August 21, 2007
Criminal Copyright Infringement Sanctions against Simpsons Movie Pirate
According to this press release issued by the Attorney-General’s department on Friday, a search warrant was executed at the premises of a 21-year-old Sydney man, who was arrested on charges of commercial copyright infringement. The accused is alleged to have made a bootleg copy (‘cam’) of The Simpsons Movie with intent to distribute commercially.
Curiously, the press release includes a sober warning — one more frequently associated with CrimeStoppers reports of serial killers and armed robbers:
If any member of the public has any information related to [some homicidal maniac], they should contact the Australian Federal Police or their local State police.
In this instance, the raid followed a tip-off from the perplexingly-capitalised Australian Federation Against Copyright Theft. This organisation is basically a lobby group funded by international movie studios, including Fox, Paramount, Village Roadshow, Sony Pictures, Universal and Warner Bros. It will be interesting to follow this case at trial, as it represents the first high-profile prosecution under the new criminal offences provisions that were introduced by the Copyright Amendment Act 2006 (Cth).
Posted by Jaani at 8:54 PM | Comments (0)
August 18, 2006
Newsflash: Teenagers Disrespectful of Copyright
This piece is almost Onion-worthy for its obviousness. According to a study conducted by Bloomberg and the Los Angeles Times, teenagers don't understand copyright law. This is hardly surprising, given that most politicians -- heck, even lawyers -- exhibit similar deficiencies:
Of course, the real question is not whether teenagers know copying traded CDs amounts to infringement; it's whether they care. My own experiences lead me to suspect that they don't. Perhaps, as Cornish and others have suggested, copyright is fading into irrelevancy despite its omnipresence.Among teens aged 12 to 17 who were polled, 69 per cent said they thought it was legal to copy a CD from a friend who purchased the original. By comparison, only 21 per cent said it was legal to copy a CD if a friend got the music for free. Similarly, 58 per cent thought it was legal to copy a friend's purchased DVD or videotape, but only 19 percent thought copying was legal if the movie wasn't purchased.
Those figures are a big problem for the Recording Industry Association of America and the Motion Picture Association of America, both of which have spent millions of dollars to deter copying of any kind. The music industry now considers so-called 'schoolyard' piracy -- copies of physical discs given to friends and classmates -- a greater threat than illegal peer-to-peer downloading, according to the RIAA.
Posted by Jaani at 9:20 PM | Comments (0)
Swedish Pirates
The case against Pirate Bay, the most hunted digital piracy outfit in the world, may hinge partly on politics and public opinion in Sweden.Posted by Jaani at 9:17 PM | Comments (0)
August 17, 2006
Copied Certification
Microsoft is suing a certification-testing site for allegedly copying the developer's certification exams.Posted by Jaani at 9:14 PM | Comments (0)
August 14, 2006
Copyright Minimalism
In Tokyo's packed doujinshi comic book markets, fan-created manga is king. Unshackled from Western copyright maximalism, creators re-imagine familiar characters in new and interesting story lines. Commentary by Jennifer Granick.Posted by Jaani at 9:21 PM | Comments (0)
May 13, 2006
British Music Industry: Copying Music to MP3 Players Not Infringement
The BPI wants to make it legal to copy music onto digital media players, but still reserves the right to go after piracy as usual. It's a noble gesture, but does it really matter?
Posted by Jaani at 1:53 PM | Comments (0)
French Digital Music Copyright Bill Advances
French lawmakers have moved a step closer to a copyright law that would have wide-ranging effects on those selling or listening to digital music.Posted by Jaani at 1:42 PM | Comments (0)
May 7, 2006
Google Asked to Remove Miro Tribute
From Wendy Seltzer:
'Searching with Google yesterday, I smiled at its logo, playfully reworked to look like a Joan Miró painting in honor of the Spanish artist's birthday. His family and Artist's Rights Society weren't smiling, the Mercury News reported, asking Google to remove the tribute mid-day. Google honored the request while saying that the logo did not infringe.'
[President of Artists Rights Society Theodore] Feder said the society receives hundreds of requests each day from media organizations who are interested in reproducing a copyrighted work in some form. He said the authorization process is simple: all Google needed to do was send an e-mail asking permission to use the images.
"We would have asked the estate or the family, and they would have said yes or no," he said.
But fair use, as US courts recognize it, eliminates the need to ask permission. Fair use saves us from the sanitized world where only authorized tributes or commentary are permitted. Moral rights, applied in many European countries but not the US, protect the "integrity" of artists' works -- but even that was hardly under threat.
Enterprising Wikipedians have already added note of the controversy to the Miró biography.
Posted by Jaani at 10:53 AM | Comments (0)
March 19, 2006
Validity of the Creative Commons Licence Upheld
In what is sure to be big news for supporters of the Creative Commons licensing regimes, a Dutch court has recently upheld the validity of the Creative Commons Public Attribution Non-Commercial Share-Alike 2.0 licence.
From what I can make of the judgment (in Dutch), the action was brought by an Adam Curry, who was understandably concerned about the unauthorised commercial publication of several of his photographs. The photos were released on popular photo-sharing site Flickr under a Creative Commmons licence. The terms of that licence required attribution and permitted copying only for non-commercial use. Curry sued the magazine that published his photographs. The Dutch Court held that the magazine was bound by the terms of the licence, and awarded compensatory damages of € 1000.
My Dutch isn’t what it used to be, but this seems to be the money paragraph:
De voorzieningenrechter:
1. Verbiedt gedaagden na betekening van dit vonnis ieder gebruik, iedere verveelvoudiging en/of iedere openbaarmaking van de werken van [eiser1], die zijn geplaatst op de website www.flickr.com , zonder voorafgaande schriftelijke toestemming te staken en gestaakt te houden, tenzij dit gebruik, deze verveelvoudiging en/of deze openbaarmaking in overeenstemming is met het bepaalde in de voorwaarden waaronder de werken door [eiser1] op die website ter beschikking worden gesteld als vermeld in de Creative Commons Public License Attribution-NonCommercial-ShareAlike 2.0 en/of is toegestaan op basis van wettelijke bepalingen, een en ander op straffe van een dwangsom van
€ 1.000,- per overtreding van dit verbod met een maximum van € 20.000,-.
2. Compenseert de proceskosten aldus dat iedere partij de eigen kosten draagt.
3. Verklaart deze kostenveroordeling uitvoerbaar bij voorraad.
Thank you, oh magical fish:
1. The Court prohibits, after pronouncement of this order, use and/or publication of the work of the complainant, which has been placed on the internet site www.flickr.com, without first obtaining written authorisation and/or making the publication in accordance with the terms according to which the work is made available by the complainant on that internet site as mentioned in the Creative Commons Public License Attribution-NonCommercial-ShareAlike 2.0 and/or has been permitted on the basis of legal provisions. Failure to comply attracts a penalty payment of €1.000 — by summary offence of this prohibition — with a maximum of €20.000.
2. The Court thus compensates the process costs that every party carries its own costs.
3. This cost condemnation explains feasible at stock.
Despite the poor quality of this automatic translation, it seems apparent that the the Court upheld the terms of the licence:
The claimant [has] the copyrights [in] the four photographs originating from www.flickr.com. Weekend has also recognised this, by use of the ©-symbol. … The photograph is put on the Internet site available under the conditions which have been incorporated in the [Creative Commons] licence. This is recognisable to every visitor of the Internet site, because at the photograph the text ‘some rights reserved’ has been included. At the [bottom] of the symbol [and] that text one becomes [linked] to the shortened text of the licence. Then one can [click] to the complete text of the licence.
That the conditions of the licence apply, becomes clear from the openings words of it, [which state]: “By exercising any rights to the work provided complete, you accept and agree to be bound by the term or this license.” [The defendants] have not met the requirements which the licensor put to the use of the photograph. Article 4 under the licence stipulates that the [defendant’s] use can produce no commercial advantage, whereas Weekend is [manifestly a] commercial illustrated magazine.
Article 4 of the licence stipulates — in paraphrased form — that upon distribution and public consumption of a work a copy of the licence must be supplied. Weekend has not met this condition because no reference is made to the licence. [This is a] violation [of] the conditions … This has been also recognised by the defendants in the communication in Weekend Number 4 of 2006 [presumably a retraction or apology].
[It] is important [to recognise] that the defendants have, as a professional commercial party, a higher duty of care [to uphold the terms of the licence]. They [should] have … contacted the complainant before publication. [The mere fact that] the photograph contains the text ‘This photo is public’ does not weaken the applicant’s case. This means only that the photograph can be examined by everyone. [However,] it gives to no right publish the photograph in Weekend or elsewhere.
Importantly, the judge recognises that making a work freely available on the internet does not equate to surrendering copyright in it. However, nor does it equate to reserving all the rights traditionally associated with copyright in printed works. By upholding the terms of the licence, the Court has taken one step towards providing a more flexible middle ground to digital content creators.
Posted by Jaani at 4:07 PM | Comments (0)
Blake Upheld: Google Cache Still Does Not Infringe Copyright
Another United States cache-copyright case. This time, Judge Surrick of the federal circuit dealt with cached copies of Usenet materials.
Google’s archiving of Usenet posts does not constitute copyright infringement, even if the posts themselves contain infringing material. The case revolved around excerpts from ‘The Seduction Library’, a series of guides from Snodgrass Publishing on how to score with women. Gordon Roy, owner of the company, had sued Google for copyright infringement because the search giant had archived posts he had made to Usenet containing parts of his guide. In addition, Roy said that Google’s caching and returning snippets of text from his website in response to searches also constituted infringement.
What is interesting about Roy v Google is that this time the decision turned on a characterisation of Google as an Internet Service Provider (‘ISP’). According to Judge Surrick, the automatic caching mechanism allowed Google to take advantage of ISP safe harbour provisions. This is an approach that could potentially apply in Australia.
Posted by Jaani at 3:56 PM | Comments (0)
Blake v Google Inc: Google Cache Does Not Infringe Copyright
A judge of the United States District Court has just handed down a verdict rejecting claims that the operation of Google’s ‘cache’ feature infringes copyright. (A cache is a temporary copy of a webpage stored in memory to preserve its state at a given point in time. Most usefully, it allows users to see what a page on the internet once looked like at the time it was cached.)
Mr Blake Field, a Nevada lawyer, sued Google when he found that portions of his website, www.blakeswritings.com, had been copied into cache and were accessible even after he had removed them from his website. Judge Jones held that, in failing to direct Google’s search bot not to index the material, combined with his posting the material in the first place, Blake’s conduct amounted to an implied licence permitting Google to cache the material. Click here for the full judgment.
The result is clearly correct — all the more so having regard to the facts of the case. In late 2004, Blake posted the copyright works on his website. He ‘gave them titles like “Good Burritos” and created stanzas that would make T S Eliot weep’:
There’s this burrito joint that’s not too far from here,
and they make a pretty good burrito.
It’s also a very inexpensive burrito, as their
cadillac [sic] entre [sic] is the most expensive at $4.10.
And for that, you get a whole lot of food.
A burrito as big as your head, even.
Having regard to their content, it is doubtful whether they were posted for any reason other than founding his cause of action in what was clearly intended to be a test case. Ars Technica’s analysis about sums it up:
Mr Field purposely created a robots.txt file that allowed robots to index the site, and he failed to use the ‘no-archive’ meta-tag even though he was familiar with it. He made no effort to contact Google about removing the cached version of his site from their servers. Then he sued them for US$2.5 million dollars in statutory damages — on works he had all but crapped out over a couple of days and had no intention of publishing.
Obviously, on these facts, there was little chance of success for the plaintiff. Anyone who permits the acts constituting infringement of their own works will be estopped from bring an action or in any case be deemed to grant a licence. But it does raise the question whether a bona fides plaintiff might raise a similar claim against the search giant — or indeed other web caching services.
Because Australian copyright infringement is predicated upon a notion of strict liability, it matters not that someone in Google’s position didn’t intend to infringe copyright, nor even do the acts constituting infringement. Further, although Google’s conduct may be permissible under the United States fair use defence, it may nevertheless sound in civil damages in other jurisdictions. It will be interesting to see how the Australian courts (and, more importantly, legislatures) grapple with this issue.
Posted by Jaani at 2:48 PM | Comments (0)
December 13, 2005
National Geographic Authors not Entitled to Online Royalties: Supreme Court
The Supreme Court of the United States has declined leave to hear a case brought by authors against National Geographic. The authors claimed to be entitled to additional royalties as a result of the magazine's republication in CD-ROM format and online.
This case has significant repurcussions for authors and content publishers. Publishers are increasingly distributing content via a number of mediums: websites, email newsletters, RSS feeds, WAP data streams, podcasts -- what was once a single publication channel is now fragmented into combinations of the above. The Court's decision suggests that duplicated and resyndicated content will not require payment of additional royalties.
Posted by Jaani at 2:30 PM | Comments (0)
Lyrics Websites Targeted in Lawsuits
'According to a story in the London Telegraph, the UK music industry ... has targeted Internet song lyrics websites for copyright infringement actions.'
"We're fed up with internet entrepreneurs 'ripping off' songs - from perennial favourites such as Happy Birthday and Rhapsody in Blue to the music of Madonna and Sir Elton John," a Warner Chappell spokesman was quoted as saying, and the firm has apparently already been successful in closing down an Australian-based lyrics website (pearLyrics.com).
Empirical evidence suggests that the practical effect of unauthorised scores is not always negative. Click the link for an excellent analysis of the issue.
Posted by Jaani at 2:27 PM | Comments (0)
October 27, 2005
Redefining "Copy" in the Digital Era (Donna Wentworth)
William Patry, in a post tracking the evolution of the legal definition of a "copy": "We may be at the end of the road conceptually and semantically when 'copy' can be impressed into banning all sampling and imposing liability for buffering and caching no matter the end purpose."
Posted by Jaani at 9:55 PM | Comments (0)
Writers Side With Google in Scrap
Some authors break ranks with publishers and peers to take the search engine's side in the furor over its library project. The lesson: One writer's copyright infringement is another's salvation from obscurity. By Joanna Glasner.Posted by Jaani at 9:54 PM | Comments (0)
October 15, 2005
On the Significance of Stevens v Sony
Michael Geist has posed an analysis of the outcome in Stevens v Sony, recently handed down by the High Court of Australia. Professor Geist articulates several themes underlying the Court’s treatment of the issues:
The case goes to the heart of anti-circumvention provisions that create very contentious proposals in Bill C-60 here in Canada. At issue in the Australian case was whether mod-chips, used to modify the Sony PlayStation so that users could play games lawfully purchased outside the country, were themselves lawful. The High Court reversed a lower court decision by finding against Sony, ruling that the mod-chips were not captured by Australia’s anti-circumvention laws in place at the time of the action.
There are several important things for Canadians to take away from the Australian decision … First, the court references WIPO implementation and … states explicitly that ‘it will be apparent that the provision is expressed in broad terms, leaving considerable scope to individual States in deciding on the manner of implementation.’ In other words, the US model is not necessary in order to comply with the treaty. …
Second, the court provides a good illustration of why the Canadian decision to exclude devices from Bill C-60 is a good policy. In discussing the definition of a device that would qualify as a technological protection measure, the court says that: ‘…it is important to avoid an overbroad construction which would extend the copyright monopoly rather than match it. A defect in the construction rejected by Sackville J is that its effect is to extend the copyright monopoly by including within the definition not only technological protection measures which stop the infringement of copyright, but also devices which prevent the carrying out of conduct which does not infringe copyright and is not otherwise unlawful. One example of that conduct is playing in Australia a program lawfully acquired in the United States. It was common ground in the courts below and in argument in this Court that this act would not of itself have been an infringement.’
Third, the court emphasi[s]es the need to protect the rights of individuals and their personal property. Justice Kirby states [that] ‘ordinary principles of statutory construction, observed by this Court since its earliest days, have construed legislation, where there is doubt, to protect the fundamental rights of the individual. The right of the individual to enjoy lawfully acquired private property (a CD ROM game or a PlayStation console purchased in another region of the world or possibly to make a backup copy of the CD ROM) would ordinarily be a right inherent in Australian law upon the acquisition of such a chattel.’ This is an important statement that should resonate in Canada as Bill C-60 creates new limitations on rights associated with personal property, such as the right to make a personal copy of a store-bought CD that contains copy-control technology.
Fourth, the court raises constitutional concerns [about] copyright provisions that extend [well beyond] traditional copyright norms. The court states that ‘to the extent that attempts are made to push the provisions of Australian copyright legislation beyond the legitimate purposes traditional to copyright protection at law, the Parliament risks losing its nexus to the constitutional source of power. That source postulates a balance of interests such as have traditionally been observed by copyright statutes, including the Copyright Act.’ These same concerns are echoed in a Canadian context by my colleague Jeremy deBeer in his piece in the In the Public Interest book.
Posted by Jaani at 7:09 PM | Comments (0)
BSA Wants 'Private Copy Levies' Scrapped
'The BSA is calling on European governments to scrap so-called private copy levies on digital hardware and media, branding them outmoded and unfair to the consumer in a world with digital rights management (DRM) software.'
Posted by Jaani at 6:51 PM | Comments (0)
Three Charged with Criminal Copyright Infringement in United States
A federal grand jury indicted three men in what prosecutors called the largest seizure of pirated compact discs in the nation's history.Posted by Jaani at 6:49 PM | Comments (0)
October 8, 2005
Japanese Court: Content Resyndication is Copyright Infringement
The Japanese Intellectual Property High Court has awarded Yomiuri Shimbun, a domestic newspaper, ¥237 700 (AU$2758) in damanges for copyright infringement by a website which republished news headlines without its permission. The Court overturned the ruling of an inferior court in March 2004, which held that news headlines ought to be made freely available online and so could not be the subject of copyright.
The infringing website, Digital Alliance, appears to have contained a collection of links to news articles which, when visited, linked to the corresponding Yahoo JP article. It is unclear how much content was actually displayed on the linking website itself:
The court said the use of news headlines by Digital Alliance was illegal. It is the first ruling in Japan giving protection to news headlines. But presiding Judge Tomokatsu Tsukahara said that headlines were still in a legal grey area as they are not mentioned under Japan’s Copyright Law. He did not order Digital Alliance to pull the Yomiuri headlines off its website.
Though I haven’t been able to locate the full English text of the decision, Associated Press is reporting that it appears to have been based partly on the advertising revenue reaped by the syndicating website, and the fact that Yahoo paid other news organisations for the rights to the articles.
The decision raises significant issues for syndicators of Japanese content. It suggests that publishers of news feeds may infringe copyright of the feed providers, unless express authorisation is obtained for such use. Whether making an RSS feed publicly available constitutes some kind of implied authorisation or waiver remains to be seen.
This website makes extensive use of RSS feeds — both to aggregate (and comment upon) news from other websites, and as a means to distribute stories such as this one. Indeed, the sole purpose of many websites is simply to collate various links or news articles into new forms — some from Japanese websites — publishing them in much the same way as Digital Alliance did (with attribution, a short excerpt, a comment and a link). This decision is thus particularly troubling.
Posted by Jaani at 12:48 PM | Comments (0)
October 7, 2005
Australian High Court Deals a Blow Against Ubercopyright (Donna Wentworth)
The Australian High Court today brings us refreshing copyright sanity.
It ruled for the mod-chippers in Stevens v. Sony, the case in which Sony was suing under Australia's anti-circumvention laws to stop people from modifying the Sony PlayStation to play cheaper overseas versions of games. Specifically, it found that:
[The] true construction of the definition of "technological protection measure" must be one which catches devices which prevent infringement. The Sony device does not prevent infringement. Nor do many of the devices falling within the definition advanced by Sony. The Sony device and devices like it prevent access only after any infringement has taken place...[In] construing a definition which focuses on a device designed to prevent or inhibit the infringement of copyright, it is important to avoid an overbroad construction which would extend the copyright monopoly rather than match it.
If I'm interpreting correctly (and that's a big "if"), the Court has essentially said, "If you're not using a technological protection measure to stop copyright infringement, you don't deserve protection under copyright law. We will not uphold your 'right' to use technological protection measures to protect anything but copyright."
In other words, the Court refuses to turn an appropriately limited monopoly right (copyright) into an unlimited "ubercopyright."
Australian copyright expert Kim Weatherall has extensive analysis, explaining:
[Measures] like those used by Sony are about controlling use of and access to Sony PlayStation consoles. Sony controls all kinds of things about the way people use Sony consoles. For example: they control whether people can:
- play legitimately purchased games sold in overseas markets;
- play games created by someone other than Sony on the Sony console (something that cannot be done on a non-chipped console owing to the absence of an access code).
can argue that it wanted to prevent piracy (it clearly did), and that the measures acted in part to deter piracy (they clearly could), Sony's own approach to the measures muddies the waters. It doesn't just act to prevent infringement, and that point is taken notice of by the Court here. One can't help but suspect the legal reasoning would look different, in this case, if Sony only used its power over the console to actually prevent use of 'pirated' disks.
Very encouraging.
Posted by Jaani at 7:04 PM | Comments (0)
October 6, 2005
Court Rejects French Award Over US Fashion Web Site
'A French court's award of damages to fashion designers who claimed that a US Web site operator posted their designs on the Internet without authorisation is not enforceable in American courts, Southern District of New York Judge Gerard Lynch has ruled. Lynch said it was obvious that the Web site operator's activities fall within the protections of the First Amendment. "Fashion shows are a matter of great public interest, for artistic as well as commercial purposes," he said.'
Posted by Jaani at 10:01 PM | Comments (0)
Copyright Law Put to Test in Google Case
A lawsuit challenging Google's latest effort to digitize library books and make them searchable on the Internet will push intellectual property laws to their limit, say many copyright attorneys. The Google case could set a precedent in terms of how far copyright laws will bend to meet the demands of technology, says one specialist. "This is another one of the great cases over the last 10 to 15 years where technology is really trying to find its niche among the intellectual property rights laws."Posted by Jaani at 9:59 PM | Comments (0)
Inducing Dolphin Infringement? Scientists teach dolphins to sing 'Batman' theme
In the wake of the Supreme Court's Grokster ruling, many have been speculating about what it means exactly to "induce infringement." Well, leave it to science to be the first to push the boundaries. Professors in Florida have apparently taught a dolphin to sing the theme from the Batman TV show on command. A violation of copyright or a scientific breakthrough?
Link: Dolphins sing 'Batman' theme:
Harley, who is associate professor of social sciences at the New College of Florida in Sarasota, says that both studies tested dolphins at Disney's Epcot Center in Florida.
The researchers first had an adult male bottlenose dolphin position itself in front of an underwater sound projector, called a hydrophone, that produced six different 14 kiloherz, 4 second rhythms.
The dolphin was rewarded for performing a certain behaviour to each rhythm. For example, when rhythm 1 played, it waved its pectoral fin and when rhythm 2 played, it tossed a ball.
The various rhythms were played at different frequencies and tempos to ensure the dolphin was recognising rhythms instead of just frequencies or sound durations.
Another adult male was trained to produce similar rhythms using a pneumatic switch, essentially a small, air-filled ball connected to a computer that then generated sounds whenever the dolphin pressed the switch.
"The dolphin was reinforced for producing a specific rhythm to a specific object," says Harley.
"For example, when we presented him with a Batman doll, he received a fish for producing a specific rhythm, in this case, a short sound and then a long one."
"If you recall the original Batman TV series musical intro you'll probably remember the way they sang 'Bat-maaaaaaaan'," she adds.
The dolphin spontaneously vocalised to the rhythms, so the researchers started to reward the male with fish whenever it matched its 'singing' to the rhythms.
By the end of the studies, the scientists could show an object, such as the Batman doll, which represented a certain rhythm-vocalisation combo to the dolphin, and it would create the correct sounds both vocally and using the switch.
Posted by Jaani at 9:57 PM | Comments (0)
PlayStation modification ruled legal
A man who modifies Sony PlayStations to enable them to play copied games has won a four-year legal battle against the company.Posted by Jaani at 9:26 PM | Comments (0)
September 21, 2005
Chinese Search Engine Liable for Indexing Infringing Copies
Baidu is, broadly speaking, the Chinese equivalent of Google. Last week, a Chinese district court found it liable for copyright violation. The act of infringement? Automatically constructing and maintaining an index of links, some of which were to infringing files.
The Court ordered Baidu to pay damages of 68 000 yuan (AUD$8 400). The company is now faces a littany of followup suits, including actions by Universal Music, EMI and Sony BMG. Baidu’s lawyers remain confident, however:
‘We believe that the district court order was based on a misunderstanding of the search engine technology and therefore is without merit’, Decheng Li, a lawyer with Zhonglun WD Law Firm, which represents Baidu, said in a statement. …
Baidu has maintained it is not at fault as it merely provides the search technology and not the offending downloading service.
The plaintiff in this case was Shanghai Busheng (‘Push Song’), a Chinese music publisher. It argued that because Baidu’s search technology provided links to websites which allowed users to illegally download MP3s subject to copyright, it should be liable for infringement.
The acceptance of this argument is problematic for several reasons. First, if liability is deemed to turn on a hyperlink, linking — the fundamental birthright of hypertext — would become a risky business. Ultimately, it may cause the web to lose its interconnectedness, and hence its utility.
Second, how far does liability extend? If I link you to an MP3 search engine using which copyrighted works can be found and illegally downloaded, but don’t provide direct links to the MP3 files (like Baidu did), am I liable for your subsequent infringement? What if I link to the results page of a specific query? What about a Google search for “MP3 search engine”? What if I just link to the software or technology by which such infringement is made possible, like KaZaa or BitTorrent? Firefox? The basis for second or third degree liability is even more tenous, and the consequences far more devastating.
Third, it is a form of secondary infringement unknown to other civil wrongs. Linking to defamatory content, without more, cannot (to my knowledge) give rise to liability. Linking to an article certainly isn’t copyright infringement of that article. Linking to information which, if acted upon, would be illegal, is not — at least in the absence of a supporting procurement offence — itself illegal. Holding website owners liable for the actions of users upon the content of still other users, which they may neither endorse nor realise exists, is thus unprecedented.
Fourth, links change. Today’s cheapmovies.com.au, a legitimate DVD retailer, may be tomorrow’s BitTorrent movie download centre. There are thus significant evidentiary problems associated with accusing an automated content indexer of infringement when the content — and perhaps even the associated proprietary rights — to which they are alleged to have linked did not even exist at the time the hyperlink was created.
Fifth, there is no inducement or authorisation because automated content aggregators are among the most neutral parties on the internet. Indexing is simply a recursive algorithm, and all raw content is stored regardless of merit or legality. Correspondingly, search engines promote themselves as information resources, not piracy hubs. To filter by keyword would be antithetical to the notion of a keyword-based search engine. Think of the chilling effect upon informational goods if Google and Baidu were responsible for the content of the 8 billion or so pages in their respective indexes, all of whose owners hold some form of intellectual property in their work.
These concerns are similar to those articulated in response to the MP3s4free.net and Outlaws.com cases, but are significantly more pressing where, as here, the liable party is a neutral indexer of content and not actively encouraging users to infringe copyright. In light of Grokster and Sharman License Holdings, it is unlikely that a party could be held liable for linking without something more (Moorhouse would suggest ‘sanctioned, approved or countenanced’). For Baidu, however, whose stock price tumbled 28 per cent last week, rulings like these threaten to destroy the commercial viability of automated search indexing.
Posted by Jaani at 12:15 PM | Comments (0)
September 13, 2005
Refiltering the KaZaa Ruling, CRIA Style
Michael Geist (University of Ottawa) has posted a conclusive response to the Canadian Recording Industry Association's ('CRIA') propaganda slash commentary on the recent KaZaa ruling:
First, CRIA seeks to link the Australian decision with Canadian copyright reform. In reality, the two have as much in common as Australian rules football does to ice hockey. ...
Second, in a claim designed to appeal to Canadian Heritage, it describes the implementation of WIPO in Canada as 'WIPO-Lite', questioning whether the bill will be effective and allow Canada to 'implement its international treaty obligations.' ...
Third, there is the absurd claim (designed to appeal to Industry Canada) that Canadian copyright laws have hamstrung online music sales. ... [S]lower sales reflect a broader Canadian trend in e-commerce ... but that is an industry issue, not a copyright problem.
Posted by Jaani at 8:57 PM | Comments (0)
September 10, 2005
An Analysis of Google Print Copyright Implications
Jonathan Band has written an interesting analysis of Google’s Print Library Project, which would see Google scanning the full text of printed works contained in the libraries of several large universities. The results would be imported into its search database using optical character recognition and brief excerpts served up with keyword and affiliate advertising.
The programme was recently halted until November amidst copyright concerns following its announcement:
The Print Library Project involves two actions that raise copyright questions. First, Google copies the full text of books into its search database. Second, in response to user queries, Google presents users with a few sentences from the stored text. Because the amount of expression presented to the user is de minimus, this second action probably would not lead to liability. But even if a court did not view the second action as de minimus, both actions fall within the scope of the fair use privilege. …
Fair use under the US Copyright Act is generally broader and more flexible than the copyright exceptions in other countries, including fair dealing in the UK. Thus, the scanning of a library of books might not be permitted under the copyright laws of most other countries. However, copyright law is territorial; that is, one infringes the copyright laws of a particular country only with respect to acts of infringement that occurred in that country. Since Google presumably will be scanning the books in the United States, the only relevant law with respect to the scanning is US copyright law.
Nonetheless, the search results will be viewable in other countries. This means that Google’s distribution of a few sentences from a book to a user in another country must be analysed under that country’s copyright laws. (Google arguably is causing a copy of the sentences to be made in the random access memory of the user’s computer.) While the copyright laws of most countries might not be so generous as to allow the reproduction of an entire book, almost all copyright laws do permit short quotations. These exceptions for quotations should be sufficient to protect Google’s transmission of Library Project search results to users.
Looks like it’s fair use to the rescue once again. Hopefully Australia will get in on the act soon. The technology is certainly very cool.
Posted by Jaani at 10:39 AM | Comments (0)
The Arguments of the Kazaa Parties
Simon Hayes on Sharman License Holdings, summarising the positions of the parties:
The essence of the industry’s argument was that Sharman could stop illegal file trading on the network, but chose not to do so.
Indeed, the music giants argued, it encouraged piracy through advertising and promotion, and had ‘knowledge and awareness of rampant copyright infringement.’
‘Rather than get asked what’s your licence number and told here’s a termination notice, they got a biscuit and sent on their way’, music industry counsel Tony Bannon SC argued.
Sharman’s argument was that it could not control file trading on its network, and that there were no reasonable steps it could take to do so.
Sharman counsel Anthony Meagher SC referred to the Amstrad precedent, in which CBS Songs failed to convince the British House of Lords that the computer maker was implicated in piracy, even though its machines could be used for copyright violation.
Mr Meagher said Sharman’s position was not materially different to Amstrad’s.
‘We provide them with the software to search and download files — we don’t control what they put in their MyShare folders’, he said. Ironically, while the court has been hearing the case, the world may well have moved on. While Kazaa claims 317 million registered users, experts say it is no longer the largest of the filesharing networks, having ceded that title in the middle of last year to the likes of BitTorrent and eDonkey.
Posted by Jaani at 10:21 AM | Comments (0)
An American Perspective on Sharman License Holdings
Writes Wayne Arnold for the New York Times, ‘The Australian ruling was broadly consistent with a ruling by the United States Supreme Court in June that the makers of the file-sharing services Grokster and Morpheus could be held liable for contributing to the infringement of copyrights. The Supreme Court also rejected the argument that file-sharing services should be protected if they have some legitimate uses and sent the case back for trial to look at whether they encouraged users to steal copyrighted material.’
‘The practical effect of both rulings is to increase pressure on the makers of file-sharing software, who at best face escalating legal fees to stay in business and at worst may face debilitating judgments for damages.’
‘The Recording Industry Association of America praised the Australian ruling. “This decision reflects a growing, international chorus: those who promote theft can be held accountable no matter how they may attempt to escape responsibility,” the association wrote in a statement. “A corrupt business strategy of attempting to hide offshore is not off limits to the enforcement of rights by creators or law enforcement.”’
A corrupt business strategy? The RIAA probably isn’t in the best position to be making such a claim!
‘Kazaa’s lawyers argued that the company’s software was no different in function from a photocopier and that Kazaa bore no responsibility for how its software was used by those who downloaded it.’
Posted by Jaani at 10:14 AM | Comments (0)
Student Sues Commercial Plagiarist for Copyright Infringement
According to Natalie Gott from the Associated Press, ‘Blue Macellari wrote the term paper back in 1999 while studying abroad, so the Duke University graduate student didn’t understand why it was on the Internet — or why it was for sale.
Last January, Macellari learned from a friend that her paper was posted on Web sites registered to Carroll’s company and contained notices that the sites own the copyright to the papers. Furthermore, her name was listed. Macellari never gave the papers to the Web sites or gave them permission to post her papers, Parke said.
Now, she’s suing the operator of Web sites selling her paper and seeking more than $100 000 for copyright infringement, invasion of privacy and damage to her reputation. … Readers can find previews of essays but on a linked site, customers are prompted to sign up for memberships that cost as much as $104.95 for 180 days.’
Faculty are already concerned about students who turn in papers downloaded from the Internet but this case raises another issue about protecting your work, said David DeCosse, director of Campus Ethics Programs at the Markkula Center for Applied Ethics at Santa Clara University.
Students and university professors want to post student work on the Web, he said. “But perhaps we should all be aware of … requiring passwords or things of that nature a little bit more so we don’t contribute to that traffic, sort of illicit student paper traffic,” DeCosse said.
With respect, that’s not really a viable approach. Authors can’t disseminate their work by restricting access to it. A better way would be for the original author to promote their work to such an extent that their website has a higher PageRank than the plagiarist. That way, a Google search would instantly verify the true author’s credentials. Infringing commercial sites are probably best dealt with through the courts. Scoundrels, the lot of them.
Posted by Jaani at 10:07 AM | Comments (0)
Wired Coverage of Sharman License Holdings Decison
Wired chimes in on the decision. Whenever discussing an Australian news event, Wired always seem to somehow incorporate the phrase ‘Down Under’ into their titles. Cultural patronisation aside, their comments are much the same as everyone else’s:
Wilcox said it had been in the financial interest of Sharman and its partners “to maximize, not minimize, music file-sharing.”
He found six of the 10 defendants, including Sharman, its Sydney-based chief executive Nikki Hemming, as well as Altnet, a Sharman software partner, guilty of copyright infringement and ordered them to pay 90 per cent of the record industry’s costs in the case.
A hearing will be held later to establish damages. …
In a brief statement, Sharman said it would appeal and Kazaa software remained available online, with 800,000 downloads reported last week. Sharman says its software is no different from a tape recorder or photocopier — and that Kazaa could not control copyright infringement by users. …
“It is clear that the judge is concerned not to stop the technology completely but to try and work some middle line,” said Kim Weatherall, a lecturer in intellectual property law at Melbourne University.
Some observers have dismissed the decision as irrelevant given that the Kazaa network now accounts for under 10 per cent of P2P traffic. I would suggest, however, that Sharman License Holdings has a broader significance for Australian copyright law. First, it contributes substantially to the question of authorisation by applying Moorgate in a new, electronic context.
Secondly, as Professor Weatherall noted, the decision expressly acknowledges the public interest in appropriately shaping copyright law. Justice Wilcox spoke explicitly of the importance of balancing the interests of innovators and copyright holders. It will be interesting indeed to see whether a more normative approach to electronic copyright is adopted by the High Court.
Posted by Jaani at 9:54 AM | Comments (0)
Tales from the Kazaa Court
Dan Warne has published a firsthand account of the Sharman Networks trial process. Particularly interesting are his observations when final judgment was handed down by Wilcox J:
Sharman’s PR squad was there too, with pink-jumpered, bright and bubbly PR flak Julie Fenwick providing some colour and flair among the morose black suited media around her. …
Her boss, grizly-bearded, yellow-tinted-glasses Phil Burford, CEO of Icon Communications was there too. Since Team Sharman was certain of winning, they sure had called in the heavies.
As Justice Murray Wilcox read out the verdict, Julie Fenwick’s face went as pink as her jumper. Pinker probably. It was more of a blotchy reddy-pink.
The finding that six of the ten defendants in the case were responsible for authorized users to infringe copyright infringement through the Kazaa software would have been kinda embarrassing after telling journalists for 18 months that the court would see through the music industry’s baseless claims.
Looks like they were expecting a win. But at least Clayton Utz still had a contingency plan:
The media scrum was left with Mary Still, a Partner at Clayton Utz, who whipped out a very brief pre-printed statement claiming that the verdict was a “win for both parties”.
While the music industry was crapping on up front about its glorious win, we asked Julie, “so did you have a statement prepared for a win as well?”
JF: “I’m not going to talk to you Dan, you’ve had the statement.”
Posted by Jaani at 9:49 AM | Comments (0)
September 5, 2005
Universal Music Australia Pty Ltd v Sharman Licence Holdings Ltd
After a four month wait, it’s here. Peruse the 526 paragraph behemoth for yourself. More comments to follow.
Executive summary:
(i) despite the fact that the Kazaa website contains warnings against the sharing of copyright files, and an end user licence agreement under which users are made to agree not to infringe copyright, it has long been obvious that those measures are ineffective to prevent, or even substantially to curtail, copyright infringements by users. The respondents have long known that the Kazaa system is widely used for the sharing of copyright files;
(ii) there are technical measures (keyword filtering and gold file flood filtering) that would enable the respondents to curtail –- although probably not totally to prevent –- the sharing of copyright files. The respondents have not taken any action to implement those measures. It would be against their financial interest to do so. It is in the respondents’ financial interest to maximise, not to minimise, music file-sharing. Advertising provides the bulk of the revenue earned by the Kazaa system, which revenue is shared between Sharman Networks and Altnet.
(iii) far from taking steps that are likely effectively to curtail copyright file-sharing, Sharman Networks and Altnet have included on the Kazaa website exhortations to users to increase their file-sharing and a webpage headed ‘Join the Revolution’ that criticises record companies for opposing peer-to-peer file-sharing. They also sponsored a ‘Kazaa Revolution’ campaign attacking the record companies. The revolutionary material does not expressly advocate the sharing of copyright files. However, to a young audience, and it seems that Kazaa users are predominantly young people, the effect of this webpage would be to encourage visitors to think it ‘cool’ to defy the record companies by ignoring copyright constraints.
In short:
[521] Accordingly, I propose to make an order restraining the six infringing respondents from further infringing the applicants’ copyright in any sound recordings …
[522] There will be orders providing, in effect, that continuation of the Kazaa Internet file-sharing system will not be regarded as a contravention of the general injunctive order if the system is first modified, in a manner agreed by the applicants or approved by the Court, to ensure keyword filtering or gold file flood filtering. To allow this to happen, the operation of the injunction will be stayed for two months.
[523] The copyright claims will be dismissed as against Sharman Holdings, Mr Morle, BDE Pty Ltd and Mr Rose.
Posted by Jaani at 5:46 PM | Comments (0)
September 2, 2005
Commentator: Copyright Misuse Stifles Innovation
According to a columnist at The Age:Publishers had a role in the old world. Their job was to aggregate information and sell it in a digestible form, for which they charged money. But the internet and other technologies made publishers' roles as information clearing-house irrelevant, outdated, anachronistic and obsolete. The world has changed, but they have not. ...
Copyright was developed to protect the rights of publishers, not authors. It was intended to protect the publishers from competition for seven to 14 years before releasing the work into the public domain, where all could benefit. Grasping publishers have persuaded governments to extend the life of copyright protection in some cases, up to 70 years.
The real profits go to publishers, who hide their greed behind a facade of altruistic concern for the artists they blatantly exploit. The result is the manufactured stardom of second-rate rock bands and third-rate airport pulp-fiction authors. ... Every artist owes an enormous debt to those who went before, and the point at which artistic licence and derivation ends and copyright starts is forever murky. Copyright seeks to lock innovation away.
What Philipson seems to be missing is that content creators, not publishers, create the expressions protected by copyright, and that legal protection of those expressions benefits them -- and the wider public -- far more than corporate distributors. Philipson's real objection does not appear to concern copyright per se, but rather, the manner in which it is (willingly, mind you) assigned by content creators to 'anachronistic and obsolete' distributors.
While technology has undoubtedly created more efficient distribution networks than traditional publishing models can provide, artists obviously think publishers are still deserving of an interest in their works. However, regardless of the publishing model artists choose to adopt, it seems beyond dispute that the law must provide a mechanism by which to effectively enforce their rights. The challenge facing copyright lawyers is to forge a body of law (or work within the existing legal framework to produce a mechanism) less capable of oppressive misuse or subsequent exploitation.
Posted by Jaani at 11:37 AM | Comments (0)
August 29, 2005
Garrett Urges Legislative Imposition of Royalty for Resale of Artistic Works
Opposition spokesman for the Arts Peter Garrett has called on the federal government to urgently introduce resale royalty legislation for visual artists.
Posted by Jaani at 11:14 PM | Comments (0)
Architecture and Copyright
Wendy Seltzer reports on an interesting article in The New York Times on the legal implications of imitation in architecture:
While the article takes its cue from a recent lawsuit by an architecture student against the designer of the Freedom Tower, it calls that suit an anomaly. (See the Patry Copyright Blog for more on Shine v. Childs.) Most architects, apparently, don't sue, even when they see their work echoed by others.
Are architects just nicer than other copyright holders? Unlikely.
More probably, they've found alternatives to the legal protections copyright gives.
Posted by Jaani at 11:09 PM | Comments (0)
August 27, 2005
Taking Stock of Grokster
'The internet industry has had some time to sit back and examine the US Supreme Court's decision in MGM v Grokster, pondering its ... impact on technology and software developers as well as the entertainment field. In this virtual roundtable discussion, members of Internet Law & Strategy's Board of Editors and other Internet law experts chime in with their thoughts.'
Jeffrey D Neuburger (Chair, Technology, Media and Communica-tions Department, Brown Raysman Millstein Felder & Steiner, New York): The iPod is safe under Grokster, but technology distributors that intentionally seek profit by encouraging infringing acts are not. The Court overturned the 9th Circuit opinion that let the distributors of peer-to-peer file-sharing software off the hook for liability for copyright infringement by users of its software, concluding that the distributors had "a purpose to cause and profit from third-party acts of copyright infringement." The Court aimed its opinion squarely, but also very narrowly, at the distributors, giving the distributors very little ability if any to avoid liability on remand. The Court took pains to carefully detail the specific actions by the distributors from which, the Court said, "a patently illegal objective" could be inferred. But on the other hand, the Court made it very clear that simply manufacturing and distributing technology that can be used for infringement is not enough to result in liability, if the traditional Sony Betamax test of a "substantial non-infringing use" is met. This gives content owners an important new avenue for protecting their intellectual property rights.
Sean F Kane (Drakeford & Kane, New York): On the consumer electronics front the decision will not likely have a wide impact and most of these products should be in the clear. However, the Grokster case will likely cause certain manufacturers to play it safe in the future by ensuring that their advertising and primary appeal of their devices is not specifically to foster infringement. Moreover, certain manufacturers will likely modify devices to allow initial downloads, but to prevent further unlimited copying or require other coding to ensure that content is being consumed only by the original consumer.
John T Aquino (Attorney, Consultant, Washington, DC): The decision does not restrict technology but focuses on the intent of the users, which is as it should be. The Court felt there was clear evidence of Grokster and StreamCast promoting infringement, and there seems to be. I think this is a very big deal. It's a wakeup call. It's a reality check. It says the copyright law is relevant and functioning. It says technology must work with the law and not hope it goes away.
John Delaney (Partner, Morrison Foerster, New York): Although the Supreme Court's decision has remanded the case back to the 9th Circuit for further proceedings, the Court's decision is undoubtedly a victory for the entertainment industries and a setback for peer-to-peer networking companies such as Grokster. The unanimous decision reinforces traditional copyright doctrine that, if one encourages or takes affirmative steps to help others infringe, one can be held liable for copyright infringement -- even if one did not directly engage in unauthorized copying. This is a significant victory for the entertainment industries. Although the case is remanded for further proceedings, the issue on remand will be whether summary judgment should in fact be granted for the content providers. This is a crushing defeat for the Groksters of the world.
Susan Crawford (Assistant Professor of Law, Yeshiva University Benjamin N Cardozo School of Law, New York): District courts will struggle with the language of Grokster and seek limiting principles. It seems clear that mere distribution of technology alone is not contributory infringement, but the question is how much more than mere distribution is needed before inducement can be found.
There will be arguments that corporate statements of intent to encourage infringement are a necessary prerequisite to inducement claims. And, there also will be arguments that business plans need to be exclusively structured around the idea of encouraging infringement.
So both sides of this debate will see Grokster as a Rorschach test. The studios will claim that almost any corporate knowledge of infringement by users of the technology amounts to inducement liability. Technology companies will point to other language in Grokster saying mere knowledge can never be enough to constitute inducement and much more focused, express corporate acts are necessary.
Sean F. Kane (Drakeford & Kane, New York): I believe that Mr Delaney and Ms Crawford make valid points in that the Grokster decision's future is somewhat murky. As the current movement of the P2P industry toward a fee-based business model increases, this decision may have less and less specific impact on the current industry issues. Moreover, the lack of a clear distinction concerning what level or the specific nature of activity that may be deemed to contribute to infringement, is likely to result in more and more litigation until this issue is sufficiently defined.
Posted by Jaani at 9:45 PM | Comments (0)
Computer Repair DMCA Verdict Overturned
Jason Schultz comments on a recent decision of the United States Federal Circuit Court of Appeals: 'Hurray! Justice delayed ends up being justice rendered. Over a year ago, StorageTek managed to convince a district court in Boston to misuse standard copyright law and the DMCA anticompetitively and shut down an independent service vendor who offered repair and maintenance on StorageTek machines.' This decision has nowbeen overturned:
...it is unlikely StorageTek will succeed on the merits of its copyright claim. To the extent that CHE's activities do not constitute copyright infringement or facilitate copyright infringement, StorageTek is foreclosed from maintaining an action under the DMCA ... [T]he DMCA must be read in the context of the Copyright Act, which balances the rights of the copyright owner against the public’s interest in having appropriate access to the work. Therefore, courts generally have found a violation of the DMCA only when the alleged access was intertwined with a right protected by the Copyright Act... To the extent that StorageTek’s rights under copyright law are not at risk, the DMCA does not create a new source of liability.
Even if StorageTek were able to prove that the automatic copying of the software into RAM constituted copyright infringement, however, it would still have to show that the LEM or ELEM facilitated that infringement. ... If such a nexus were not required, the careful balance that Congress sought to achieve between the 'interests of content creators and information users' would be upset.
[citations omitted]
Posted by Jaani at 9:10 PM | Comments (0)
Google Sued Over Nude Picture Rights
The publisher of a US men's magazine has sued Google, alleging that the Internet search company is infringing on copyright by displaying thousands of pictures of nude women.
Posted by Jaani at 8:54 PM | Comments (0)
August 24, 2005
EFF: Digital Artists Deserve the Right to Copy Movies
'Colorado - Yesterday the Electronic Frontier Foundation asked the Colorado Federal District Court to rule that copying an entire movie to a computer to make a new, lawful work is fair use. The case, Huntsman v Soderbergh, involves the companies Family Flicks and Play It Clean Video, which make and distribute copies of movies with sexual and violent content removed. To make these "clean" copies of popular films, the companies must first make an "intermediate copy" of the entire movie on a computer in order to edit it.
Members of the Motion Picture Association of America ('MPAA'), along with several prominent film directors, claim that copying movies in order to make them "clean" is copyright infringement. In a friend-of-the-court brief, EFF argues that as long as making clean movies is not itself an infringing activity, the practice of making intermediate copies should be considered non-infringing also.
This is a important point, because intermediate copies are crucial to the process of creating new copyrighted works. A documentary filmmaker, for instance, might need to make temporary intermediate copies of movies in order to get footage for a film. In the software industry, the process of duplicating a copyrighted work to make an original work is known as reverse engineering, and it has been ruled a fair use in several courts.
"People who make movies should have the same rights software engineers have had for years," said EFF Staff Attorney Jason Schultz. "Fair use makes new art possible."'
Posted by Jaani at 2:25 PM | Comments (0)
August 21, 2005
Steal This Book? Some Insights into ePublishing
Warren Adler, the author of The War of the Roses, talks about the impact of the Internet on traditional forms of print publishing:
"Print publishing has had a great 500-year run, but the print book is morphing into the screen book," he said during a recent lunch at Pigalle, a French restaurant in Manhattan's theater district.
"The big publishing houses just don't get it," Mr. Adler said. Apparently, Mr. Adler does: next month, he will begin selling all his past novels on flash memory cards, readable on e-book players.
Posted by Jaani at 1:03 PM | Comments (0)
August 19, 2005
Is it Copyright Infringement to Circumvent a Printer Ink System?
In an effort to counteract any refurbishing, printermaker Prile started placing a computer chip in its printers that would prevent ink cartridges from being used more than once. But refurbishing company Rockoe has found a way to circumvent the chip's software. President Ricky Rockoe says he's just doing some creative and legal reverse engineering. Is he correct? Can Prile stop Rockoe from refurbishing the ink cartridges? Legal experts weigh in on this hypothetical case.Posted by Jaani at 4:28 PM | Comments (0)
Grokster Has Patent Bar Taking Notice
Grokster is obviously one of the most important copyright law decisions in recent memory. Less obviously, it has the potential to influence patent law significantly. In fact, the US Supreme Court's [27 June] decision may change the direction of inducement infringement law and spur an overall increase in harmonization between patent and copyright jurisprudence.
Posted by Jaani at 4:28 PM | Comments (0)
August 15, 2005
A Critique of the Creative Commons Movement
'John C Dvorak thinks Creative Commons licenses are a solution looking for a problem. What is the point? he asks. Advocates of the scheme say he's ignored an important detail:
Creative Commons is an intriguing experiment to granulize the rights a creator has over his or her work, and to formalize what today is largely spontaneous and informal. The first point is made repeatedly by Dvorak's critics, but ... I haven't seen a genuine attempt to answer his broader question. How is [Creative Commons] good for us - for all of us? Will the trains run on time? Will babies be fed? Will artists be compensated for their talents? As a defense of a very self-consciously idealistic 'movement' this is surprisingly inadequate, and supports his argument that it's more pose than platform.
'"There's a class of speech that's not possible at all without P2P technologies," the Commons' most prominent evangelist, Lawrence Lessig, told the Library of Congress recently. They're confident that an abundance of tools will lead to an abundance of creativity. This is a materialistic perspective which takes no account of history. Culture simply follows what's available to it.'
Source: The Register
Posted by Jaani at 10:22 PM | Comments (0)
August 1, 2005
Pirates of the Potter-ian
J K Rowling comes under fire for inadvertently encouraging people to distribute her latest novel, Harry Potter and the Half-Blood Prince, over the internet. By Robert Andrews.Posted by Jaani at 12:24 PM | Comments (0)
April 23, 2005
An Economic Analysis of of Copyright Term Extensions
The Financial Times is running an interesting editorial about the state of American (and, with the enactment of the United States Free Trade Agreement Implementation Act 2004 (Cth), Australian) copyright law. Professor Boyle argues (rightly, I think) that current intellectual property protections go beyond what is necessary to promote innovation:
Thomas Macaulay told us copyright law is a tax on readers for the benefit of writers, a tax that shouldn’t last a day longer than necessary. What do we do? We extend the copyright term repeatedly on both sides of the Atlantic. The US goes from fourteen years to the author’s life plus seventy years. We extend protection retrospectively to dead authors, perhaps in the hope they will write from their tombs.
Since only about 4 per cent of copyrighted works more than 20 years old are commercially available, this locks up 96 per cent of 20th century culture to benefit 4 per cent. The harm to the public is huge, the benefit to authors, tiny. In any other field, the officials responsible would be fired. Not here.
While this is true, it cannot be denied that some strengthening of copyright protections over the course of the twentieth century was desirable. As an increasingly valuable yet — at least when compared with corporeal hereditaments — vulnerable resource, some intellectual property assets do need additional legal recognition. The keyword here, however, is ‘some’. Prior to the introduction of automatic extensions at the behest of everyone’s favourite rodent, the vast majority of IP assets weren’t renewed. This suggests that, not only are current copyright terms too long, they’re also unnecessary in the vast majority of cases. An optional registration and extension system is one solution.
See further: Professor James Boyle, Deconstructing Stupidity
Posted by Jaani at 9:15 AM | Comments (0)
February 4, 2005
Eiffel Tower Prohibits Nocturnal Photography
The Eiffel Tower’s likeness has long been part of the public domain. However, in 2003 it was abruptly repossessed by the city of Paris. That’s the year that the SNTE, the company charged with maintaining the tower, adorned it with a distinctive lighting display, copyrighted the design, and in one feel swoop, reclaimed the nighttime image and likeness of the most popular monument on earth. In short: they changed the actual likeness of the tower, and then copyrighted that.
As a result, it’s no longer legal to publish current photographs of the Eiffel Tower at night without permission. Technically, this applies even to amateurs. When I spoke to the Director of Documentation for SNTE, Stéphane Dieu, via phone last week, he assured me that SNTE wasn’t interested in prohibiting the publication of amateur photography on personal Web sites. “It is really just a way to manage commercial use of the image, so that it isn’t used in ways we don’t approve,” said Mr Dieu.
It’s probably not as darstedly as it sounds for copyright to be used defensively to protect a building design — or even an entire cityscape — from unauthorised reproduction. However, the restrictive terms under which STNE allows photographs of the Tower to be pubished seem more likely to hinder creativity by creating pointless aproval procedures than to promote it.
Further, if the protection was ever exploited more aggressively (for example, by requiring all images of the Tower to be purchased or licensed from the gift shop), photographers everywhere would be deprived of what is a most spectacular subject. Images like this and this would no longer be possible (indeed, the latter is already — without payment of royalties — impermissible). The law of equity notwithstanding, Parisians are reliant on the STNE to use their legal rights reasonably. In entrusting the reasonableness of copyright law to the rights-holder, are we not recklessly putting our rights at the mercy of capricious and profit-driven entities?
Posted by Jaani at 1:54 PM | Comments (0)
September 19, 2003
Copright May Protect 'Functional Structure'
Justice Pumfrey of the British High Court yesterday granted leave to appeal in a copyright infringement case between two rival airline ticket-booking software devlopers. Though the competing products were programmed in entirely different languages (Cobol and Visual Basic [heh]), the Pumfrey J noted the similarities in 'functional structure', drawing an analogy to the plot of a book.
The defendant developer Easyjet will respond to Navitaire's claim on 3 November in the High Court. A successful appeal has the potential to render any program that operates similarly to another one - even if written from scratch in different code - a potential infringement.
This sounds suspiciously similar to the whole Lotus Development Corp v Borland International Inc saga of the late 1990s, in which the United States Supreme Court chose not to extend protection to a program's menu system. Similarities in look and feel weren't considered then - why should they be now? Surely consistency in user interfaces, program structure, and code formatting is to be encouraged, not prohibited.
Posted by Jaani at 11:07 AM | Comments (0)
July 31, 2003
Federal Court Overrules Mod Chip Verdict
In a unanimous decision, the Full Court of the Federal Court of Australia yesterday overruled its previous verdict that video game console copy-protection schemes comprised a "technological protection measure" as defined in subs 10(1) of the Copyright Act. The result is to prevent the sale of so-called "mod chip" devices which circumvent said protection, and to draw uncertainty about the legality of similar software circumvention methods which are widespread in personal computing.
The grounds for appeal were two definitional disputes; in particular, what a device needs to protect in order to fall under the terms of the Act. The Court upheld Sony's argument that their Playstation 2 console inhibits infringement by rendering the resulting unauthorised copies unusable, though interestingly, decided that the circumvention chips manufactured by the defendant did not produce copies of software loaded onto the console.
This has interesting implications for other areas of copy-protection security. Many software circumvention measures on a PC will copy portions of a program into write-protected regions of memory, preventing the program from overwriting particular data. Though these may be used to further software piracy, the circumvention itself does not, according to this ruling, produce an illegal copy of the program.
Mod chips vary in purpose and capabilities from manufacturer to manufacturer: some circumvent copy-protection and allow games to be pirated and stored on a user's storage device, while others merely allow games legitimately purchased in another region (a foreign country, for instance) to be played on an Australian video games console. The segregation of the console video gaming market into geographic regions strikes me as a largely artificial construction; the boundaries do not dramatically decrease illegal game imports (indeed, it merely encourages the growth of black-market games sales and console modification), but it drastically narrows consumer freedom and unfairly grants a virtual monopoly to the local distributor.
Consumers are often forced to purchase over-priced software in their own country, or wait (sometimes months) for software already available overseas to be released locally. Many games aren't available in Australian markets that are available in Japan or the United States, and legitimate purchases of overseas games have no legal way of being used in Australia (though there is no technical limitation on their inter-operability). For this reason, it seems overly hasty to dismiss mod chip sales collectively. Chips should be examined on a case-by-case basis.
What I find interesting about all this is that manufacturers of a technological device which has the potential for illegality are consistently penalised for the uses to which purchasers put their product, yet manufacturers of weapons designed solely to kill and maim are under no accountability for the actions of their users. There is a disturbing trend in the Australian legal system towards unwarranted dismissal of new technology with potentially unpalatable applications, suggestive of blatant and unabashed luddism.
Posted by Jaani at 8:13 PM | Comments (0)
