New Beginnings

Dear Readers,

I have some wonderful news and some sad news.  First, the wonderful news: I passed the California Bar Exam and am now an attorney!  Now, for the sad news, dtrizzle and I are closing this blog.

For the past year and a half, I have been fortunate to be a contributor for the Afro-IP blog, which focuses on my primary interest area, Intellectual Property law in Africa.  More good fortune has come my way in the form of an invite to also contribute to the copyright-focused 1709 Copyright Blog.  Between the two of these, most of my IP law interests are covered, leaving me very little material to cover on Ip’s What’s Up.  For the few things that do not quite fit on either of those blogs, I will force my family and friends to suffer a little bit of legal musing on my personal blog.  You can read more from dtrizzle at his regular blog.

Thank you all for reading regularly, subscribing and leaving comments.  My experiences with Ip’s What’s Up have been wonderful.  It’s been a great outlet for thoughts and discussions and I owe much to my time with it and you.

Stay well,
goldenrail

Thank You for Being Our Fans, Please Keep Stealing Our Music

My little sister is only 7 years younger than me, but sometimes it feels like a whole generation.  (More on the generation gap.)  Never was this more apparent than when we stood together at the New Found Glory concert in San Francisco last month.

Music Coming of Age at the Turn of the Century

New Found Glory, or NFG for short, released their first full-length album in 1999, just as Napster was entering its short-lived heyday.  This band grew-up in the era of file sharing.  Not the band members, but the band itself.  Between 1999 and 2009, while Napster, Grokster and Aimster all came and went, while RIAA lawsuits against file sharers were filed and settled and won in court, NFG released six albums selling well over a million copies total and bringing in plenty of dollars.  (Three of the albums were certified Gold.)

San Francisco, the stage at the Regency Ballroom, the band has paused in between songs and the band members are thanking their fans for a decade of support.  “Thank you for downloading our songs!”  “We won’t tell you not to download music because we do it ourselves.”  “We don’t care if you’re paying for it or not, just that your listening to it.”  The thank you’s went on, thanking the fans for burning cds from their friends, for sharing with each other, for nearly every possible way you can think of getting music for free.  Then, as an afterthought, the bass player says to the lead singer, “and buying.”  “Oh yeah, and thank you to those who buy our albums, too.”

My sister was cheering and bouncing around with the rest of the madness that is young twenty-somethings at a rock concert.  I was standing in shock, my mouth gaping open, the wheels in my mind turning as a time line of the past 10 years floated past.

The Old Guard

Before this concert, I knew little about NFG.  In fact, all I did know was that they are one of my sister’s favorite bands.  How different this band and this concert were from the one my sister and I usually see together, a favorite of both of ours: Metallica.

Anyone familiar with copyright or the history of file sharing, regardless of their musical genre preferences, knows Metallica.  The legendary band that ruined the lives of college students everywhere by bringing a lawsuit against Napster.  Or at least, that’s the folklore.  Metallica brought the first suit against Napster.  But that suit actually settled.  The suit that brought Napster down was filed by A&M Records, A&M Records Inc. v. Napster, 239 F.3d 1004 (9th Cir. 2001).

Many people were angry with Metallica.  I was proud of them.  I was in college when Napster was in full swing.  I was in college when Napster was shut down.  I was probably the only one in my college who was glad when Metallica brought that first lawsuit.  In my mind, big, high profile superstars like Metallica were the only ones that stood a chance in the fight against Napster. 

As I mentioned in a previous post, my awareness of copyright was more acute than it ought to have been.  I was convinced that Napster had to be illegal and tried to convince my friends.  Either they didn’t believe me - “It can’t be illegal because it’s there.” – or they didn’t care, “Bands don’t see any of the money from an album sale anyway.”  In my mind, the lawsuit vindicated me; “I was right all along,” I thought.  But there was so much I didn’t understand, didn’t know, about the technology, about the music industry, about the sweeping changes already in progress.

The Shift Goes On

The changes of the music industry structure in the past twenty years are too detailed to go into here.  A&M was gone even before a decision came down in its lawsuit against Napster.  (History of the end of A&M.)  Suffice to say, file sharing couldn’t have been responsible for its death. 

Still, no one will deny the profound effect new technologies are having on the entertainment industries.  There are constant fights between guardians of the status quo and vanguards of the new business models. (Example.)  And bands are showing less and less support for the war-raging tactics previously promoted by the industry.

New Found Glory’s support of its music-stealing fans isn’t the only example of change.  Earlier this year, Bruce Springsteen asked to have his name removed from an ASCAP suit.  That suit had nothing to do with new technology or file sharing, but it shows the same reluctance to fight against those who enjoy the music.

The statements made by these artists exemplify a shift in the music world.  A shift that has already changed how the industry operates and how fans interact with their music.  A shift that is still rumbling.  I wonder what the bands just starting out will say to their fans ten years from now.

IP, it’s Everywhere

When I was a little girl, I was very aware of copyrights and patents.  I have a feeling this was not normal and more likely the product of spending a good portion of my childhood hanging out with attorneys, namely my dad and grandfather.  For me, copyright notices were everywhere.  My grandfather put them on the back of the Polaroid photos he took of my sister and I playing at his desk.  My great-aunt, who is an author and scholar, would send me typed letters with penciled in copyright notices on them. And to this day, my father still puts the little c in a circle at the bottom of love poems he writes for my mother.  (I guess just in case a thief comes in and pauses to remove the letter from its frame and photocopy it before escaping.)  My grandpa explained to me what the little © meant and how to look for the symbol to find when a work was created.  He also taught me what the long-string of small numbers on most of my toys meant and why sometimes things just said “pat. pending.”

As much as my acute awareness of intellectual property was odd twenty years ago, it is not odd for today’s children.  We, all of us, adult or child, are constantly bombarded by notices, threats, claims, arguments and the-world-is-ending claims about intellectual property.

The purpose of this blog has been to discuss those little IP peek-a-boos in daily life.  However, the distant third-person format has made this difficult and often been enough to push me into the classic I-just-didn’t-get-around-to-it excuse of procrastination.  For that reason I am shifting the perspective, as you can tell, starting with this post.  I intend to keep the topics varied and relevant to people with different levels of knowledge about intellectual property. Hopefully my small group of readers (Hi Mom!) will find the content more accessible and appearing more often this way.

Burgeoning Attorney: My daddy and me at his law office, circa 1996.

Intellectual Property: Important Enough for the California Bar Exam

Ip’s What’s Up would like to thank its readers for their patience during the last two months.  Ipper goldenrail was MIA, preparing for the California Bar Exam, which was conducted last week.  While studying for this exam, she began to wonder something:  Why isn’t Intellectual Property a subject tested on the California Bar Exam?

Bar Exams in General

For those who are unfamiliar with the process in the United States, students who have completed law school must pass a state bar exam before they are allowed to practice law in that jurisdiction.  (One exception is Wisconsin, which automatically admits graduates of Wisconsin law schools to the Wisconsin Bar.)  Each state bar creates its own exam, with the exception of the one day multiple-choice portion, which is the same nationally.  The multiple choice section covers the basic subjects: property, torts, criminal law, contracts, constitutional law and evidence.  These and other subjects chosen by the state bar are tested in written portions of the exam.

The Bar Exam in California

In California, the other included subjects are: civil procedure, professional responsibility, community property, wills and trusts, business associations (corporations, partnerships and agency), and remedies.  Presumably, the Bar has chosen these subjects because they are areas with which all attorneys will at some point come in contact.  Notice that intellectual property is not included here.  It should be.  Intellectual property is important enough in this jurisdiction that all attorneys should have at least a cursory familiarity with it.

IP is Extremely Important in California

This is California.  Home to Hollywood, to a very large portion of the United States music industry.  Home to Silicon Valley and a constant myriad of start-ups.  Home to wineries and commercial farms.  Home to a number of research and development universities, and home to forward-thinking organizations working on intellectual property reform.  Patents, trademarks and copyright, they are a vital part of everything that makes California California.

Just like the subjects included on the Bar Exam, intellectual property is an area with which nearly every attorney will need to work at some point in their careers.  For corporate attorneys, the usefulness is clear.  The most valuable asset in many companies is the company’s IP portfolio.  It’s easy to see how this is especially true in Hollywood, the music industry and Silicon Valley.  IP assets are also important for the wineries and farms, the trademarks and trade dress that identify the products and secret processes used in the production.  (Not to mention the fun little geographical indication issues that arise because many California wineries insisting on calling their sparkling wine “California Champagne,” much to the chagrin of the rest of the world.)
[Image: Sign in San Francisco]

For other practice areas, the usefulness of basic knowledge of intellectual property might not seem so clear.  But, it is useful.  Criminal attorneys need to know about IP.  Whether defending or prosecuting a criminal infringement case, the attorney needs to know something about the crime at issue.  Family law and probate attorneys need to know about IP.  Copyrights and patents are personal assets that can be included in divorce divisions or passed down at death.  How can an attorney advise their client regarding the disposition of these assets if the attorney doesn’t understand the assets’ limited life-time or how the client can receive value from the assets?

Ease of Adding IP to the Exam

The way in which intellectual property touches so many other areas is not just the reason why to include the subject, it is also a benefit that would help the Bar examiners include the subject on the exam.  Because intellectual property is so interrelated to many other areas of the law, it would be easy for the Bar examiners to create cross-over questions, mixing intellectual property aspects into questions about other subjects.

Are there some attorneys who will never encounter an intellectual property issue?  Yes, just as there are some attorneys who will never need to deal with business associations or never file a case in civil court.  However, that does not lessen the importance of the subject.  Intellectual property touches on too many aspects of life, especially in California, for attorneys to not understand the basics.

Video Stays, Video Goes – YouTube and Infringing Videos

“How come some YouTube videos that use copyrighted songs get to stay online and some get taken down?”  It is a question this Ipper has heard often lately.  Good question, and one that was recently answered by YouTube’s Chief Counsel, Zahavah Levine, at last month’s Supernova in San Francisco.

Standard Procedure for Infringing Works

Those familiar with the DMCA (Digital Millennium Copyright Act) know that there are provisions in the copyright law that allow safe harbors to third-party websites on which users may place infringing content.  (17 USC § 512.)  these safe harbors protect the website from liability for users’ infringement.  To qualify a safe harbor, websites must have a notice and take down procedure.  Simplified, notice and take down works like this:  Rightsholders provide notice to the website that the site contains material infringing their copyright and the website takes down the infringing material.  The user who posted the material can send a counter notice to the website explaining that the material does not infringe and the website should not have removed the material.  The website then replaces the material.

YouTube’s Extra Twist

In addition to having a standard notice and take down procedure as required for the Copyright Act’s safe harbors, YouTube also has another notice-type system that gives rightsholders more control over their copyrighted works and YouTube users the ability to post more works, or UGC (user generated content).

Rightsholders who are concerned that their works might be infringed in videos uploaded to YouTube may submit their works to YouTube for inclusion in a special library.  YouTube uses technology to scan each video uploaded to the site and check the video for matches between content in the video and content in YouTube’s special library.

Once a match is made, YouTube follows the directions given to it by the rightsholder.  The rightsholders have a number of options regarding what YouTube should do when it discovers uploaded content that matches a copyrighted work in the special library.  Rightsholders can opt for actions such as having the videos removed, receiving royalty payments or advertising revenue from the advertisements run next to the uploaded video, and having links to places where a viewer can purchase authorized copies of the copyrighted material used in the video.  [This is why the “Forever” wedding dance video was able to become viral and make Chris Brown lots of money, instead of simply being removed for infringement. More on the wedding dance video here.]

After than, a notice is sent to the video uploader notifying the uploader of the match that was made.  The uploader is offered an opportunity to dispute the action taken.  For example, the uploader might claim fair use or having a license to use the copyrighted material.  YouTube informs the rightsholder about the dispute and gives the rightsholder the opportunity to review the video.  From there, the rightsholder can choose to follow the regular DMCA notice and takedown procedure.

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/.