I think it’s a safe bet that just about everyone in the class has looked up a music video on YouTube in recent months only to find that the audio had been removed by Warner Music Group.  This will likely soon become a problem of the past, as Warner Music and YouTube have struck a deal that will bring back Warner’s artists to the popular video site. Details of the completed deal have yet to be released, though Warner has stated that they are currently sending their video files to YouTube to be encoded – videos which have been off the site since December. Warner has also got onboard for YouTube’s Vevo project – a music video venture with Sony and Universal music groups.

(via Ad Age: http://adage.com/digital/article?article_id=139279)

It seems as if Tim Langdell has been bullying video game companies for a long time, and now he’s butting heads with one company that refuses to back down. Electronic Arts has submitted a 28 page petition to the United States Patent and Trademark Office to revoke Langdell’s trademarks. Langdell has claimed that he owns the trademark to the word edge.

EA released a game called “Mirror’s Edge”. Langdell’s website shows that he has a game called MIRRORS “in development” but with no release date. Langdell crossed paths with EA when he claimed that their already released and acclaimed game Mirror’s Edge would cause confusion in the market.

See EA’s motion to nullify Langdell’s trademark here.

See the EuroGamer article here.

Tim Langdell has been in business since the 1980s, and has not produced a game since 1994. EA is claiming that because he has not utilized the edge trademark recently, there would be no financial loss.

Langdell has challenged video companies before, and most of them have paid him off quietly. One iPhone developer caught in the crossfire had to watch while Apple pulled his app from the US and EU iPhone app store because of the copyright conflict. Langdell claimed that the iPhone game was being mixed up with Langdell’s game company.

Langdell’s game was released in the 1980s. The last game that the EDGE game company has actually released was in 1990.

(Langdell’s company website looks extremely pathetic. The 700+ titles he has listed as creating are actually only about 100- he counts each platform release as a seperate title. Honestly. Seriously.)

The iPhone app, released by Mobigames and created by David Papazian, was released in 2009.

Langdell is arguing that the iPhone developer should choose an “entirely different” name for their app.

Eurogamer also provides an in-depth and headache inducing summary of Langdell’s career here.

This whole situation seems ridiculous. Edge is a commonly used word. The fact that Langdell has also tried to petition for a copyright for the word EDGY doesn’t help. All Langdell seems to do is spend all of his time suing people instead of creating games.

I personally feel as if Langdell is behaving reprehensibly. A recent claim he has filed for  was for a trademark for the title “Edge of Twilight”, despite the fact another game development company had a game with a similar name in development for over two years. In video game news circles, he has developed the nickname the “trademark troll“.

The International Game Developers Association called for Tim Langdell to be booted off of the Board of Directors. IGDA said that his actions have gone against the mission statement of their organization.

Langdell resigned before the IGDA could take action.

It won’t be so easy for him to run from EA Games.

I just published the details for the first take home exam here. You can also get to it from the Assignments page. Here’s an excerpt to get you excited:

For this this take home exam you’ll be writing a paper (800-1200 words) on a real or hypothetical fair use case. You will be graded based on your ability to not only describe the facts of the case, but also your ability to present a high-level and critical understanding of the issues at play. Do not worry about writing this paper as if you were a law student; your writing should be clear and straightforward and tackle the legal, social, and cultural ramifications of the case. Conversely, simply summarizing the case and the parties various claims will not be sufficient. You must analyze everyone’s position and explain whether you find them compelling. If you do find a particular argument compelling you should explain why and reference a position (not necessarily legal) that offers a similar point of view from sources we’ve covered in class.

The paper is due in class on October 15th.

Carol Shloss, an English professor at Stanford University, can finally breathe a sigh of relief after two decades of threats by the estate of James Joyce, the Irish author of Finnegans Wake, published in 1939 and protected under the European Union’s copyright extension. In 1988, when she first travelled to Paris to do preliminary research for her 2003 biography, Lycia Joyce: To Dance in the Wake, the executor of the author’s estate, Stephen James Joyce, warned her of his determination to protect the copyright of his grandfather’s works. Shloss saw Lycia, Joyce’s daughter, as his muse for Finnegans Wake, but the family had long tried to keep Lycia’s existence hidden; she was schizophrenic and they were embarrassed of her life in and out of mental institutions. Shloss, however, was undeterred.

Over the next several years, Stephen Joyce made attempts to damage Shloss’s relationship with her employer, interfere with her research, and ultimately stop publication of her book, according to the Stanford article below. In 2002, when the book was headed for publication, the estate pressured Shloss’s publishers to delete copyrighted material taken from the estate or face suit. The publisher complied without a fight, but the repercussions were harsh: critics claimed that Shloss’s work lacked the literary evidence to support her argument. 

Shloss responded to their attacks by creating a website that juxtaposed the actual pages of the book with all the information that she was made to take out. She called her site “a vindication” and believed it was protected under fair use. Thus, in 2006, after receiving threatening letters regarding the site from the Joyce estate, she filed a suit for declaratory relief .

Stephen James Joyce is a prime example of an extremely aggressive copyright holder, one who seems to be particularly egregious in his understanding of fair use. According to the Stanford University News, Joyce has stopped countless public readings and impeded multiple scholars in their research. Joyce told one performer who was preparing to dictate a portion of Finnegans Wake onstage that he had infringed his copyright just by memorizing a small fraction of the work. Schloss recalls another academic figure who was paranoid about accidentally slipping a few of Joyce’s words into a recorded presentation. Given Joyce’s reputation, these individuals would not dare to even ask for permission to use material from the estate, knowing they would be denied clearance before even approaching Joyce.

Despite this history, the estate settled with Shloss in 2007, allowing her to keep the online supplement as well as print an addition to the book with the previously omitted material. In this most recent development, the Ninth District Court of Appeals mandated that the Joyce estate pay the $240,000 that Shloss owes to her attorneys, who include counsel from Stanford’s Fair Use Project and Larry Lessig.

Though the outcome of this case is certainly a victory for fair use in educational contexts, the fact that Shloss had to withstand Joyce’s threats for twenty years and eventually risk a six-figure sum and her professional reputation by taking him to court illustrates the disparity of the fair use doctrine in theory and practice. She speaks of living a “double life” in which the potential legal actions by Joyce were always on her mind while she pursued various scholarly endeavors. How is an academic writer to employ the breadth of one’s creativity with such substantial worries bogging one down?

As Michael Carroll’s “Fixing Fair Use” explains, neither Joyce nor Shloss could be entirely certain who had the law on their side. Though the book’s and website’s educational purpose provides the refuge of the “nature and purpose of use” factor, the book also had the potential to make profit, as evidenced by the many mainstream publications, including The New York Times, which published a review. Joyce may have felt that he would prevail under the harm to the market factor. Moreover, while the work of literary scholars is inherently transformative, as Shloss contended throughout the battle, the fair use doctrine does not include transformative use in its four-part test.

Awarding a scholar his or her attorneys’ fees may encourage other scholars to advocate for their creative rights when confronted with threats from copyright holders, as now the legal system may seem financially most accessible to them. However, this hardly seems like anything more than a minor victory, since this case only demonstrates how the language of the fair use doctrine allows the possibility for illegitimate applications for copyright to burden an individual for much of their career as a scholar.

See the article and also a YouTube video of Carol Shloss here:

Stanford Scholar Gets Six-Figure Settlement from James Joyce Estate

The MTA has been very cautious with the information people take from their webpage.  In 2006, a bagel store named “F-Train Bagels,” in Brooklyn, was threatened to be sued for using the MTA’s copyrighted “F” symbol even after the owners bought the rights.  To avoid the change the bagel store began using signs like this:  

More recently and unlike other transit systems in the U.S. who have “embraced the ethos of open source,” the MTA has been tackling the problems with outside developer use of their intellectual property. The system timetables, maps and routes used in newly developed iphone applications and outside webpages has led to cease and disist orders and thousands of dollars in potential fines.  

An article in the New York Times which can be viewed here, explains how these recent charges have been dropped.  The New York Authority argues that, “it asks for fees only if developers use copyrighted material like the round symbols for subway routes.” (uh oh …)  

Trimet, Oregon’s public transit, does not charge for the information on its webpage, nor does San Francisco, Washington or Boston.

The developers of these programs advocate ridership and provide public information.  I do not feel they are mis-using any data and I found the whole thing (web developers and bagel store issues) crazy.  To play devil’s advocate, I suppose the whole “potential market” idea could be argued, but c’mon really?  This system gets so much money out of us already, the poor web developers are just trying to make it slightly more accessible.

The New IP Czar

A link was posted on Delicious announcing President Obama’s recent nomination of Victoria A. Espinel to become the first “Copyright czar,” pending the Senate’s approval. In October 2008, President Bush passed the Enforcement of Intellectual Propery Rights Act (or Pro-IP Act), and Ms. Espinel will be the czar who oversees the execution of this act. While I would like to preface this entire post with the disclaimer that I am not a journalism and/or politics scholar, and am incapable of/not trying to make any sort of political or governmental commentary on this, I do see interesting implications about the filling of this position.

Though “copyright czar” is quite a catchy title (come on, wouldn’t anything “czar” be catchy?), the actual position Espinel will take is the U.S. Intellectual Property Enforcement Coordinator, or IPEC. According to a September 2008 article on CNET.com, written during the interim time between the Senate’s approval and the Presidents’, the IPEC would:

The IPEC would provide guidance to other federal departments and agencies in their efforts to combat IP infringement. The IPEC would mainly achieve this by chairing an IP enforcement advisory committee, made up of the Office of Management and Budget, the Justice Department, the Commerce Department, the Office of the United States Trade Representative, the State Department, Homeland Security, Health and Human Services, the Agriculture Department, and the U.S. Copyright Office.

The IPEC cannot control how these agencies investigate or prosecute IP infringement cases–but he or she will guide the development of a “Joint Strategic Plan” the advisory committee is charged to create to combat counterfeiting and infringement. The aim of the strategic plan is to disrupt counterfeiting and IP infringement both in the U.S. and abroad, ensure that enforcement efforts aren’t duplicated by the various agencies, establish a protocol for consulting with private industry, establish international standards for IP enforcement, and help other countries improve their IP enforcement efforts.

The implications for this new level of enforcement and oversight are interesting. Firstly, the IPEC’s job is to enforce IP protections here and abroad. Well, her job is to educate foreign nations on IP protection. Why should the United States feel it is responsible for educating the rest of the world on intellectual property when we ourselves haven’t gotten it figured out? Perhaps it is the West’s efforts to create a global village of [legal] information sharing that will ultimately protect our artist, film, and other entertainment industries in foreign markets. Do you think this is a fair or cynical assumption that the U.S. has taken on the White man’s burden to educate the rest of the world for its own benefit? Or are there other factors at play? I can’t help but think economically speaking, the IPEC’s interest (on behalf of the U.S.) is to protect our markets from being pirated abroad, and less about the need to spread knowledge in good faith. Interestingly, Espinel is well versed in both IP law and foreign/international trade, making her the perfect candidate to fill the job description.

The IPEC’s enforcement advisory committee may seem the yin to Carroll’s yang. His proposed Fair Use Board would “balance the expressive freedoms of authors, distributors, and users of copyrighted works without requiring Congress to reopen the terms of the underlying legislative entitlements” (”Fixing Fair Use” 1143). The enforcement advisory committee seems to combat IP-related infringements, paying direct attention to legislative entitlements. The IPEC’s objectives do not seem to include a thorough review of fair-use, nor does it seem her attention will be focused on educating nations abroad on fair use issues. Rather, it is clear her role is to educate and enforce primarily, if not fully, on IP protection and prevention of infringement for the creator’s (and the nation that creator belongs to) economic benefit.

The question now remains how much power will this czar actually have? And not if, but how much will she affect legislation, here and internationally, on IP issues?

According to Merriam-Webster Dictionary online, parody is “a literary or musical work in which the style of an author or work is closely imitated for comic effect or in ridicule.” Comment and criticism in the form of parody sometimes is protected as fair use because the purpose and character standard. Television shows such as Saturday Night Live and The Simpsons often borrow from copyrighted material in order to produce satirical scenes for the benefit of entertaining mass audiences. These satirical shows often rely on fair use’s protection of parody and satire.

Parody is not always protected as fair use though. One of the interesting cases that Michael Carroll brings up in “Fixing Fair Use” is the subjective nature of parody as seen in Mark Napier’s website Distorted Barbie. Napier used this website as a vehicle to make a cultural statement on the American icon of Barbie. Napier used digital images to establish his own alternative views of Barbies, including X-Files Barbie and Possessed Barbie. Mattel brought a suit against Napier’s website for copyright infringement as part of the Digital Millennium Copyright’s Act notice-and-takedown process. Mattel submitted a notification to Napier’s website service to take down the material that directly related to Barbie.

Rather than go through an intense legal battle, Napier decided to further distort his digitized Alternative Barbies so that the relation to Mattel’s Barbie seemed unnoticeable. Originally, Napier’s Kate Moss Barbie looked like the image on the left. Currently, Napier’s website has the Kate Moss Barbie distorted as on the right.

On his website, Napier writes, “I created this site to explore the phenomenon of Barbie. Not Barbie as a toy or collectible, but Barbie as a symbol that a culture has created, absorbed, shaped, and been shaped by…[Mattel’s] attack is grounded less in profit than on preserving the fiction of Barbie.” In his claims, Napier explains his use of distorted Barbie images to make his own meaning from such a culturally rich icon. By doing so, Napier explores the meaning and use of culture through well-known symbols. Michael Carroll says that the comment and criticism aspect of fair use “is less reliable for those who talk about culture.” Rather than just ridicule Barbie, Napier actually makes new meaning through his own images. Therefore, Napier’s use of Barbie as a means to think and write about culture borders on the shaky and subjective ground that is fair use.

The question remains about how can we go beyond just simple parody and actually make statements about culture without infringing on existing copyrights. How can fair use be expanded to include Napier’s Alternative Barbies as a way to start thinking beyond culturally accepted views of American icons?

Where so many writers criticize and criticize, Carroll actually offers a concrete solution to the problem he gripes about, which I found refreshing. Though his agenda might to an extent color his first section, where he lays out the problems with fair use as it stands now, I found that this section was reasonable, tied to facts and particular cases to illustrate his points. I found this section to be the most convincing. Carroll explains how cloudy the area of fair use is, without any real precedent to go by, with decisions being extraordinarily case specific and the principle of fair use only being a standard and not a rule. Even the set of four guidelines laid out in the U.S. Copyright Statute which are to be considered as factors in deciding a fair use case are vague and open to interpretation and have been taken in opposing directions depending on the case.

In terms of Carroll’s solutions, while I find his thinking extremely clear and reasonable, I am not convinced that his solution is realistic and not idealistic. I am also not completely convinced that, as a partial solution, a more concrete set of rules would not be helpful. While I understand that it is a delicate area where rules might be too “over- and under inclusive” I think that in terms of really making fair use more accessible—which seems to be his impetus—the general public needs to be able to rely on a stricter set of guidelines. His plan, which I believe seems sound for larger entities willing to invest their time and money in the process, still seems like it might deter the common citizen who might be reluctant to enter into such a time consuming and involved procedure. How many individuals with small scale projects do you think would rather just attain licensing rights and be done with it, than embark on this process to be assured fair use? Do you think there is any possibility of the money ever being spent to create an entire entity like this, and do you think it would actually broaden participation in fair use?