December 20, 2008

Second Hand Media

Back in the pre-digital age, if I bought a record, video tape, or book, it came with the legal right to sell or give it to someone if I chose to.

This is known as the “first-sale” doctrine and was first recognized by the US Supreme Court one hundred years ago. In 1976 the concept was written into copyright law.

Fast forward to 2009 and consider the same situation with digital media.

Do you have the same “first-sale” rights for a music download, video file, or audio book? What about software, a medium which certainly had no equivalent to the formats considered by the Court or Congress?

The ease with which digital copies can be produced adds many new layers to the concept of media “ownership”. Do you still own that music download or are you only leasing it?

DRM, the effort by producers to lock the files, and the DMCA, which makes it illegal to break those locks, only makes things more complicated.

Ars Technica has a good overview of the issues involved in bringing copyright into the digital age but don’t read the article looking for answers to the many questions.

That’s going to require some major revisions to copyright law and the concept of “first-sale” in the very near future.

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September 11, 2008

The Czar Wants to Check Your Hard Drive

Congress is back in session so it’s time to keep an eye on your fair use rights.

This time around they’re working on a new law which would direct the Justice Department to do the job now being done by lawyers for the RIAA and MPAA.

The Enforcement of Intellectual Property Rights Act of 2008 would allow the federal government to bring civil suits against people accused of “stealing” intellectual property.

The government also gets expanded powers to seize computers and other equipment and any damages they obtain will be turned over to big media, instead of going into the US treasury as usually happens when the feds win a case.

Another bonus is the creation of a “federal copyright czar” (with the accompanying bureaucracy) to run the whole show and be a liaison with countries where abuse of American copyright law is “rampant”.

I wonder which lobbyist for the media trade associations will get that plum position. You can bet it would never go to anyone with “consumer advocate” in their resume.

Fortunately, there are some groups, including the Electronic Frontier Foundation and Public Knowledge, fighting back.

In a letter sent to the Senate Judiciary Committee yesterday, a coalition of library associations and consumer advocacy groups criticized the bill, warning that an “unbalanced approach to enforcement would lead to unintended harms” that could stifle innovation. The letter blasted the law’s civil enforcement provisions as an “enormous gift of federal resources to large copyright owners with no demonstration that the copyright owners are having difficulties enforcing their own rights.” It also raised privacy concerns about the legislation’s civil forfeiture language, noting that the seizure of servers or other large digital storage devices, often holding data belonging to multiple users, could compromise sensitive personal information.

Some changes to the law are being considered which, hopefully, will make it harder for the FBI to begin raiding the houses of grandmothers (or invading the countries) suspected of piracy.

But there’s still the question of whether our federal law enforcement agencies should be spending their time and money to take over for RIAA lawyers, who have done a pretty lousy job of proving their case.

Meanwhile, there are other intellectual property bills, written by big media and being pushed by their Congress critters, being considered.

Pay attention.

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August 14, 2008

Stamp of Approval on Creative Commons

Lawrence Lessig blogs some “huge and important news” about Creative Commons and other open source licensing systems.

In essence, a Federal Appeals court has ruled that they are valid and enforceable.

In non-technical terms, the Court has held that free licenses such as the CC licenses set conditions (rather than covenants) on the use of copyrighted work. When you violate the condition, the license disappears, meaning you’re simply a copyright infringer. This is the theory of the GPL and all CC licenses. Put precisely, whether or not they are also contracts, they are copyright licenses which expire if you fail to abide by the terms of the license.

I don’t understand all the legalese behind what the court decided, which is why I read Lessig in the first place.

He’s the expert and if he’s “very very happy”, that must be good for all of us who use CC, both as creators and consumers.

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June 20, 2008

Guilty Because We Say So

Remember that whole business of requiring someone to be proven guilty of a crime before being punished here in the US? You know, with actual evidence?

When it comes to copyright infringement, the Motion Picture Association of America (MPAA), believes they should be able to collect damages from people without any of that proving infringement stuff.

“Mandating such proof could thus have the pernicious effect of depriving copyright owners of a practical remedy against massive copyright infringement in many instances,” MPAA attorney Marie L. van Uitert wrote Friday to the federal judge overseeing the Jammie Thomas trial.

“It is often very difficult, and in some cases, impossible, to provide such direct proof when confronting modern forms of copyright infringement, whether over P2P networks or otherwise; understandably, copyright infringers typically do not keep records of infringement,” van Uitert wrote on behalf of the movie studios, a position shared with the Recording Industry Association of America, which sued Thomas, the single mother of two.

The MPAA’s concept is the same philosophy (although certainly not on the same moral level) behind accusing people of being terrorists and locking them away without the bother of a trial.

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June 17, 2008

Information is Out of Control

If you don’t hang around the echo chamber that is the general blogosphere, then you are missing the latest big fight over copyright in the age of the web.

This one is between the Associated Press and just about everyone else. Here are the basics of the dispute:

Last week, the Associated Press decided that the Drudge Retort was in violation of copyright laws because it excerpted parts of AP stories and linked to them. The AP legal team sent a cease-and-desist letter to Drudge Retort’s owner, the technology book author Rogers Cadenhead.

I hope I’m not in trouble for using that short excerpt from a much longer post at the excellent PBS-sponsored blog MediaShift.

Probably not if another writer at MediaShift is to be believed.

In fact, it is very likely that the posts AP is complaining about on Drudge Retort are permissible fair uses under the Copyright Act. First, several posts appear to be offering commentary on recent news items. The use of another’s copyrighted work for the purpose of criticism, news reporting, or commentary, will generally weigh in favor of fair use.

Second, all of the posts use fewer than 80 words from the original AP articles. While there is no bright line that defines how much of a copyrighted work can be copied and still be considered fair use, courts will consider the amount and importance of the material copied in assessing what is permissible. I can’t tell how long the original AP articles were, but it’s likely that all of the articles were substantially longer than 80 words.

Third, it is hard to see how the posting of AP headlines and 80 word snippets could possibly impair the market for the original AP articles (when evaluating fair use claims, courts are most concerned with whether the copying will undercut the market for the original work).

I’m no expert on copyright law but I think I have a good idea of where the line exists between fair use and abuse.

This kind of stupidity by the AP (and other old media companies) only blurs that line and confuses people who don’t pay close attention into believing they have no rights, or at least far fewer than the law allows.

Instead of trying to keep every word they publish in their own corral, the AP should welcome and encourage the thousands of bloggers who send traffic to their sites every day.

They also need to realize that they deal in a very basic commodity, information with a very short half-life.

And once published on the web, it’s pretty much out of their control.

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May 28, 2008

Who Owns Your Ideas?

The Mattel toy company, makers of Barbie, is suing the company that produces the competing Bratz doll line.

The dispute here centers around where and when the designer of Bratz came up with the concept. Mattel claims it was during the time he worked for them, thus giving them the rights to the dolls.

I really don’t care about a fight between two toy companies but the issue of who owns intellectual property is one that comes up occasionally in our school district.

For example, one of my colleagues maintains a site for the teachers at his school (with an invitation to those in other buildings) to share a variety of thoughts, ideas, materials, basically whatever they feel like posting.

It’s hosted from an account he pays for and, like many wikis, it requires a registration to post information, although anyone can come in and read what’s been added.

The about page notes that the material is released under a Creative Commons Attribution Non-commercial Share Alike license.

We had an interesting discussion recently when he asked about copyright issues, specifically about whether our district could claim ownership of the materials teachers had posted to the site.

I didn’t have many answers. I’m not an intellectual property lawyer and I long ago gave up trying to pretend that I understand all the details of copyright law.

However, there may be some connection between the Barbie-Bratz legalities and the creative content produced by teachers, especially as more educators post their work to the web.

Does the fact that you work for a company or school district mean that any ideas created during the time they pay you become their intellectual property?

If I was an hourly worker, I would think that something I produced off the clock was mine. But most of us are on salary, so are our creative processes part of the mix 24/7?

What if I produced some materials during summer break, tried them out in my classroom in the fall, and then wanted to package them for sale to other teachers?

Supposed I started offering paid workshops using concepts repackaged from my experience in the classroom and what I’ve learned from others (there are plenty of examples of this!).

Occasionally there are stories in the news about intellectual property disputes between inventors and their companies, professors and their universities (and students) but they never seem offer a clear answer to the many questions in this area.

If you have any thoughts on the matter, or especially can offers any links to information or examples, please leave them in the comments or send them directly.

This is an interesting issue that potentially could affect many educators as our professional lives online evolve.

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April 16, 2008

Government Trade Secrets

Sometimes trying to explain copyright and fair use to teachers and others can be a confusing exercise. For both of us.

The US system of intellectual property laws are such a strange collection of exceptions that it’s hard to know for sure what’s right and wrong.

However, it doesn’t help the comprehension of us non-legal types when governments try to do stupid things like this.

The State of Oregon has told several public interest groups they cannot publish state laws on their web sites due to copyright restrictions.

Government lawyers claim that since the state has already posted the material on their own web site, with lots of errors and probably in a format that’s difficult to search, they’ve done their duty.

Just disregard that an independent group can probably do a better job than the state of putting the information into a form that people can actually understand and use.

So, is “State of Oregon” also a registered trademark?

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