… seems to me that’s like only chasing after pirates who don’t have boats.

If you’re interested in the RIAA’s lawsuits, have ever downloaded  music or even ever thought of sharing music online, Beckerman’s presentation is well worth a watch.

Copyright War Summit on BrightTalk

A bullet-less, death-less war sounds like it should be a dream come true. Too bad it's only a poorly named threat to some large industries. The Copyright War is often discussed like some big blockbuster series, complete with rampaging pirates. Today, BrightTalk hosted a Copyright War summit, bringing together webanair presentations from a variety of people in a variety of locations. Topics ranged from the RIAA and ACTA to Creative Commons and Google Book Search.

Unlike the summits, panels and seminars we usually discuss on Ip’s What’s Up, the Copyright War Summit is unique in that you can still see the actual presentations. And they’re free. Originally presented live, the slide shows and accompanying audio were recorded by BrightTalk and remain available on the BrightTalk website. goldenrail was able to attend four of the seven presentations in the summit. Ip’s What’s Up will present small summaries of these presentations over the next few days.

Here is a full list of the presentations and presenters

• Recording Industry vs. The People - Ray Beckerman
  The Future of Google Book Search – Derek Slater
• Anti-Counterfeiting Trade Agreement (ACTA), WIPO and in Canada – Howard Knopf
• Law vs. Technology: Embracing Not Suing New Technologies – E. Michael Harrington
• Successfully Defending Software Audits – Robert J. Scott
• Creative Commons: The Sharing Standard – Fred Benenson
• HADOPI – David-Irving Tayer

[fyi: There’s a few places in the presentations where slides get a little mixed up or presenters get flustered. Many of the presenters were new to BrightTalk and ran into various technical issues. Just bear with them and enjoy!]

US Developments in Internet Trademark Usage

Today, Ipper goldenrail had the opportunity (thanks to a friend at IP Society) to attend an interesting panel discussion on trademark law and the internet: Marked for Confusion: Has the Internet Changed Trademark Law?

Various Bay Area attorneys and other IP enthusiasts gathered in the early morning hours at Bingham's Silicon Valley office* for a special treat.  (And not just the fresh fruit and delicious tea.)  What they received was a well-done discussion with expert panelists Eric Goldman, of Santa Clara University Law School, and Mary Huser of eBay.  Moderator  Tom Kuhle, of Bingham McCutchen, added more experience and plenty of witty fun to the presentation.  The entire event was like a superbly done law school text book, using cases to illustrate basic elements of trademark law and the new developments within those elements.  A list of the cases used and some special points on each are listed below.

Several parts of the event deserve special praise: 1) the panel started at exactly 8:30, as promoted; 2) the panel ended at exactly 10:00, as promoted; 3) despite the local nature of the presentation, there was plenty of international focus with an emphasis to the audience of how important international law and cases are when dealing with anything on the internet.  This Ipper was impressed and thinks some fellow bloggers might have preferred this session to a certain "International" session dealing with the internet and trademarks.

Cases Used in Discussion

• 1-800 Contacts v. When U (2005): a staple of any Trademark text book, 1-800 Contacts was one of the first cases involving internet advertising and trademarks in the behind-the-scenes part of the web.  In this case, the 2nd Circuit held that using trademarks in the internal workings to bring up information about competitors was not "use in commerce," something required by the Lanham Act for trademark infringement.
  
  Be careful, the panel warned that Rescuecom may have limited 1-800 Contacts to its facts, and its facts involve outdated technology no longer in use.
  
• Rescuecom v. Google, 562 F. 3d 123 (April 3, 2009): this time the Second Circuit found that trademark words in the internal workings of a search engine did equal "use in commerce."  The reason: google sells the keywords.
  
  The court did not decide whether or not the use was infringing as this is an appellate decision overturning the lower court's dismissal of the case.
  
• Hearts on Fire v. Blue Nile 2009 WL 794482 (D. Mass. Mar. 27, 2009) (summary and analysis): another keyword "use in commerce" case.  This case is a battle between two competitors rather than the usual company x verses a search engine.  Again, the court said there was use in commerce; this time because the defendant purchased trademark words as keyword terms.  The court denied the motion for dismissal.
  
  As Eric pointed out, Blue Nile faces a massive tidal wave of litigation costs if it chooses to defend its use.  It will be interesting to see whether this case moves forward or settles.
  
• Beltronics v. Midwest Inventory Distribution (April 9, 2009): a confusion case with a first sale defense.  Midwest was selling Beltronics radar detectors below retail cost on eBay with a non-manufacturer's warranty.  The Tenth Circuit held that the possibility of creating confusion by selling legitimate products with a different warranty was enough for Beltronics to "demonstrate a substantial likelihood of success on the merits," the standard needed to grant the preliminary injunction at issue.  The court did not decide the actual matter of confusion.
  
  The panel members had strong feelings about this case, mostly negative.  Eric sees no real confusion and Mary sees one of many recent cases using trademark law in an attempt to keep prices uncompetitively high.
  
• Babyage.com v. Leachco, M.D. Pa. Jan. 12, 2009: deals with the newer "initial confusion".  This is the type of confusion that might lead a customer to the wrong website but not to buying the wrong product.  Here a search for Leachco led customers to Babyage where Leachco products were compared with Babyage products.  The court held there was a question of fact as to whether or not this created initial confusion and denied summary judgment for Babyage.  Another case that will be interesting to watch if it continues to trial.
  
• Mary Kay, Inc. v. Webber, 2009 WL 426470 (N.D. Tex. Feb. 20, 2009) (summary and analysis): another failing of the first sale defense.  The court decided that discontinued and expired beauty products were different than actual Mary Kay products and therefore the first sale doctrine did not apply to the case.  Summary judgment was denied.
  
  As an Independent Beauty Consultant myself, I am a bit confused as to why this is a trademark infringement case and not a breach of contract case.  Beauty Consultants are not allowed to sell products below the suggested retail price, as this Beauty Consultant was doing on eBay.  Makes one wonder if Mary was on to something when she again mentioned brand owners attempting to use trademark law to protect anti-competition measures.
  
• Tiffany v. eBay (pdf), 576 F. Supp.2d 463 (S.D. N.Y. 2008): a rather well-known case in the TM field.  The court in Tiffany held that eBay was not liable for the few non-legit 'Tiffany' pieces that slipped through eBay's extensive infringement-stopping process.  The case is now going up for appeal, where the key issue will be whether the correct standard of knowledge for liability is specific or general.
  
  Mary stressed that one of the most important things in this case was eBay's putting before the judge all the information about what eBay does to help prevent against infringing sales on its platform.  The court was then able to compare all the work eBay had done with Tiffany's simple statement than any seller selling more than five Tiffany items must be selling counterfeit items.  Tom recommended the courts opinion as excellent reading because it goes through eBay's process in detail.
  
  Eric pointed out that many courts have written decisions in which they praise third-party platforms for their involvement in helping to protect brand-owners and sellers.  He contrasted this with the common position from the 1990s where third-party platforms wanted as little involvement as possible with any of the other parties in order to lessen their liability.

* The event was sponsored both by Bingham McCutchen and by the High Tech Law Institute at Santa Clara Law School.