Know your rights and get them in writing ahead of time – “Friday” video cautionary tale

The popular “Friday” music video, produced by ARK Music Factory and sung by Rebecca Black, was removed from YouTube apparently as part of a dispute regarding the rights to the video.  It is unclear whether Ms. Black or her mother signed any sort of contract with ARK, but if something was signed, it appears that it was not clear about ownership of the various rights involved in such a project.  Whether you think ARK is unfairly exploiting Black or that Black is asking for more than she paid for, one thing is clear: Both parties would have benefited from a clear contract at the outset of their relationship.

If you put time, energy or money into any kind of creative project (e.g. writing, painting and other graphic arts, video, music), it is important to know your rights and to know your options for using, licensing or selling those rights.  Rights of Publicity, Copyright and Trademarks are just a few areas to consider and each of these has very different rules regarding what is protected, how it is protected and how rights are transferred or licensed.  Make sure you know your rights before collaborating with anyone on creative works.

Tattoo artist sues makers of Hangover 2 for copyright infringement

See the ABC Story here.  Moral of the story?  If you get a tattoo, negotiate a copyright assignment or license – especially if you work in the entertainment industry!

Copyright law impedes access to archive of 1930s Jazz Recordings

This story is another example of the failure of current copyright law in the United States to produce one of its primary objectives: “the creation and dissemination of information.”  See Eldred v. Ashcroft, 537 US 186, 244 (2003) (J. Breyer dissenting); See also Harper and Row v. Nation Enterprises, 471 US 539, 558 (1985).  While the Supreme Court, in Eldred, has larger washed its hands of enforcing this constitutional objective, we should hold Congress and the President to their constitutional duty.  Here’s hoping another Orphan Works bill (like the Shawn Bentley Orphan Works Act of 2008) is timely introduced, passes both houses and is signed into law.

FCC adopts “traffic rules.”

The FCC adopted rules many are dubbing Internet “traffic rules.”  This term is appropriate because it falls far short of mandating net neutrality.  According to news stories, the new rules would merely ban Internet providers from completely blocking content, but would allow them to discriminate among traffic depending on the type of traffic and who was providing the content.  Even these tepid rules are expected to be challenged in court, given many Republican’s resistance to any regulation of the Internet and given prior successful attempts to limit the FCC’s authority to regulate the Internet.

With Republicans in control of the House, it is highly unlikely that Congress will act with regard to net neutrality any time within the next couple of years.  Ultimately, however, Congress should set rules for net neutrality so that all providers and consumers have some certainty with regard to providing Internet services.  Ideally these laws will provide for strong net neutrality principles.  It is time for all to recognize that 1) the Internet is regulated via ICANN, and other organizations (mostly standards-setting bodies) and that 2) the Internet is and should remain a public resource.  No one person, country, company, or other entity owns the Internet, and no person, country, company, or other entity should be allowed to create a filter or bottleneck or any other obstacle to full access to the Internet based on monopoly or other coercive power.

Justice Department Taking New Stand on Gene Patents?

NPR reports that a Justice Department brief in a biopatent case signals a new direction for federal gene patent protection.  It’s difficult to tell from the story exactly what position the feds are taking, but it appears that they are rejecting the idea that a mere description of a gene sequence is sufficient for a gene patent.  If that is the case, it makes sense for at least two reasons.  First, the “products of nature” exception to patentability has been shrinking to near non-existence.  The line needs to be drawn here for genes or it won’t be drawn at all.  Second, as explained by Professor Bob Cook-Deegan in the NPR story, allowing such patents will block a number of new anticipated technologies.

EFF Helps NoBodyCases.com Fight Righthaven Copyright Suit

The Electronic Frontier Foundation is helping those targeted by so-called “copyright trolls” – people or companies that buy up copyright rights and scour the internet to find and sue alleged infringers.  The latest case (Righthaven v. DiBiase) involves a company called Righthaven LLC that purchased the copyright to various articles published in the Las Vegas Review-Journal (R-J). Righthaven sued a website called nobodycases.com, maintained by a former federal prosecutor who tracks murder cases where no body has been found.

One may wonder what’s wrong with this arrangement. Isn’t this just using the market to make defending your copyrights more efficient? A newspaper sells its copyrights to someone who is in a better position to enforce those rights. The new copyright owner finds infringers and sues. In the end, the infringer gets his just deserts, the newspaper gets some money to prop up its sagging sales as well as possible deterrence to other would-be infringers, and the new copyright owner gets a return on his investment. Ignoring any arguments about whether or not pure market forces are the best way to regulate property rights in general, there are at least a couple of reasons why assigning copyright rights to enforcers, as described above, is a bad idea.

First, the new copyright owner has different purposes and incentives with respect to the copyrighted content than does the author or publisher of that content. Of course this may be true in a variety of circumstances where someone assigns his or her copyright. However, in the enforcer scenario, the sole purpose of the copyrighted content for the new owner is as a tool to create money by suing others for copyright infringement.

The news journalist and publisher of the copyrighted content are primarily interested in getting the story to the public. They, of course, also want to get paid for providing this service to the public, but the reason for writing and publishing is not solely to make money.  Even to the extent that writing and publishing is for the purpose of making money, that money is based on subscriptions and advertising where the benefits to all are arguably realized. The copyrighted content is a product purchased by subscribers. The author is rewarded, as envisioned by our copyright legal regime, as an incentive to create new works. News journalists and publishers also want recognition for good reporting. They want sway in the local community. They want respect for providing a valuable public service necessary for the operation of a healthy democracy. Additionally, as with many copyrightable works, certain re-printing or distribution for which there is no direct compensation, may enhance the value of the work or otherwise benefit the author (e.g., a teacher making copies of an article for journalism students as an example of good news reporting, or the publisher handing out free papers as a way to encourage people to subscribe). All of these purposes and incentives are properly weighed by a news organization in evaluating when and how to assert copyright claims against others. In many cases, one can envision a news organization moving cautiously when evaluating potential copyright claims. For example, as a beneficiary of our strong free speech protections, a news organization may recognize first amendment rights of others to use quotations and other content from its articles. Or a news organization may be reluctant to sue a local charity for posting one of their articles on its website, out of an understandable fear of negative public reaction to such a lawsuit.

The new owner of the copyrighted content (the “enforcer owner”), however, is not constrained by any of these purposes or incentives.  In fact it has an incentive to maximize its profits by suing any possible infringer from which it thinks it can extract any money. Unlike the owner of real property, there is no incentive for this enforcer owner to use the property for its intended purpose. Once purchased, there is no cost to the enforcer owner for merely sitting on the copyright and searching for possible infringers.  The owner of real property, on the other hand, is losing money to taxes, upkeep, and the like, when the property is left vacant and unused.

Second, because alleged infringement of copyright involves expression, the right to free expression is implicated.  Combined with the incentive to pursue any possible infringers, as described above, and the inexact contours of copyright infringement, this is likely to lead to many cases that improperly squelch speech which is likely to lead to improper self-censorship and chilling of speech.

So have these horribles come to pass?  I believe that the answer is “yes.”  Let’s look at the facts of the DiBiase case as an example. Thomas A. DiBiase, a former U.S. Assistant Attorney, runs a website at nobodycases.com called “No Body Murder Cases.”  He posts information on his website regarding murder cases in the United States where no body has been found.  He collects no money through his website, and apparently does not even solicit any business through the website.  He has provided consulting to law enforcement in the U.S. and Canada for free.  Mr. DiBiase posted on his website an article that was published in the Las Vegas Review-Journal about the conviction and sentencing of a defendant in a murder case where the victim’s body was never found.  The article was posted in it’s entirety, including both the name of the author and the publisher, as well as the copyright notice.  Righthaven is suing DiBiase for $75,000, which is the maximum statutory damages for copyright infringement.  Righthaven is also requesting that DiBiase relinquish the nobodycases.com domain name, when there is no such remedy available in the copyright statutes.  I agree with EFF counsel Kurt Opsahl, that seeking the defendant’s domain name is likely part of Righthaven’s strategy to get defendant’s to settle.

Is this likely a case of fair use? Yes. Even though the fact that the entire article was posted weighs against fair use, (the amount and substantiality of the portion used in relation to the copyrighted work as a whole, 17 U.S.C. §107 (3)), every other fair use factor weighs heavily in favor of a finding of fair use (factors (1), (2), and (4) of Section 107). Is it absolutely a clear cut case where Righthaven’s attorneys will be sanctioned for pursuing a frivolous claims? Probably not. Any case that involves the copying of the entire work is likely sufficiently meritorious to avoid sanctions. Also, any case that involves the weighing of fair use factors implicates the amorphous nature of copyright law and is likely sufficiently complicated that considering settling is almost always advisable to avoid an adverse decision and the attorney fee award that typically goes comes with it.  So the bottom line is that Righthaven likely has a losing claim, but suing makes economic sense because 1) this is just one of many suits they have filed in hopes of recovering significant statutory damages, and 2) the risk to Mr. DiBiase of having to pay a large money judgment and attorney fee award if he does not settle is significant, if not great.

Is it likely the Las Vegas Review-Journal would not have sued Mr. DiBiase if it had retained its copyright?  It is impossible to say, but given the free speech implications and the fact that Mr. DiBiase provided clear attribution to the author and publisher of the article, I doubt the newspaper would jump right to an infringement lawsuit.  If I were advising the R-J, I’d likely tell them to commend Mr. DiBaise on the work he does and kindly ask for a link back to their website.

Good article about the meaning of “open” and “open source” software

Wired Epicenter has an interesting post about how open is Google’s Android.  Much of what is criticized seems to be the product of the phone carrier’s restrictions.

Nobel Peace Prize for Linus Torvalds?

Evidently some have floated the name of the creator of the Linux operating system (more accurately, the creator of the kernel for the GNU/Linux OS) as a candidate for the Nobel Peace Prize.  At first, it may seem far fetched, but Linux has allowed developing economies to benefit from world-class robust software without having to pay huge licensing fees to Microsoft and other proprietary software vendors. GNU/Linux, along with Apache (another open source program) run a majority of web servers.  The creation and maintenance of the GNU/Linux operating system is a model of how peer-production can be major source of a very valuable economic good.

I say he deserves it.

Abolish copyright and patent law?

I am currently reading James Boyle’s The Public Domain, which is one of an increasing number of compelling books and law review articles that caution intellectual property policy makers to consider the negative effects of the ever increasing scope of protection for rights holders.  James Boyle is no anti-IP crusader.  He believes IP law performs an important role in innovation if conceived and implemented correctly.  No author I have read has gone so far as to suggest the abolition of patent and copyright laws, until now.  It appears that Professors Michele Boldrin and David K. Levine, two economists from Washington University in St. Louis, are making that very argument in their book Against Intellectual Monopoly.  I say that it “appears” that they are making this argument, based on the statement in their video press release that, “from a public policy view, we’d ideally like to eliminate patent and copyright laws altogether.”

I haven’t read their book yet, but it appears that their argument is a little more nuanced.  The book seems to be primarily about making the case that the current intellectual property scheme for copyrights and patents is broken beyond repair, is stifling innovation and creativity, and should be radically restructed.  I wonder if they have given much thought to the types of business models that may transform industries that have traditionally relied on IP law, as alluded to in Cory Doctorow’s recent essay which I blogged about here:  http://askinnerlopata.wordpress.com/2009/02/22/the-death-of-traditional-media/?

Does Amazon’s Kindle 2 audio function infringe an author’s copyright?

As has been reported elsewhere, the Author’s Guild claims that the Kindle 2 audio reader function infringes an author’s copyrights when that author has only authorized eBook distribution, and not specifically digital audio reading. As this informative Ars Technica article explains, the viability of this argument turns on whether the digital reading amounts to a derivative work. Although there is no statutory requirement that a derivative work be fixed (as is required of original works), some courts have found that the alleged infringement must be in a “concrete form,” which presumably would not extend to the on-the-fly digital reading function in the Kindle 2.