Gwiz's Favorite Techdirt Posts Of The Week

from the golly-gee-whiz dept

This week's favorites post comes courtesy of Gwiz.

I have to admit that when I first said I would give the Favorite Posts a shot, I didn't realize how hard it would be to pick a few favorites from so many interesting articles. I happened to luck into a shorter week due to the holiday and I thought it might be easier, but not so much. Anyway, without further preamble, here are my picks for the week:

As an average working stiff with no vested interest in the industries usually discussed on Techdirt, my interests tend to lean towards the articles that deal with the slow erosion of things I hold dearly, like privacy, due process and protection against unreasonable search and seizures. The story about Austrian police seizing computers used as a Tor exit node was especially interesting to me. I found the initial discussion concerning anonymity on the internet to be very enlightening. This article also spawned an interesting phenomena in the comment section when one of the commenters voiced an extremely distasteful view of pedophilia. The subsequent reaction of the Techdirt community to this commenter became a very good argument in itself as to why the internet really is not a wild west that needs to be regulated and can do a fine job of policing itself.

Along the same lines, we had a few articles concerning PROTECT IP and the technological implications of this bill, which actually made me go and read the white paper written by some of the most knowledgeable people in regards to the DNS system. And, as an added bonus, we got to see a video of Mike discussing this issue. We also had the RIAA more or less attacking the public domain and telling us that it really has no value. At least, to offset that to some degree, we had the Polish Prime Minister realizing that things funded with public monies should be in the public domain. We need more thinking in that direction.

Making an account on any website is something I rarely do, but I felt compelled to register a profile on Techdirt for one main reason, the generally high level intelligence and mostly civil debates that happen in the comments section here. I have learned quite a bit from reading both sides of the debates and have on occasion had to revise my initial stance on issues because of it. The article about the arrest of people dancing at the Washington Memorial was one such post. When I last looked there were over 350 comments and the debate over civil disobedience and the reactions by law enforcement. Unfortunately, since I needed to keep abreast of all of the Techdirt articles this week, I haven't finished reading though them all, but what I did read was fascinating.

On a brighter note, it's good to see a body such as the UN acknowledging that the three strike laws and ACTA pose civil rights problems.

And lastly, on the humorous side of things, I found it very funny to see two fully grown companies acting like children on the playground and the Malaysian man who was required to apologize 100 times on Twitter for defaming someone, kind of like a modern day equivalent of writing "I will not say bad things about Susie" on the chalkboard.

Well, that's it for my Favorites this week. I hope you enjoyed them and it's back to lurking in the comment section for me.

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Record Labels, Once Again, Freak Out About Anyone Making Their Content Useful

from the moving-on... dept

Another day, another story of the major labels freaking out that someone (for free!) has helped make their content more useful and valuable. About a week ago, I was one of the folks who passed along the news (via Twitter) of a new service called Youtify, which took the YouTube API and built a neat media player on top of YouTube that looked quite a bit like Spotify, the popular music service that's not yet available in the US. The concept really isn't all that new. Muziic has been around for years, and has a YouTube-based media player, and TubeRadio has a YouTube-based music player that looks just like iTunes. Honestly, TubeRadio and Youtify are really quite similar, except one uses the iTunes look and feel, and the other uses the Spotify look and feel.

Either way, it's a pretty useful and neat setup for listening to and discovering new music on YouTube.

So, of course, the labels have to kill it. Adam Singer points us to the news that just days after Youtify's launch started spreading... the major record labels have somehow blocked their music from appearing. Note that most of this is via Vevo -- the major label-owned service for posting videos to YouTube. In other words, these are authorized videos that have been uploaded and made available on purpose by the record labels. And... then the Youtify guys went and made an interface to make it easier to access and consume that music... and the labels/Vevo freak out and block them.

Because, apparently, that's how the major labels roll. If something makes the music more enjoyable and more valuable for free, but doesn't "pay" the labels, then too freaking bad. Is it really any wonder why the major labels are struggling?

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How Important Is It To Preserve Our Digital Heritage?

from the the-archive-team-at-work dept

Having recently been part of an effort to preserve videos on Google Video, in light of its announced shutdown, it's made me more aware how brittle our current culture is, with many many artifacts available only in digital form. There are conservation efforts such as the aforementioned one, part of a larger group called Archive Team. Google changed its mind and promised to keep Google Video online and try to move as much as possible to YouTube where it has permission from the original uploader. This is, obviously, a win for the archivists, who kept the effort going just the same and are still in the process of uploading all of Google Video to archive.org.

Contrast this with Friendster, where the Archive Team project was unable to save everything before the end of May, when everything was set to be deleted. Much has been downloaded and it will still give a good picture of what this early social network was like. Similarly, the Archive Team was able to rescue much, but not all of GeoCities, before Yahoo shut that down last year, releasing its collection as a massive 1 TB bittorrent file.

Now you may ask yourself is Friendster (or even GeoCities) worth saving? Answering that question purely myself, I'd say no, but I have no connection with those sites. Looking at the question however from the perspective of people who have spent many hours building these profiles and interacting with each other, I can see there's clearly value there to those who used them. Answering instead as someone with a deep interest in history, it's not for us to say what will eventually prove worth saving. Instead, that's something for the historians, archeologists, sociologists and other interested parties in the future to decide. But they can't do that if the information isn't even there.

How often have we not wished more of a particular point in our history had been preserved? Ironically many of the analog writings of our past are in a better state than some of our digital ones, even when it's often pointed out how easy it is to make bit-perfect copies of something in this day and age.

All of this, leads me to ask the following questions:

• Do you agree the digital aspects of our culture should be better preserved?
  
• Should we have, maybe even one on each continent or in each country, a modern Library of Alexandria? (identical copies in different places to prevent 'a fire' from destroying it)
  
• What would such a world-wide archival effort look like, technologically?
  
• What should we do about copyrights and patents (and DRM) that might get in the way of preserving our heritage?
  
• How do we go about archiving software for a computer that's available only in a museum, to preserve interactive access?
  
• What about the proliferation of file formats? Do we transform everything into a canonical form where we can, or do we store the original along with software to interpret?
  

I think we owe it to ourselves that this generation doesn't look like a black hole when viewed from the future, and by extension, I'd like to make it easier on future historians to learn about us than it has been for us to learn about previous societies (e.g. Sumerians).

I'll start off by saying that though little personal correspondence has been preserved of earlier times, we should recognize the right to privacy and any such posited archive would be allowed to include private communications only if you explicitly opted in. Valuable though these are for historians, if we preserve as much as we can of the digital domain, enough can be inferred from context that this would be an unwarranted intrusion.

But what about the wider issue of preservation of public content that can be wiped out by shutting off a power switch?

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Activity Is Not Influence

from the tweet-this! dept

I recently wrote about my concerns with the rise of services that try to measure "social media influence" by giving it a number. I had a few concerns about this, including the fact that trying to put a number of something that is not quantifiable inevitably leads to problems, but also in that this would lead people to change how they use certain tools. I don't use Twitter for the sake of "influence," but as a communications vehicle. Yet, that harms my "scores" on these services and gives me incentive to do things that I'm not interested in doing.

It appears I'm not the only one concerned about this. Jeff Nolan points us to a writeup by Mack Collier, in which he express similar concerns, specifically noting that these services measure activity, which is different than influence -- and, in fact, can be antithetical to influence. He notes this because one of these services, Klout, told him his "score" was dropping, and the way to increase it was to tweet more things:

Essentially, Klout and Empire Avenue are measuring your level of social media activity, not your level of online influence.

Simply sharing more content and engaging with my network isn’t going to make me more influential over them. In fact if it’s not the type of content and engagement that they are looking for, my influence over them will fall, not rise as I become more active.

And yet, because these sites and their made up numbers declare that they're measuring "influence" lots of people just believe them. It's really unfortunate, and it's going to lead to people changing their behavior in ways that don't increase influence at all, but decrease it.

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DailyDirt: Biodegradable Materials Are Good For... Cars?

from the urls-we-dig-up dept

Lots of folks are working on projects to make car parts out of biodegradable materials. Growing car parts sounds like a cool idea, but there are still some bugs to be worked out (sometimes literally). Here are just a few examples of green materials that might make it into cars someday.

• Latex from dandelions can be used as a plastics modifier for various car parts such as floor mats, cup holders and interior trim pieces. That's nice, and dandelions can make a nice salad, as well... [url]
• Biodegradable car parts could be made with natural fiber composite materials. But will the cars biodegrade before or after 10 years or 100,000 miles? [url]
• Adding soy oil to rubber sounds like a good idea -- until little woodland creatures start chewing on your electrical wiring. Rabbits have been known to eat through that new-car wiring... [url]
• Getting the keratin from feathers into plastics could help turn a waste product into useful materials that aren't made from petroleum. But all the 3 billion pounds of leftover chicken feathers won't even put that much of a dent in petroleum-based plastics production. [url]
• To discover more interesting car-related content, check out what's driving around StumbleUpon. [url]  

By the way, StumbleUpon can recommend some good Techdirt articles, too.

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French Court Says Merely Having The Word 'Torrent' In Your Domain Means You Are Encouraging Infringement

from the legal-uses,-anyone? dept

We've noticed before how many copyright maximalists make claims that suggest they believe that all BitTorrent is used for is infringement, even though it is used as an efficient distribution mechanism for all sorts of legitimate offerings. However, a court in France has apparently decided to punish the admin of a forum/search engine for torrent files, in part, by claiming that having the word "torrent" in your URL means that you're encouraging infringement:

The papers include a statement from the Court which declares that “..the names of these sites [when they include the word 'torrent'] encourage illegal activity. Torrent sites are accessed by users of the BitTorrent protocol which has a main, if not unique purpose, of enabling downloading of copyright protected works.”

In a nutshell, having the word “torrent” in a domain name can be reason enough to presume bad intentions.

That's pretty ridiculous, as there are sites that use the word "torrent" that have nothing to do with infringement. Seems like yet another case of people who don't understand technology making decisions that seriously impact everyone.

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FOIA Request Unveils Secret CIA-Produced Documentary About CIA Agents Captured & Held In China For Decades

from the what's-the-copyright-status? dept

This is fascinating. Apparently, a US plane with CIA agents on board flew into China in 1952, trying to recover a spy in that country. However, the plane went down, and the Chinese captured the two CIA agents who survived the crash... and then kept them until 1971 and 1973. That, in itself, is an interesting story. But making it even more interesting is that the CIA had a professional documentary made about the story (including reenactments), intended for internal audiences within the CIA. Yet, thanks to a Freedom of Information Act request by the Associated Press, the CIA is now planning to release the entire (short) movie on YouTube. Of course, as a work created by the government, it should be in the public domain, though I'm curious to see if that's officially acknowledged anywhere.

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Group Asks FCC Commissioners To Promise Not To Go Work For AT&T; If They Vote To Approve T-Mobile Merger

from the name-and-shame dept

Following the story of FCC commissioner Meredith Atwell Baker joining Comcast as a lobbyist just a few months after approving that company's buyout of NBC Universal, the group Free Press is asking the remaining FCC commissioners to take a pledge that, if they vote to approve the AT&T;/T-mobile merger, they won't then take a lobbying job with AT&T.; Of course, if any of them took the pledge, it's not clear what's to stop them from then breaking the pledge...

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Copyright Reform

from the artists'-point-of-view dept

This week at Mimi & Eunice I'm writing a Haiku for every comic, starting with this one:

Real artists don’t wait
For lawyers and officials
To give permission.

 

42 Comments | Leave a Comment..

Apple Tries To Patent A 'Solution' To The 'Analog Hole': Transmitters That Block Your Camera From Working

from the you'll-never-photograph-steve-jobs-again... dept

A few folks have sent over the news of an ongoing attempt by Apple to patent a sensor system that would allow people to set up transmitters that would send a signal to mobile phones that would prevent the camera from working.

By pairing an infrared sensor with the camera already on board, portable devices could receive data from transmitters placed, well, wherever. Beyond simply blasting out text and opening links like a glorified QR code, transmitters could disable certain features, such as the camera, to prevent recording at movie theaters and music venues. If completely shutting off the cam seems a bit heavy-handed, watermarks can also be applied to photos identifying businesses or copyrighted content.

The patent was filed in 2009, which seems pretty late. I remember having conversations about how such things were technically feasible back in 2003 or 2004, just as cameraphones were starting to catch on, and there were a few early moral panics about them. It's difficult to see how this should be patentable, considering how widespread the idea was (along with discussions on how it could be implemented) way before this patent application was filed. Of course, the bigger issues are that (1) there are always going to be easy ways around that kind of thing, and (2) for theaters it seems like a pretty expensive proposition for pissing off your customers. Of course, it's not worth reading too much info into patents like this as an indicator of where Apple is going. The company files lots of patents, many of which are never really touched.

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Entertainment Industry Lawyer: The Public Domain Goes Against Free Market Capitalism

from the say-what-now? dept

We've been doing a series of posts about the Copyright Office's hearings on copyright for pre-1972 recordings, where we already noted with some amusement how the RIAA is suddenly afraid of federal copyright law, preferring the ridiculously more draconian state copyright laws that avoid both the public domain and termination rights. On top of that, we've pointed out that the RIAA's representative flat out claimed that there's no value in the public domain.

From Copycense's tweets, there was one other attendee who seemed to be even more extreme: Ivan Hoffman. Frankly, I'd never heard of the guy before, but you can visit his masterful website here, which looks like it was designed in the early 1990s and never updated. However, I must warn you that in the mind of Ivan Hoffman, you may be violating his copyrights just visiting the site. That's because, at the bottom of the website, it states:

© Copyright 1992-2011 by Ivan Hoffman. All Rights Reserved. No portion of this site, including this home page and any of the separate pages, may be copied, retransmitted, reposted, duplicated or otherwise used without the express written permission of the copyright proprietor. This site is the subject of registered copyrights.

A couple things on this. First, the statement borders on copyfraud (some might say it goes beyond the borders), in that copyright does not allow the rights he has claimed. You absolutely can copy portions of his website if you're using them (as I am here) in a manner consistent with fair use, or if the specific content copied is not actually subject to copyright (and one can make an argument as to whether or not the copyright statement above, itself, is actually subject to copyright). But, even more to the point, if you simply visit his website, you have "copied," "duplicated" and "otherwise used" his website without the express written permission. I'm sure someone could argue the retransmission and reposting too. After all, when you click on the link above (I hope that's not retransmitting or "otherwise using!") you are instructing your computer to make a local copy on your hard drive... all without his express written permission.

So, anyway, that gives you a sense of who we're dealing with here.

What did Hoffman have to say? Well, there were two separate points that seemed worth covering, which I've embedded below via Copycense's tweets, and assuming that Copycense's reporting is accurate (and I have no reason to believe otherwise), it makes you wonder why the Copyright Office would have someone like him speak at their hearings. Specifically, he appears to claim that there should be no public domain, that copyright should last forever, and the very idea of the public domain is anti-free market. The specific statements in Copycense's tweets:

Hoffman: We don't take houses or cars back, but we take back copyrights. Why?

Hoffman: All of this is contrary to free market capitalism

This is, of course, hogwash that anyone who actually understands either the history and intention of copyrights or basic economics would recognize makes no sense. On the reason for the public domain, there's a rather excellent book on the subject that Hoffman might want to read. But the shorthand reason should be clear to anyone who understands copyright: it was to "promote the progress of science," by which the purpose is to benefit the public by giving them access to more content. Arguing contrary to that is simply twisting copyright law away from its core purpose. Furthermore, the basic ingredients of culture and content are earlier works. If we locked up everything, we'd have a lot less content and culture, entirely contrary to the Constitutional reasons behind copyright law. That a copyright lawyer would argue otherwise, to the Copyright Office, no less, is stunning.

And don't get me started on the ridiculous suggestion that putting works into the public domain is "contrary to free market capitalism." Which sounds more like free market capitalism: a world in which there is no government monopolies and interference for people to create and build... or one in which there's a central authority granting monopolies and changing those terms at will?

I asked Copycense if he could clarify what Hoffman was saying, and if (maybe? please?) these statements were sarcastic. Copycense says he's positive they were not sarcastic, and thinks Hoffman just meant that changing the copyright terms on anyone violates the Constitution. In fact, in support of that position, Hoffman also provided this lovely nugget, apparently:

Hoffman: "I have a problem in abrogating contract rights that have been in place for 30, 40, 50 years"

He, of course, is talking about the idea of moving pre-1972 works away from their current status and over to existing federal copyright law. But... if he's so against abrogating contract rights, then, um, shouldn't he be hopping mad about all of the retroactive copyright extension out there? Shouldn't he note that the composition copyrights on all of those songs should be in the public domain? After all, the contract offered to the musicians, at the time those songs were written, was that they would be getting exclusivity on the work for 28 years, followed by another 28 years if they reregistered. In exchange for granting them this monopoly, the public would get the work at the end of that period of time. And yet... with the 1976 Copyright Act, the government totally "abrogated" the contractual rights of the public, and unilaterally extended the copyright. It's really quite incredible that one can claim, with a straight face, that lengthy copyright on old works through extension is fine, but a minor move to put certain works under copyright is somehow violating contract law.

So, it appears that he thinks copyright should last forever... and he's against changing the "contract" on copyright related terms... unless the change screws over the public and completely tramples the existing agreement they had.

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UN Report On Human Rights Condemns Three Strikes As Civil Rights Violation

from the nice-to-see dept

Via Michael Geist, we learn of a new UN report on Human Rights, that (among many other things) talks up the importance of free speech online (pdf), worries about the expansion of third party liability laws as a tool to suppress speech online, and is generally concerned about government attempts to censor the internet. Where it gets even more interesting is where it pretty clearly states that three strikes or other efforts to kick people off the internet for file sharing is a trend it does not approve of at all:

While blocking and filtering measures deny access to certain content on the Internet, States have also taken measures to cut off access to the Internet entirely. The Special Rapporteur is deeply concerned by discussions regarding a centralized “on/off” control over Internet traffic. In addition, he is alarmed by proposals to disconnect users from Internet access if they violate intellectual property rights. This also includes legislation based on the concept of “graduated response”, which imposes a series of penalties on copyright infringers that could lead to suspension of Internet service, such as the so-called “three strikes- law” in France and the Digital Economy Act 2010 of the United Kingdom.

Of course, supporters of such laws will downplay the significance of this, but they might not realize just how much influence these types of reports can have over time. Either way, it's nice to see UN officials recognizing that yes, copyright can and often is used for censorship.

The report goes on to worry about ACTA as well:

Beyond the national level, the Anti-Counterfeiting Trade Agreement (ACTA) has been proposed as a multilateral agreement to establish international standards on intellectual property rights enforcement. While the provisions to disconnect individuals from Internet access for violating the treaty have been removed from the final text of December 2010, the Special Rapporteur remains watchful about the treaty’s eventual implications for intermediary liability and the right to freedom of expression.

We keep hearing from supporters that there are no "free speech" concerns here, and yet the UN clearly sees the issues. Seems like ACTA supporters have a serious case of willful blindness.

On top of that, the UN report points to all sorts of other serious concerns that we've raised, including how "notice-and-takedown" provisions such as those found in the DMCA are open to widespread abuse.

In the recommendations section, the UN report is pretty clear and damning. Kicking people off the internet is a violation of existing civil rights:

The Special Rapporteur considers cutting off users from Internet access, regardless of the justification provided, including on the grounds of violating intellectual property rights law, to be disproportionate and thus a violation of article 19, paragraph 3, of the International Covenant on Civil and Political Rights.

Now watch as our usual "law & order" commenters rush to talk about how the International Covenant on Civil and Political Rights can be ignored as it's no big deal.

Finally, the report actually (amazingly) goes so far as to suggest countries "repeal or amend" any law that would kick people off the internet for infringing:

The Special Rapporteur calls upon all States to ensure that Internet access is maintained at all times, including during times of political unrest. In particular, the Special Rapporteur urges States to repeal or amend existing intellectual copyright laws which permit users to be disconnected from Internet access, and to refrain from adopting such laws.

While I doubt the report will have too much impact, it certainly is nice to see it getting some significant attention. It's too bad, but you can bet that politicians around the globe will simply ignore it... and when asked about it, will instead just point to debunked industry claims of "losses" to back up their ongoing push towards censorship and civil rights violations in the name of protecting the obsolete business models of a few industries.

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Would People Stop Using Mobile Phones If More Evidence Shows Them To Be Carcinogenic?

from the just-wondering dept

Lots of folks have been talking about the recent WHO report which says there's now enough evidence to indicate that mobile phones are at least somewhat carcinogenic. Of course, for years there have been ongoing dueling studies on this topic, with plenty supporting this view, and plenty saying there was no such evidence. Frankly, I have no idea which side to believe, but am wondering: will this news actually cause anyone to stop using their mobile phones? I'm sure there will be a few people here or there who will go that far. For others, it may just result in them not keeping the phone so close to them all the time, or maybe even turning it off at times. But I'm curious to hear from anyone out there who actually plans to radically shift their behavior due to this report. Are you out there? Can you explain your thinking?

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Lady Gaga Says $0.99 Albums Make Sense, Especially For Digital

from the understanding-how-this-works dept

You may have heard that Amazon did a deal recently with Lady Gaga, in which it offered up her entire new album for $0.99. While Amazon did have some technical difficulties in making this work, it resulted in some mindless criticism, in places, that Gaga was "devaluing" her own work. We hear this argument all the time, when it comes to free music, as well -- where people suggest that giving away music "devalues" the music. This shows a fundamental misunderstanding of the difference between price and value. Just because something is cheap, it doesn't mean that the value is diminished.

In an interview with the Wall Street Journal, where Lady Gaga is asked directly about this issue, she almost seems offended, and notes that, especially when it comes to digital, pricing an album at $0.99 is perfectly reasonable, since it helps spread the music. After being asked if she thought her album was "worth" more than $0.99, she emphatically replied:

"No. I absolutely do not, especially for MP3s and digital music. It’s invisible. it’s in space. If anything, I applaud a company like Amazon for equating the value of digital versus the physical copy, and giving the opportunity to everyone to buy music."

This isn't too surprising, given Gaga's previously stated views on her use of free to get her music out there, as well as her encouragement of people to download unauthorized copies. However, it's nice to see her make this point again.

Now, to be fair, she also notes that Amazon covered "the difference" with these albums as part of a promotion -- meaning that she (well, her label) got more than $0.99, but that's a separate issue than the whole question of the "perception" from giving away the music at such a low price.

Later in the interview, she makes another point that we've been making for a while, which is that record labels certainly make sense for some people, but the exciting thing today is that you don't "need" the label any more. She points out that she certainly needs her label, which is great, but that many artists don't need to go that route, saying, "not everybody needs a record label" any more. She also points out that the really valuable thing she's done is build a really strong connection with her fans, and it's that kind of authentic connection that makes her audience so valuable. These are all points that plenty of us have been making for years, and it's great to see such a prominent musician making the same points.

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iPad 2 Price Drops From 'Arm And A Leg' To More Reasonable 'One Kidney'

from the true-price-of-early-adoption dept

From Shanghai Daily comes this somewhat tragic tale of tech desire gone horribly wrong:

A 17-year-old student in Anhui Province sold one of his kidneys for 20,000 yuan only to buy an iPad 2. Now, with his health getting worse, the boy is feeling regret but it is too late, the Global Times reported today.

Now, while most of us have desired the latest shiny new thing, few of us have had the courage to put one of our organs on the line for it. Maybe it's just the reasonable fear of unlicensed surgical procedures holding us back or the threat of being prosecuted for illegally harvesting our own organs. Either way, the bar has been raised and no longer will onlookers be impressed by our tales of camping outside the Apple store for 36 hours for a shot at the latest iWhatever.

While this student regrets his decision to go through life with a half-rack of kidneys, he's already built some wiggle room into his story:

"I wanted to buy an iPad 2 but could not afford it," said the boy surnamed Zheng in Huaishan City. "A broker contacted me on the Internet and said he could help me sell one kidney for 20,000 yuan."

A broker contacted him? Unless by "contacted him," he means "clicked on a Google ad for 'SELL YOUR KIDNEY NOW,'" I'm pretty sure the kidney seller made the first contact. I could be wrong. (The possibility is high. See also: this post.) Of course, this could mean he said something irresponsible like, "I'd sell a kidney to get one of those," in the wrong forum at the wrong time and someone "reached out." You never know.

Unfortunately for this student (whose lifetime stats currently read: iPad[s]: 1; Kidney[s]: -1) there may be little recourse available. The hospital where the removal was performed (Chenzhou No. 198) is "not qualified to perform organ transplants," meaning that even if said kidney is found, he'll need to talk another hospital into re-inserting Kidney A. The broker has also vanished, covering his tracks by turning his phone off. (That's not a punchline. It's right there in the article.)

When he returned home, his mother found out and reported to the police immediately. But they could not locate the broker whose cell phone was always powered off, the report said.

Well, I hope we can all take something from this experience and apply it to our own lives. For me, it's "temper your desires." Or, if you can't, at least perform the kidney-iPad exchange here in the US, where the court systems and ambulance chasers will be more than happy to help you argue that this is Apple's fault.

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RIAA Says There's No Value In The Public Domain

from the true-colors dept

While I've already written about the hearings for the Copyright Office concerning copyright on pre-1972 sound recordings, but I wanted to call out one particularly egregious and ridiculous statement from the RIAA. The RIAA's Jennifer Pariser claimed that there's no value to a work in the public domain. Apparently Pariser is unfamiliar with the works of Shakespeare. Or Beethoven. Is she serious? I mean, you could make the argument that it makes life more difficult to sell those works for the labels she represents, but those works have tremendous value. Pariser, of course, is famous for making ridiculous statements, sometimes under oath. Back when she worked for Sony-BMG she made some statements, on the stand and under oath, in the Jammie Thomas trial that were blatantly untrue. Only much later, after the jury had ruled, did the RIAA admit that Pariser "misspoke" while on the stand. One hopes she "misspoke" here as well, but I get the feeling she actually believes the blatantly incorrect statement she made.

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The One Situation Where Record Labels Fear Federal Copyright: Old Sound Recordings

from the keep-the-public-domain-away! dept

Last year, we were among those who noted a significant problem for sound recordings from about a century ago. While under federal copyright law, works published before 1923 are in the public domain, when it comes to sound recordings, it's a different story. That's because, for quite some time, Congress did not even believe copyright law could apply to sound recordings (which is kind of funny when you realize how many in the recording industry now seem to assume that copyrights on recordings are some sort of birthright). Instead, however, various state laws covered the gap... and did so by creating copyright laws that were even more ridiculous than the federal one. Because of that, many old sound recordings may never enter the public domain, or if they do it won't be for another 50 or 60 years. And, in the meantime, many of those recordings will disappear.

This is of big concern to those who wish to preserve and share the culture from a century ago. After this issue started to get some attention, the Copyright Office agreed to look into things and just held some hearings on the issue. Copycense attended the event and shared copious tweets on the events. As an experiment, I'm going to try to collate some of the more interesting tweets, embedded below, but provide commentary here. There are a few key statements that were made that I'll address in separate posts, but this one will cover the general discussions held during the day.

What becomes clear is that there's a big divide between the legacy industry (record labels & publishers) and librarians and cultural researchers who fear that these works are dying. The people actually concerned about preserving the works are horrified at what's happening, noting that culture is disappearing -- and predominantly impacting "people of color," whose work would be freely available for all to hear if their recordings had been covered by traditional copyright, or done in any other country. Others point out that if librarians can't preserve these works, they may disappear forever.

The response from the music business guys is ridiculous -- but expected. They insist that covering these works under traditional copyright would harm artists (seriously). Rich Bengloff, the head of A2IM (mini-RIAA), insisted that covering these works under federal copyright law would "bring less investment to roots music." Huh? How does that make any sense? The RIAA also worried that there would be "costs" associated with covering these works by copyright, and that it would "raise ownership questions." This is laughable. There are already "ownership" questions, which is why we're stuck in this quagmire in the first place. The RIAA pointed out that "we have concerns that federalization would negatively affect economic value."

That, of course, is ridiculous. First, the vast majority of the works we're talking about no longer are being marketed in any way shape or form. They're disappearing. The few works that are still an issue would still have federal copyright law, which is already pretty strict. The only works that would really have a change are those from before 1923, and that's fine. It's what's good about the public domain. Thankfully, one of the representatives from library groups pointed out that work that goes into the public domain "increases value to the public," which is what copyright is supposed to be about. Furthermore, as others quite reasonably pointed out, just because something is in the public domain, it doesn't mean you can't make money off of it. Just look how many publishers make money selling public domain works.

The RIAA then tried a different tack, insisting that the libraries concerned about all this are being silly, because "according to our research," no library has been sued over this issue. Isn't that comforting? Of course, you never know when a lawsuit might be filed, and the law clearly allows one to be filed. Most libraries wouldn't take that risk. Thankfully, the brand new Registrar of Copyrights, Maria Pallante, was quick to point out that simply wishing libraries become less risk averse is not a reasonable answer here.

Hilariously, the National Music Publishers Association people (NMPA) responded to a question about how taking away 50 different state laws, and moving these works under the single, well-known, standard of federal copyright law would make things "more confusing" by claiming that it would create "uncertainty." Huh?!? On the one hand, we have 50 different, confusing and rarely tested laws. On the other, we have federal copyright law and loads of caselaw. And the NMPA is actually claiming that federal copyright law would be more confusing? Even more ridiculous is Bengloff's claim that because under those state laws most works will go into the public domain in 2067, it "makes it easy to know what we're working with." Except we also know what we're working with under federal copyright law.

Later, Bengloff claims that there's a risk because labels have "invested millions of dollars" in these works. Again, this is misleading and ridiculous. The works still covered by federal copyright would remain in the control of the copyright holders. Furthermore, someone from the Library of Congress properly pointed out that the LOC (and other libraries) have also invested millions in trying to preserve these works. A representative from libraries reminded people that the public is a stakeholder here as well (though apparently not directly represented at the hearing).

Finally, at the end of the day, the real issue makes itself known. The labels and publishers want to avoid "federalization" because they know that this would bring back "termination rights" for the musicians themselves. As you hopefully know, the labels have been vigorously fighting the fact that the musicians themselves can reclaim their own copyrights by "terminating" the copyright assignment. A decade ago, the RIAA was able to sneak a law through Congress (literally by adding a line in the middle of the night that no one noticed until after the bill passed) that turned all such recordings into "works made for hire," which removed termination rights. An outcry from artists (for once) resulted in Congress fixing that "mistake" quickly, but the labels are still infatuated with this, and are gearing up for legal fights over termination rights soon.

It appears the real issue here is that under these state laws, there are no termination rights, meaning the artists themselves can't reclaim the copyrights, and the labels and publishers get to hang onto them for a few more decades. Putting things under federal copyright law would open up an opportunity for artists to get their copyrights back. And, we can't have that.

What's really appalling here is that the label/publisher representatives still pretend to represent artists here -- and one even declares that the labels interests really are aligned with artists' interests, when the subtext of this debate shows that's not true at all.

If you want to see many of the key tweets this is based on, and are reading this via RSS or on the front page, click "read more" below to see a sampling of the key tweets.

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People Concerned About Paul Allen's Ridiculous Patent Claims Gets USPTO To Begin Re-Exams Of His Patents

from the about-time dept

Last year, we covered Paul Allen's ridiculous patent lawsuit against a ton of tech companies. He claimed that all of these companies violated four incredibly broad patents he held:

• 6,263,507: "Browser for use in navigating a body of information, with particular application to browsing information represented by audio data."
• 6,034,652 & 6,788,314 (really the same patent, involving continuations): "Attention manager for occupying the peripheral attention of a person in the vicinity of a display device"
• 6,757,682: "Alerting users to items of current interest"

The details looked really silly, and the broad daylight continues to make them look silly. A bunch of folks who were concerned about this lawsuit (including various other developers and individuals) have chipped in -- and some of these completely volunteer efforts have prompted the USPTO to begin investigating the validity of these patents in the first place.

Of course, if the USPTO were doing its job properly, it wouldn't be approving so many bogus patents that just come back to haunt actual innovators.

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Entrepreneur Magazine's History Of Suing Entrepreneurs For Using The Word Entrepreneur Gets More Attention

from the entrepreneur-entrepreneur-entrepreneur dept

Last fall, we wrote about Entrepreneur Magazine's ridiculous attempt to get an entrepreneur/writer/speaker who was pitching to use the name "entrepreneurology.com" to give up the domain. Trademarking the word "entrepreneur" seems particularly ridiculous, and BusinessWeek recently ran an excellent article detailing Entrepreneur Magazine's history of suing entrepreneurs for using the word entrepreneur. It also, amusingly if somewhat tangentially, delves into the history of Entrepreneur Magazine's founder (who is no longer associated with the magazine), who was arrested at one point in his career for robbing banks. Entrepreneur Magazine and its lawyers were not all that happy to cooperate with BusinessWeek on the profile, noting that they didn't want to help a competitor, and also pointing to trademark lawsuits from BusinessWeek's parent company Bloomberg.

Either way, it does appear, tragically and ridiculously, that Entrepreneur Magazine has won some of these previous lawsuits against other entrepreneurs. However, the creator of Entrepreneurology took the initiative and sued for declaratory judgment after receiving his cease-and-desist letter from Entrepreneur Magazine -- and is trying to invalidate the trademark, claiming the word is generic and not at all associated with the magazine. Entrepreneur Magazine vehemently denies this, of course, but as BusinessWeek points out, the magazine's own legal fights have argued otherwise at times:

In the litigious precincts of intellectual property, the aggressor inevitably finds itself chasing its own tail—and EMI and its lawyers have actually tried to use the "generic" argument to their advantage. In 2008, Ernst & Young, one of the Big Four accounting firms, sued EMI in federal court in New York, alleging that the publisher violated its trademark for an Entrepreneur of the Year award. The dispute over the prize dates to 1994, when Ernst first sent EMI a cease-and-desist missive aimed at Entrepreneur's similarly named award. EMI fired back in a lawsuit in California that Ernst's award trademark cannot be infringed because "entrepreneur of the year" is a generic term. In the end, Ernst and EMI settled their differences confidentially and out of court. EMI changed its award name slightly (nominations for "Entrepreneur Magazine's Entrepreneur of 2011" are now open), while Ernst is celebrating the 25th anniversary of its trademarked Entrepreneur of the Year program.

Oh, and you may note one other oddity in the paragraph above. Entrepreneur Media Inc., refers to itself as EMI. You have to wonder how it's never been sued by the record label EMI, with which there could be actual confusion.

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Dan Snyder Helping Politicians Recognize The Importance Of A Federal Anti-SLAPP Law

from the thanks-dan... dept

We've discussed a few times in the past the need for a federal anti-SLAPP law, rather than the weak state-by-state laws against SLAPP lawsuits, which are filed mainly to stifle speech, rather than for any legitimate purpose. Earlier this year, in particular, we discussed how the lawsuit filed by Washington Redskins owner Dan Snyder against a DC-publication, highlighted the need for a federal anti-SLAPP law. If you don't recall, Washington City Paper ran a silly anti-Snyder article that was clearly tongue in cheek. It's standard fans-bashing-ownership fare, which was mildly amusing if you were a Redskins fan. Rather than letting it pass, Snyder sued. Oddly, he sued in New York, leading to speculation that he was trying to avoid anti-SLAPP issues, despite everyone involved being in DC and/or Maryland -- both of which have stronger anti-SLAPP laws. Eventually, he did refile the suit closer to home, but the whole thing has convinced at least one lawmaker to move forward on a federal anti-SLAPP statute. In fact, Rep. Steve Cohen wrote an article claiming that Snyder's actions, in an attempt to stifle the speech of reporters critical of himself, is a big part of what's convinced him of the need for such a law, which is being dubbed the PETITION Act ("Protecting the Expression and Transmission of Ideas and Thoughts In Our Nation Act" -- ugh, so sick of these kinds of names):

The City Paper’s column was admittedly harsh but well within the bounds of free speech, especially about a public figure. Snyder was understandably angry, but instead of fighting speech with more speech, he chose to use the courts for his personal revenge. Whatever you may think of Snyder and the Redskins, the courts are not the appropriate forum for resolving these sorts of grudges.

Snyder's own attorney seemed to acknowledge the true intention of his lawsuit in a letter to the hedge fund that owns the newspaper, the original object of his suit. He wrote: "Mr. Snyder has more than sufficient means to protect his reputation and defend himself and his wife against your paper's concerted attempt at character assassination. We presume defending such litigation would not be a rational strategy for an investment firm such as yours. Indeed, the cost of litigation would presumably quickly outstrip the value of the Washington City Paper."

This is exactly what SLAPPs are all about. They are used to silence and harass critics by forcing them to spend countless time and resources defending against them. SLAPPs use the courts as a weapon to stifle participation in government and chill expression about matters of public interest.

Great to see renewed interest in a federal anti-SLAPP law (though, the details do matter). And, for that, we can thank Dan Snyder.

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