Posts Tagged ‘copyright’

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The Queen of Talk Under Attack

May 9th, 2011

A $100 million lawsuit was filled against media mogul, Oprah Winfrey accusing her of copyright infringement. Plantif Charles Harris, author of “How America Elects Her Presidents” sent his book to Oprah, desiring to get it some publicity. Unfortunately, Harris received no reply from Harpo Studios. However during an episode on The Oprah Winfrey Show featuring “Oprah’s Search For The Smartest and Most Talented Kids,” Oprah allegedly asked questions from Harris’s book, verbatim including the question, “Which one of our presidents weighed the most?” Oprah moved to dismiss the case because as we are well aware, facts are not copyrightable. Copryright law protects the original expression of the author meaning that historical facts and information accessible in the public domain are un-copyrightable. Copyright “protects only the elements that owe their origin to the compiler-the selection, coordination, and arrangement of facts.” U.S. District Court Judge Jan DuBois agreed with the Defendant stating that “Winfrey’s use of the Fat Taft fact, even if she did learn if from Harris’s book, was not an infringement” because that question was a piece of “raw data” that existed outside of Harris’s booklet.

Such a ridiculous case reminds me of Oprah’s late 1990’s drama in her lawsuit battle against the angry cattle farmers of America. After The Oprah Winfrey Show guest, vegetarian activist, Howard Lyman explained to Oprah and her audience how cow parts were frequently processed and fed to other cattle, aiding the spread of Bovine Spongiform Encephalopathy or mad cow disease. After hearing the gruesome news Oprah vowed to never eat a hamburger again stating, “It has just stopped me cold from eating another burger.” A fairly harmless statement? Not if it comes from the lips of a woman who was nine times ranked as one of the 100 most influential people of the 20th century. That week, cattle futures for April fell 1.50 and cattle farmers blamed Winfrey for the injustice. Although not directly a “copyright” issue, this case calls into account the First Amendment or the right to the freedom of speech, which without stifle creation to an unimaginable degree. Those major players in the food industry were working to ratify British-style libel laws in the United States, in an attempt to quiet animal activists and journalists calling them food disparagement laws allowing food producers to sue any of their food critics for making disparaging comments about their food. Oprah and her guest were sued in relation to Texas’s False Disparagement of Perishable Food Products Act of 1995. The court eventually found that Winfrey’s comments did not constitute libel. I understand the umbrella of defamation of character, but can’t one claim that Oprah was merely using her creative outlet to comment on and criticize the product (although not technically artistic) of another? Sounds like faire use to me. All joking aside, both cases were eventually dismissed. Seems no one has the resources (or a legitimate case) to go against the Queen of Daytime. What type of power could this yield for her?

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Posted in Spring 2011

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Art By the People, For the People?: Copyright Restrictions & Limited Access

May 9th, 2011

“The whole idea of copyright is that eventually it does become public domain.”

Whenever we think about copyrights, we often think about restrictions, but the Library of Congress’ Packard Campus poses new questions about bringing works into the public domain and opening up access to works.

An article from the LA Times brings up an interesting point about citizen access to cherished works of art—whether its an archived NBC newsreel or an original recording by Leonard Bernstein. Each of these documents are a piece of history and yet, while carefully preserved, most people will never have the opportunity to experience this information.

The Library of Congress has a $250 million Packard Campus for Audio-Visual Conservation facility filled with treasures, which continues to grow with donations, such as over 300,000 recorded items from Universal. The collection also includes extended performances by Duke Ellington, Louis Armstrong and Judy Garland that likely have never been heard.

The ability to widen access to these works, at least to academia and universities, suggests that the Library of Congress should implement an initiative to digitalize available materials. However, each of these archived works falls within the jurisdiction of different copyright laws. For example, federal copyright laws have covered music compositions since 1831, while sound recordings have only been protected since 1972.

In addition to the differences among the copyrights of the collection, there’s also the question of orphan works. Without copyright law to protect hundreds of sound recordings, this could never be offered to the public.

Do you think that such historically and culturally significant works should still be restricted based on existing federal copyright laws or released into the public domain? What qualities do you think the work would have to make it acceptable to release to the public domain (e.g. Duke Ellington is culturally significant. He is no longer going to benefit from monetary compensation. Thus, it would be justified to include such works in a public digital collection)?

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Posted in Spring 2011

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Negotiations with China: Preventing Piracy in Asia

May 9th, 2011

“President Obama has made a strong commitment to stopping enterprise software piracy, because it is a bane on one of America’s leading industries, unfairly skewing trade and competition. U.S. businesses in all industries compete daily with otherwise legal companies in China that are stealing the software that drives their manufacturing or helps run their business. The unfair competitive advantage that results is harming businesses in every sector of the US economy.” – Robert Holleyman, CEO and President of Business Software Alliance (BSA)

Recently, China and the U.S. have been negotiating on how to best reduce the stream of pirated books, software, music and other media throughout the Asian nation. The U.S. has working on attempting to reduce import sanctions in China, which only encourage the demand for pirated copies of the banned goods.

Also, between today and tomorrow, May 9th and May 10th, Treasury Secretary Tim Geither and Secretary of State Hillary Clinton will lead talks with China at the US-China Strategic and Economic Dialogue (S&ED).

However, throughout these numerous negotiations and talks with China, has anything substantial been accomplished in terms of reducing software and other piracy? According to a recent article, in 2004, China made a commitment to limit software piracy, yet little has been done to fulfill that promise. In fact, Michael Schlesinger, counsel to International Intellectual Property Alliance (U.S.), stated that between 2004 and 2009, the value of unlicensed software use in China actually doubled from $3.6 billion to $7.6 billion.

The BBC has also recently reported on this inconsistency between China’s promises and its actions. China has actually been passing new patent and copyright laws, which is technically a step in the right direction and certainly “persuasive on paper,” but do not mean much when not enforced. In Shanghai, for example, there is a plethora of illegal goods for sale, like counterfeit clothing and DVDs. Even if there is a raid to shut down the operation, the vendors return shortly after.

An op-ed piece from Foreign Policy Magazine, “Everyone’s Afraid of China,” seems to address this problem. The author suggests that China has been “vacuuming up…intellectual property around the world without regard to patent and copyright protections.” The author also notes that perhaps the solution is a bi-lateral or regional trade organization rather than a comprehensive, global World Trade Organization, for example. The regional trade organizations clearly have their limitations since different sovereign governments can unfairly discriminate in terms of who can and cannot trade with them.

This problem with piracy in China seems to be ongoing for a number of years now. It is not as if the U.S. has the power to regulate piracy in China or implement stricter crackdowns, despite repeatedly asking the country to do so. Aside from actual IP regulations (e.g. domestic legislation in China), an alternative, like changing the nature of global trade, could be risky. If possible, how can the U.S. (or other countries) act to prevent such piracy?

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Posted in Spring 2011

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Golan v. Holder goes to D.C.

May 8th, 2011

In 1994, Congress passed legislation in order to bring the United States into compliance with the Uruguay Rounds Agreement Act.  One of the effects: “potentially millions” of foreign works in the American public domain would go back under the protection of copyright.

Golan’s case, represented by the Stanford Center for Internet and Society, has gone through a number of metamorphoses – beginning in 2001 as Golan v. Ashcroft, then Golan v. Eldridge – and the district court held that “the body of law [in the United States] includes the bedrock principle that works in the public domain remain in the public domain.”  That decision, however, was just overruled by the 10th Circuit Court of Appeals, which found that the URAA is completely constitutional.

Certainly, actively removing works from the public domain is a crippling blow to reformers, lawyers, and activists whose goal is reviving the public domain, but there is a silver lining: Golan’s petition for certiorari has been granted.  The Supreme Court will review the case based on the Progress Clause of the Constitution and the 1st Amendment complaints of Golan, and stated that the case will be a “major test of copyright power.”

The holding that Congress can remove works from the public domain at whim, and reinstate copyright as they deem necessary, is a dangerous precedent to set in a climate where the public domain has all but evaporated.  Essentially, if the Supreme Court upholds the 10th Circuit’s decision, American copyright law will become even more stringent than it is now.  Another copyright term extension act is inevitable as it is now, but a decision that allows Congress to “restore” the copyright of public domain works would further constrict the already limited public domain.  What we need is more public domain works, not less.

Do you think Congress should be allowed to remove works from the public domain?

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Posted in Spring 2011

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Facebook Me! The Claim to Copyrighted Ideas

April 19th, 2011

There’s only very few brands that become its own verb. Make a Xerox, Google it, Facebook me. Facebook is so pervasive and all-encompassing that its impossible to ignore. If someone doesn’t have the screen on their laptop in class, at work or on their phone, there’s someone else talking about a photo, or conversation found on the website. Women update their statuses while in labor and couples have changed their relationship statuses on the altar.

With this daily consumption of Facebook and its endless content specific to our friends, family, colleagues and neighbors, aside from the discussion of privacy issues on the news, not many were concerned with Mark Zuckerberg and how the quickly growing website was born, until The Social Network premiered last year.

According to the New York Times, after a six-year battle, twins Tyler and Cameron Winkevoss, also known as the infamous “Winklevi” have finally been denied further claims on Facebook. The twins were trying to alter their original 2008 settlement, which is now worth about $200 million based on the growth of the company. Due to the original value of the social networking hit website, the twins suggest that they’re still being cheated. The Winklevoss twins are not giving up, despite the fact that Judge Kozinski has stated that the case has come to its natural end.

Even more outrageous than this, a man named Paul Ceglia supposedly fabricated e-mails between Zuckerberg and himself, suggesting that he has some share in FB. Zuckerberg claims, however, if the e-mails are fabricated that Ceglia can’t have much of a case against the company.

Do you think Winklevoss twins still have a claim to Facebook? This brings up the larger question as to whether or not Zuckerberg stole an original idea. If the Winklevoss twins didn’t actually execute the idea and create the website, do they still have claim to it? Should they or shouldn’t they continue to battle the lawsuit?

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Posted in Spring 2010

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YouTube Sends Its Content Creators to “Copyright School”

April 17th, 2011

Recently, YouTube began sending its users to “Copyright School.” According to the Wall Street Journal, if Google receives a copyright notice regarding an infringer on YouTube, the person will be required to watch a tutorial video and take a multiple choice quiz about the tutorial. YouTube’s “copyright help center” has also been altered to be more informative for online users. Three of the four questions must be answered correctly to have their account reinstated.

As MSNBC notes, the information video uses a “cartoony approach” despite the gravity of the topic, but the style intends to reach all audiences with simple language in order to drive the point across. Up until this point, it seems as though most users still upload videos that infringe copyrights, such as the latest episode of a television show, knowing that it will be flagged and removed, but proceed to post it anyway. These users seems to rely on YouTube to police them, but finally, Google is trying to eliminate this step and stop infringers in their tracks before they post any material at all.

This isn’t the first time that YouTube has been at the center of a controversy regarding copyrighted material. As recently as 2010, Viacom had appealed former court decisions in $1 billion copyright suit against Google. Although Viacom suggested that the decision would destroy the copyright system, the U.S. District Judge Louis L. Stanton of New York stated that Google was not necessarily responsible for such infringement, especially since YouTube complies with the takedown system. Based on the Digital Millennium Copyright Act’s “safe harbor,” the judge suggested that YouTube had no way of knowing if the material posted was protected under fair use.

Do you think YouTube users will take this policy seriously? Will it deter copyright infringers and if not, what system could be used to prevent such copying on the website?

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Posted in Spring 2011

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Federal Judge Denounces RIAA Claim Over LimeWire

April 16th, 2011

The RIAA calculations would amount “to more money than the entire music industry has made since Edison’s invention of the phonograph in 1877.” – Judge Wood

In late March 2011, LimeWire was in the headlines due to RIAA’s recent claim that the company owes the recording industry $75 trillion in copyright infringement damages. Judge Wood, who suggests that these extravagant claims are ‘absurd,’ cites an Arista Records LLC v. Usenet.com Inc. case from 2010, where Arista Records claimed the maximum amount of damages at $150,000 by 878 violations.

In October 2010, Judge Wood ordered LimeWire to cease its file-sharing services, suggesting that the site enabled copyright infringement. The Recording Industry Association of America (RIAA) had filed a lawsuit over four years ago, claiming that the industry had lost millions due to LimeWire’s peer-to-peer file sharing services.

Judge Wood evaluated whether or not a copyright holder could possibly claim multiple awards for one copyrighted work, since the RIAA claimed that millions of people illegally downloaded one or more of 11,000 songs. The judge decided that the RIAA could seek one statutory award for each infringed song. LimeWire currently faces fines up to $150,000 per violation.

According to a report that was released in March 2011, the NPD Group notes a significant decline in peer-to-peer file sharing since the shutdown of LimeWire. The group estimates that there were only 16 million peer-to-peer users downloading music at the end of last year, which is 12 million fewer than in 2007. As noted in a blog entry on TechDirt, some people have criticized these statistics, suggesting that there is no hard evidence to prove this decrease in file-sharing activity online.

What do you think LimeWire’s compensation to recording companies should be? Do you think RIAA’s demands were extreme or adequate given the volume of pirated music? Do you think that peer-to-peer file sharing has actually declined online?

“Did Limewire Shutdown Increase Music Sales?”

http://www.techdirt.com/articles/20110327/22561013640/did-limewire-shutdown-increase-music-sales.shtml

“RIAA request for trillions in LimeWire copyright case is ‘absurd,’” judge says.

http://www.computerworld.com/s/article/9215074/RIAA_request_for_trillions_in_LimeWire_copyright_case_is_absurd_judge_says

“RIAA Thinks LimeWire Owes $75 Trillion in Damages”

http://www.pcworld.com/article/223431/riaa_thinks_limewire_owes_75_trillion_in_damages.html

“With LimeWire Shuttered, Peer-to-Peer Music File Sharing Declines Precipitously”

http://www.npd.com/press/releases/press_110323.html

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Posted in Spring 2011

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To Copy or Not to Copy?: Contemplating the Effect of Piracy on Copyrighted Works

February 19th, 2011

“Their theory is that if we severely weaken copyright protections, innovation will truly flourish. It’s a seductive thought, but it ignores centuries of scientific and technological progress based on the principle that a creative person should have some assurance of being rewarded for his innovative work.” – Scott Turow

In an Op-Ed in the New York Times this week, Scott Turow, President of the Authors Guild, contemplated the destiny of Shakespeare had he never been paid for his creative work. If there had been no incentive, the world’s greatest writer may not be the creative genius that we celebrate and study today.

At the Senate’s Judiciary Committee hearing on Wednesday, February 16th, Turow testified on behalf of members of the Authors Guild, who have produced works of all genres and are recipients of literary awards and honors. According to Turow, under the Digital Millennium Copyright Act, the “safe harbor” exemption offers an opportunity for copyright infringers to steal original work without legal penalty, specifically bringing attention to BTGuard.com, which enables users to block their identifiable IP number in order to anonymously download media from P2P sites like BitTorrent. In particular, I thought that Section 512 of Title II (on page 22 of the legislation) that enacts  “safe harbor” for online providers was particularly interesting since these providers are not considered liable if they do “not have actual knowledge that the material or activity using the material on the system or network is infringing.” In the meantime, however, these web providers could be profiting from the illegal downloads of music, books and other media under the pretense of not being aware of such acts of piracy.

Chairman Patrick Leahy (D-Vt.), who plans to introduce the new bill, addressed the stress that piracy puts on the economy, but also acknowledged the possible opposition in passing the legislation during this session. According to Leahy, critics fear that the bill would give “the Justice Department too much power to seize domain names without adequate oversight.”

Do you think that the DMCA safe harbors for online and Internet service providers or is it adequate to protect copyrighted works as is? Should this new bill be put before Congress?

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Posted in Spring 2011

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Filled with Glee: Is the TV Hit Promoting Copyright Infringement?

February 8th, 2011

On Super Bowl Sunday, Glee, the high school television drama-turned musical, received more attention than it ever has in the media. Lea Michele sang “America the Beautiful,” to open the game, the Glee cast was featured in a Super Bowl Chevy commercial and the second half of the show’s season aired immediately following Green Bay’s victory.

While viewers of Glee might praise the show as a cheerful good time to be had by all, not too many have questioned the legality of the characters’ countless musical renditions, which cover classic medleys to the latest top-chart singles. Christina Mulligan, a visiting fellow at the Information Society Project at Yale Law School, discussed the issue in a blog entitled, “Copyright: The Elephant in the Middle of Glee Club.”

According to Mulligan, on the show, the students of Glee Club have made imitations of Madonna’s Vogue music video and Olivia Newton-John’s video, Physical. In real life, such students could have been fined $150,000 or more. Whether it is an imitation video or a “mash-up,” a combination of two songs into one, Glee hasn’t ever suggested that there’s anything wrong with such “borrowing.”

A writer from Salon comments that while Mulligan’s point is well taken, Glee actually serves as a new strategic business model, generating millions of downloads of songs featured in any given episode. As reported in Ad Age, Glee’s producers indeed pay for publishing rights of the songs, but not performance rights.

Do you think Glee promotes copyright infringement or exemplifies the purpose of copyright—to share creative works?

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Posted in Spring 2011

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“Let It Be”: The Beatles and Apple At Last Settle Trademark & Copyright Dispute

February 3rd, 2011

“Speaking words of wisdom, let it be.”

As the famous Beatles song goes, the beloved band has finally resolved its long-time dispute with Apple. According to the Wall Street Journal, The Beatles’ decision to withhold their music from iTunes was strongly linked to the band’s decades-long trademark battle with Apple. In fact, the trademark and copyright stories of these two parties are strongly intertwined.

The conflict first arose in the 1970s, as The Beatles argued that then-seminal computer company, Apple, had lifted its name and trademarked logo from their record company, Apple Corps. In 1978, The Beatles’ music company and its green Granny Smith apple logo, had sued Apple for trademark infringement, and in 1981, Apple Computer both paid $80,000 and agreed not to enter the music business, a promise that was ultimately broken with musical instrument digital interface (MIDI) in 1991 and then with iTunes.

Despite this history of conflict, Apple had long been fighting for the Beatles’ music to be sold on iTunes. The trademark case had still not been resolved when Apple sought to sell the band’s songs through iTunes, when it launched in 2003. Interestingly enough, when the trademark case had been settled in 2007, Apple announced the end of digital rights management or DRM, which is an “anti-piracy lock-and-key system” implemented to ensure that songs purchased from iTunes, for example, could not be played on any other mP3 player other than Apple iPods. Apple had made an agreement with Warner Music Group, Sony and Universal Music Group to sell DRM-free songs.

On the exact day that Apple implemented the DRM switch in 2009, the Beatles announced the release of their digitally re-mastered collection on CD. The Beatles clearly not only had an issue with Apple over its signature trademark, but also up until that point, actively resisted digital sales, especially DRM-free sales, enabling anyone to copy and share songs. The Beatles reluctantly licensed their work for its inclusion on the popular video game, Rock Band.

In November 2010, Steve Jobs excitedly announced that The Beatles would be available on iTunes. The billboards across the country, as well as a prominent display on the iTunes Store’s home page, not only seemed to be a celebration of reconciliation between Apple and The Beatles, but also of the outstanding profits to come. In fact, since last November, The Beatles have sold more than 5 million songs and 1 million albums on iTunes.

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Posted in Spring 2011

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