Peter Black's Freedom to Differ

Podcast on Ice TV Pty Ltd v Nine Network Australia Pty Ltd

Yesterday evening I had a chat with Ben Grubb from Tech Wired Australia about the High Court's decision Ice TV Pty Ltd v Nine Network Australia Pty Ltd.  Ben has posted a podcast of that conversation you can download here.  And see my previous posts on the decision here and here.

What others are saying about Ice TV Pty Ltd v Nine Network Australia Pty Ltd

Yesterday the High Court of Australia handed down its decision in Ice TV Pty Ltd v Nine Network Australia Pty Ltd, bringing to an end legal proceedings that have been going on for the past three years.  (I first blogged about the case in October 2006 here.)  I had hoped to post a summary of the decision as well as some comments by this morning but unfortunately it now appears that I'm unlikely to get the time to write anything until the weekend.  However, a few other Australian blawgers have posted their thoughts on the decision:

• My QUT colleague Kylie Pappalardo has an excellent summary on her blog OctaviaNet here.
• Warwick Rothnie posted his initial thoughts at ipwars.com here before a posting a more detailed summary and analysis last night here.
• On Australian Regulatory Compliance Review David Jacobson highlights a particular interesting part of the judgment here.
• Joshua Gans comments briefly here.
• Law student Katherine Liew has also written up her reaction to the decision here.

I'll continue to update this list as more people post their thoughts on this decision ...

One aspect of the decision that hasn't really been commented on yet was the nature of the divide on the Court.  Although all six justices agreed that the appeal should be allowed, the court divided into two groups of three justices each.  One judgment was authored by French CJ, Crennan and Kiefel JJ, and the other was authored by Gummow, Hayne and Heydon JJ.  This seems to be part of ongoing trend that suggests that maybe there is a divide on the Court emerging between the more established justices (Gummow, Hayne and Heydon JJ) and the more recent appointees (French CJ, Crennan and Kiefel JJ).  In particular, I can't help but wonder if there is minor battle taking place behind the scenes of the High Court between the new Chief Justice and the longest serving member of the Court, Gummow J, for the intellectual leadership of the Court.  If my suspicisions are correct, it will be fascinating to see how it plays out.

Ice TV Pty Ltd v Nine Network Australia Pty Ltd

Update: link fixed.  Judgment also now available on AustLII here.

The High Court of Australian has handed down this morning its decision in Ice TV Pty Ltd v Nine Network Australia Pty Ltd.  I've been following this case since October 2006 (see my first post here) so it is interesting to note that Ice TV has ultimately been successful.  The judgment is not yet available on AustLII but I have posted a copy of the judgment for you to read here.  This is also what Ice TV has posted to their website:

IceTV wins High Court decision - freezes Nine!

April 22nd, 2009

The High Court of Australia has today ruled in favour of IceTV in what has been an epic three year legal battle with the Nine Network.

Six months after the appeal was heard by the High Court and 3 years since the case originally began the High Court has today in Canberra, allowed IceTV’s appeal from the decision of the Full Court of the Federal Court. A comment as to the High Court findings will follow shortly.

In an official statement made immediately following today’s judgment, IceTV’s Chairman and major investor, Mr. Colin O’Brien said the following;

“I would like to thank all our shareholders, our staff, our customers and our business partners. Without their support during the last three years IceTV would not have survived. IceTV now looks forward to a successful future bringing both Free-To-Air TV and content via various partners to viewers in a way that satisfies viewer demand, whilst embracing the future of digital Free-To-Air television in Australia.”

Since it’s incorporation in 2005 IceTV has had one aim: To give TV viewers the freedom to record and manage their TV shows as they choose. To record what they want, skip what they want and watch it at a time that suits them. No longer do viewers have to watch their chosen shows when the Networks tell them or to watch content they would rather skip through. IceTV gives them this choice.

This win today is also a win for our many subscribers who enjoy the benefits of simpler, smarter TV viewing.

IceTV’s General Manager, Mr. Matt Kossatz made the following comment after the High Court’s decision;

“Today’s decision is the news that we (IceTV), our staff and our loyal users have waited 3 long years and worked very hard for. With everything happening with digital television in Australia at the moment, the timing is ripe and almost worth the wait. We are seeing more and more content coming to both free-to-air TV and via the web and as an independent company (not a TV Network), we will always have the ability to put the interest’s of the consumer first in terms of features we offer”.

For more information, please read our following Press Release.

A copy of the High Court’s Judgment is expected to be made publicly available later this week. A copy of the High Court’s Summary of Findings will be made available via IceTV’s website as soon as possible.

Regards,
IceTV

I'll try to post a summary of the judgment later today.

iiNet copyright case update

In November I blogged that iiNet had been sued for copyright infringement by by Village Roadshow, Universal Pictures, Warner Bros, Paramount Pictures, Sony Pictures Entertainment, 20th Century Fox, Disney and the Seven Network (see here).  The case moved forward during the week with iiNet filing their defence on Thursday and a preliminary hearing taking place before Justice Cowdroy on Friday:

THE court showdown between internet service provider iiNet and movie studios has been set for October 5 in the Federal Court.

The Australian Federation Against Copyright Theft (AFACT), on behalf of seven leading film companies and their affiliates and licensees, sued iiNet last November on copyright infringements claims.

AFACT alleges that despite being warned on 18 occasions over a five month period, iiNet didn't stop its customers from illegally downloading and exchanging movies and TV programs.

It is seeking a ruling that iiNet infringed copyright by virtue of not taking reasonable steps to prevent its customers from allegedly dabbling in the illegal activity.

iiNet has said it would vigorously defend itself against the lawsuit.

Entertainment industry heavyweights party to the court action include Village Roadshow, Universal Pictures, Warner Bros Entertainment, Paramount Pictures, Sony Pictures Entertainment, Disney Enterprises, Seven Network and Twentieth Century Fox, owned by News Corp, which also owns The Australian.

In the Federal Court this morning, lawyers for iiNet and AFACT agreed that the trial would last around two weeks.

Justice Dennis Cowdroy also set the next directions hearing date on July 29, as well as a series of deadlines for affidavits to be filed.

Read more here (from Australian IT).  The Age has more details about iiNet's defence:

iiNet filed its defence yesterday, claiming that the Copyright Act and Safe Harbour provisions introduced with the US free trade agreement stipulated that ISPs were not liable for copyright infringement by customers.

...

In its defence, iiNet admitted that the movie studios held copyright to their libraries of films but was not yet ready to concede that its customers illegally downloaded them.

Regardless, it said that it would not derive commercial benefit from customers downloading films illegally and would in fact incur more costs due to the additional bandwidth used.

In court today, lawyers for the movie studios said they provided iiNet with evidence of its customers' copyright infringement yesterday. The studios hired online investigators DtecNet to intercept BitTorrent traffic and record all instances of iiNet users downloading copyrighted movies illegally.

In the face of this evidence, lawyers for the movie studios said they expected iiNet to admit that its customers had downloaded movies illegally. iiNet's lawyers said they were still reading the document but may be willing to concede that point.

Both sides agreed that the main issue in the hearing would be whether iiNet was liable for the actions of its users and whether it in effect "authorised" their copyright infringement by failing to disconnect them when notified of the infringements by the movie studios.

The Australian Federation Against Copyright Theft (AFACT) sent several letters to iiNet notifying the ISP of the infringements, however, in its defence iiNet said the notifications were "mere allegations of copyright infringement" and were forwarded to police.

"The allegations of copyright infringement in the AFACT notifications were not accompanied by sufficient information to demonstrate the veracity of the allegations," iiNet claims.

"iiNet was, and is, legally bound to continue to provide relevant iiNet Services to iiNet Subscribers under its contracts with those subscribers."

iiNet pointed out that it provided access to legal downloads of games, movies, music, radio, sports and TV content through its Freezone service. (www.iinet.net.au/freezone)

It said it "did not sanction, approve, or countenance" alleged copyright infringement by any iiNet user.

Read more here.  I was interviewed about the iiNet lawsuit for ABC's Radio National PM program on Friday.  You can listen to the report or read the transcript here.

Pirating the 2009 Oscars

Waxy has posted some amazing data on the availability of unauthorised copies of Oscar-nominated movies.  The data reveals that virtually all movies have been posted to file sharing networks and that the source for almost all of those movies are screener copies distributed by the studios and not the poor quality camcorded copies that the industry claims is the primary source of movie piracy.  Interestingly, the average time from the time screeners are received by Academy members to its leak online is just six days.

Read Waxy's post here.

Lose-lose: The New York Times and GateHouse Media settle their dispute over linking

The New York Times Company and GateHouse Media have settled the copyright infringement suit Gatehouse Media filed last month:

GateHouse had accused The Boston Globe and its website, Boston.com, both of which are owned by The New York Times, of violating copyright law by posting material without permission from WickedLocal.com, a GateHouse website covering small towns in Massachusetts.

GateHouse, which is based in Fairport, New York and operates hundreds of daily newspapers and local websites, was objecting to the publication on Boston.com of headlines and lead paragraphs of stories from WickedLocal.com.

The case was being closely watched by many in the media industry because of potential legal implications for the common practice of linking between news sites and the use of links to content on other sites by news aggregators.

The New York Times had argued after the lawsuit was filed last month that linking to other websites is widespread and that Boston.com provided a link back to the original stories on WickedLocal.com.

A trial had been scheduled to begin in a US District Court in Boston on Monday but an agreement was reached over the weekend.

Under the terms of the settlement, neither party admitted any wrongdoing and in the absence of a court ruling, the case failed to bring any legal clarity to the situation.

Under the settlement, GateHouse agreed to put in place technical safeguards that would prevent Boston.com from automatically "scraping" material from GateHouse sites and Boston.com agreed not to try to circumvent the barriers.

Boston.com would also discontinue its use of RSS feeds from GateHouse sites and take "reasonable commercial steps" to remove headlines and lead paragraphs of GateHouse stories from Boston.com by March 1.

But the agreement did allow both websites to continue providing links to one another -- so long as they did not do so through RSS feeds or "scraping."

Read more here (from Google News).  Download a copy of the settlement here.   Techdirt's Mike Masnick sums up why this settlement isn't good news for anyone:

It's bad for the NY Times, because in settling they've almost guaranteed that plenty of other companies will now come seeking similar "settlements." It's bad for GateHouse Media because in winning "the battle" they're losing the war. The NY Times/Boston Globe will no longer be sending them the traffic they were getting in the past. It's hard to describe the level of pure cluelessness that goes into actively turning away the kind of traffic a major media publication can provide. It's bad for readers of both sites, because it limits the usefulness of the content they get. And... most importantly, it's bad for everyone in failing to have a hard and fast precedent set that linking to such sites and including the headline and a snippet are clearly fair use. What a shame.

Read more here.

Comparing government copyright on the web: from whitehouse.gov to pm.gov.au

One feature of US President Barack Obama's relaunched whitehouse.gov website was the inclusion in the copyright notice the provision that all third-party content on the site is licensed under a Creative Commons Attribution 3.0 License:

Copyright Notice

Pursuant to federal law, government-produced materials appearing on this site are not copyright protected. The United States Government may receive and hold copyrights transferred to it by assignment, bequest, or otherwise.

Except where otherwise noted, third-party content on this site is licensed under a Creative Commons Attribution 3.0 License. Visitors to this website agree to grant a non-exclusive, irrevocable, royalty-free license to the rest of the world for their submissions to Whitehouse.gov under the Creative Commons Attribution 3.0 License.

Read it here.  Canadian copyright scholar Michael Geist compared the copyright notice on whitehouse.gov to the Prime Minister of Canada's copyright notice:

The material on this site is covered by the provisions of the Copyright Act, by Canadian laws, policies, regulations and international agreements. Such provisions serve to identify the information source and, in specific instances, to prohibit reproduction of materials without written permission.

Non-commercial Reproduction

Information on this site has been posted with the intent that it be readily available for personal and public non-commercial use and may be reproduced, in part or in whole and by any means, without charge or further permission from the Office of the Prime Minister. We ask only that:

• Users exercise due diligence in ensuring the accuracy of the materials reproduced;
• The Office of the Prime Minister be identified as the source department; and,
• The reproduction is not represented as an official version of the materials reproduced, nor as having been made, in affiliation with or with the endorsement of the Office of the Prime Minister.

Commercial Reproduction

Reproduction of multiple copies of materials on this site, in whole or in part, for the purposes of commercial redistribution is prohibited except with written permission from the Government of Canada's copyright administrator, Public Works and Government Services Canada (PWGSC). Through the permission granting process, PWGSC helps ensure individuals/organizations wishing to reproduce Government of Canada materials for commercial purposes have access to the most accurate, up-to-date versions. To obtain permission to reproduce materials on this site for commercial purposes, please contact:

Public Works and Government Services Canada
Publishing and Depository Services
350 Albert Street, 4^th Floor
Ottawa, Ontario
Canada
K1A 0S5 or
copyright.droitdauteur@pwgsc.gc.ca

Giest concluded that:

While this is better than some other Canadian government departments (who require permission for all uses), it is still not good enough.  First, Canada should drop crown copyright so that there is no copyright in government-produced materials.  Second, there is no need for a distinction between commercial and non-commercial - Canadians should be free to use the government-produced materials for either purpose without permission.  Third, third-party materials, which are Creative Commons licensed in the U.S., are subject to full restrictions in Canada.  Admittedly few people take the time to read these terms and conditions, yet they send a message about the openness, transparency, and a commitment to public engagement with government.  The White House has changed its approach and now the Prime Minister should do the same.

Read more here.  Geist's post made me curious as to what the position would be in other countries with a similar copyright and political system, so I looked at the respective websites for the Prime Minister of Britain and the Prime Minister of Australia.  This is the copyright notice for number10.gov.uk:

Material on this site is subject to Crown copyright protection unless otherwise indicated. The material may be downloaded to file or printer without requiring specific prior permission. Any other proposed use of the material is subject to the approval of Her Majesty’s Stationery Office (HMSO).

Applications should be made to:

HMSO
St Clements House
2 - 16 Colegate
Norwich
NR3 1BQ
United Kingdom

Tel: +44 (0) 1603 621000
Fax: +44 (0) 1603 723000

Read it here.  This policy is even more restrictive than the copyright notice on the Prime Minister of Canada's website.  First, it provides that all material on the website is subject to Crown copyright.  Second, this policy does not allow for reproduction for non-commercial use; rather it requires premission regardless of whether the use is for commercial or non-commercial purposes.  A further disappointing feature of this copyright notice is that applications for permission cannot be made online or on email.

Fortunately, the copyright statement on the website of the Prime Minister of Australia is not as restrictive:

The material on this website is copyright. You may download, display, print and reproduce (copy) this material in unaltered form only (retaining this notice) for your personal, non-commercial use or use within your organisation. Apart from any use as permitted under the Copyright Act 1968, all other rights are reserved. If you wish to republish any material on your own website or in a publication of any description, please see further guidance under Republishing Material from this Website below.

Requests and inquiries concerning reproduction and rights should be addressed to: 

Commonwealth Copyright Administration
Attorney General's Department
Robert Garran Offices
National Circuit
BARTON ACT 2600

or posted at http://www.ag.gov.au/cca.

Republishing Material from this Website

All the material on our website is subject to copyright. You must not:

• Unlawfully use any of the material from this site, or
• Pass off content from this site as your own. This includes copying sections or re-using parts of the site under this pretense.

If you wish to republish or quote any material from the Prime Minister's website in a publication of any description you must seek written permission from the Department of the Prime Minister and Cabinet which manages this website. Written enquires should be directed to:

Publishing Services Manager
Department of the Prime Minister and Cabinet
PO Box 6500
CANBERRA ACT 2600
Australia

Read it here.  This notice is quite similar to the Canadian notice in that it allows personal, non-commerical use, but does not go anywhere near as far the new whitehouse.gov website.  Presuambly nations like Canada, Britan and Australia share Obama's ideal of transparency and accountability in government, yet these values are not yet reflected in their copyright policies. 

As a post on the Creative Commons website suggests, the rest of the world should follow the lead site by Obama and whitehouse.gov:

While the decision to use CC on Whitehouse.gov may appear uncontroversial in light of the fact that US federal works are not subject to copyright protection, very few other countries share this policy ... This is precisely where Creative Commons can help. Obama’s far sighted choice should serve as an example for other governments around the world: now is the time to start sharing.

Read it here.

Colbert's Remix Challenge

When Larry Lessig appeared on The Colbert Report two weeks ago to talk about this latest book, Remix, he basically invited people to remix the interview over the protests of host Stephen Colbert's (see here).  Now Colbert has responded to some of the remixes that have popped up online (for some examples see here):

The Colbert ReportMon - Thurs 11:30pm / 10:30c

Stephen's Remix Challenge

Colbert at Christmas
Colbert Christmas DVD

Green Screen
Bill O'Reilly Interview

Copyright blocks The Wonder Years on DVD

Techdirt reports that thanks to problems with music licensing rights, The Wonder Years is unlikely to be available on DVD anytime soon:

One of the tragedies of ridiculous music licensing practices has been that TV shows that involved great music can no longer be seen -- because when they were first aired, there was no aftermarket, and so no rights were cleared with the music owners. The famous case is the TV show WKRP in Cincinnati, which tried to get around the issue by replacing all the great classic rock in the original, with crappy new music -- really harming the quality of the show. Tom sent in a note pointing out that the classic 80s TV show The Wonder Years is actually facing a similar issue, and because of it, the show is not available on DVD. The show was famous for integrating great music into the overall show -- clearing all that music for a DVD release is apparently too difficult, leading to an overall loss to society and culture.

Read it here.

12 January 2009: a decisive day in the history of intellectual property?

Three days ago, YouTube permanently disabled the account of critic and commentator Kevin B. Lee, suggesting that YouTube is cracking down on critical video essays posted to the site:

Kevin’s video essays wed critical commentary or conversation to clips from copyright films in a “teaching” context, and most of them were created as part of his project to “view every film on the list of 1000 greatest films of all time, as compiled by They Shoot Pictures, Don�t They?.” Kevin says he received a copyright warning earlier today in regards to his video essay on …And God Created Woman. It was the first time YouTube had ever slapped his wrist over one of the video essays, although they had contacted him about two unaltered clips in the past, one from The Sorrow and Pity and one from Dames. Three strikes, and Kevin’s out — YouTube has removed all 70 of his videos, including 40 original video essays. If you’ve embedded one of these in your own blog, that embed will now be unplayable.

Kevin has his own personal archive and can potentially re-upload the clips; he says he’ll investigate other online video sharing options. But YouTube is still the biggest game in town, and Kevin says he’ll miss it. “I’ll miss not only the unparalleled audience reach, but the cool stats that YouTube had to offer (like learning that viewers would rewind repeatedly to watch Bardot’s bare ass in my video essay for …And God Created Woman),” he noted in an email. “But that’s nothing compared to having the right to share my work in the first place.”

Kevin is one of a number of people producing film criticism via online video who have had trouble with YouTube of late. These videos represent the first real advance in film criticism as an art form in, at least, decades; other video sharing platforms may remain more friendly to copyright borrowers for awhile, but ultimately this practice may have to either move underground or disappear.

Read more here (from SpoutBlog).  In a passionate (and lengthy) post on The House Next Door, Matt Zoller Seitz thinks 12 January 2009 might be a decisive day in the history of intellectual property:

Kevin has copies of all his work, and I'm sure it will show up again somewhere, sometime. But the obliteration of YouTube as a global platform for his voice is a crime of greater magnitude than anything he did to create the video essays in the first place. YouTube is the town square of the 21st century—rather like a gigantic virtual mall that is, technically speaking, a private space, but which operates as a public sphere: a gathering spot, a cultural and political crossroads. By scourging Kevin's work from this crossroads and banning his video essays—and, potentially, all similar work—from YouTube, the company is allowing the powerful to muzzle the near-powerless. And it is endorsing the idea that in cases involving intellectual property law and the Internet, filmmakers can be deemed guilty, silenced, then made to plead for their right to speak.

There's also an unspoken class bias at work here, a bully mentality that chooses its targets based on who's likely to fight back and win. Consider commercial TV, which is filled with programs that routinely air copyrighted material without permission for purposes of journalism, satire or simple entertainment. The Daily Show and The Colbert Report don't ask permission to air any of the news clips they slice and dice each night for yuks; they consider a network's onscreen logo to be acknowledgment enough, and their assumption is almost never challenged. Talk shows don't think twice about airing a rival network's news footage or clips from a popular or notorious TV program in order to spark a discussion or anchor a satirical montage. Infotainment shows compile film clips for use in movie star obituaries—not just electronic presskit snippets meant for PR purposes, but clips from older movies that predate EPKs and that might have originally aired on some corporate competitor's channel—and the movie's copyright holders don't object. The shows that feature such clips are routinely repurposed on the parent company's websites, often with ads and sometimes with embedding functions that allow the clip to be reproduced by bloggers, and there are not currently, to the best of my knowledge, any lawsuits seeking to stop the practice. Kings wink at each other. Peasants get the axe.

Kevin B. Lee is not Napster; he's not some guy uploading every frame of every Bette Davis movie for kicks; he's not even Goldentusk. He's a critic and scholar doing work that could be considered, at worst, compelling free ads for essential pop art. YouTube, by reflexively siding with whichever party has more money and power, has renounced its founding spirit.

There should be a way to distinguish between piracy-for-profit (or unauthorized, free redistribution) and creative, interpretive, critical or political work that happens to use copyrighted material. And there must be an alternative to unilateral takedowns. The issues aren't just legal, they're practical. History has demonstrated that there's no copyright protection that can't be defeated, no corporate edict that can't be subverted. And given the technological sophistication that permits digital watermarking, there ought to be a way to make sampling of any sort, authorized or not, scaled to suit the filmmakers' means, profitable for the rights holders, and as fully automated as the copyright-infringement-scouring that's currently happening all over the Internet.

Whatever the solutions, they should be something other than one-size-fits-all. Digital watermarking abusers are engaged in an unwinnable war—one that, in its present state, will only produce collateral damage and make them increasingly unsympathetic, and therefore more likely to be demonized and resisted. The entertainment industry's unwillingness to recognize the plain fact that people have complex, idiosyncratic and yes, possessive relationships to songs, films and TV shows—relationships that are qualitatively different from their relationships to cars, hats, shoes and beer—contributes to a culture of calcified mutual resentment, and a public mindset (manifested most vividly in generations that cannot remember life before the Internet) that sees big entertainment companies as lead-footed dopes—Elmer Fudd blasting every rabbit hole in sight hoping to hit Bugs Bunny.

The situation as it stands is immoral, untenable and, I believe, a violation of fundamental rights. Almost nobody taking part in the early phases of digital media has the money to fight the Googles and Viacoms of the world, and of course that's what the takedown gremlins are counting on; injustice not resisted eventually becomes tradition. I fervently hope some brave, knowledgeable lawyer will see that there's more at stake here than the ethics of ripping and posting scenes from movies, and make a test case of Kevin's unconscionable treatment. The circumstances may seem mundane, but the implications are grim as can be. When individuals and governments permit corporations to dictate the terms by which their culture may be examined, the First Amendment becomes just another pile of words.

Read more here.

Mad Men Twitter fan fiction

Business Week has an interesting story on how Mad Men fans are using Twiiter in a way that is "blurring the lines between brand infringement and brand extension":

On AMC's hit show Mad Men, character Peggy Olson is the ambitious secretary-turned-copywriter at fictional Manhattan advertising agency Sterling Cooper. On the show, which is set in 1962, she's excellent at keeping secrets—such as how she bore a child out of wedlock. Off the show, she's more forthcoming. Olson—or rather, a person posing as her—uses the microblogging service Twitter to give fans a peek into her inner thoughts: "The men in the office are headed to the Oyster Bar. I'm going to the library. It doesn't seem quite fair," she wrote on Aug. 25.

Olson isn't the only Mad Men character on Twitter. Sterling Cooper creative director Don Draper began it all by issuing his first status update on Aug. 12. A few days later, seductive secretary Joan Holloway joined the fray, writing on Aug. 19, for instance: "Hoping @don_draper will be eating lunch outside of office again today, as he usually does. There's a sale on intimates at Macy's." That was the day Peggy Olson popped up.

In all, more than 15 Mad Men characters are Twittering, and more appear every week. All are posted by individual fans of the show and to date, none are known to be associated with the series. At least one blogger has speculated that Don Draper, Peggy Olson, and the others are actors hired by AMC interactive marketing agency Deep Focus, but AMC spokeswoman Theano Apostolou emphatically denies it. Several of the Mad Men Twitterers also said in interviews that they're independent fans, unaffiliated with Mad Men or AMC.

The unofficial Mad Men are using Twitter to push fictional characters into a new digital frontier—at the same time blurring the lines between brand infringement and brand extension. While a show's creators and distributors might ordinarily welcome the publicity that comes with seeing it depicted in a positive light beyond normal viewing times, they're also on alert for signs that their brand is being misused in some manner. Content owners are especially vigilant in an age when users can spread content quickly by means of social media, such as Facebook or Google (GOOG)'s YouTube. In July, Hasbro (HAS) sued the creators of an unauthorized version of its Scrabble word game (BusinessWeek.com, 7/24/08) that had become wildly famous on Facebook. For a time, Twitter disabled Mad Men accounts amid inquiries from AMC as to their origin—though AMC denies having asked for the accounts to be blocked.

Read more here.

Remixing Lessig and Colbert

When Larry Lessig appeared on The Colbert Report during the week to talk about this latest book, Remix, he basically invited people to remix the interview (see here).  Here are two audio remixes: one from Sam and another from Jim Vanaria.  Here are two video remixes:

And the audio to the show is available to be remixed on ccMixter here.

Lessig on Colbert

Stephen Colbert talks to Larry Lessig about this latest book, Remix:

The Colbert ReportMon - Thurs 11:30pm / 10:30c

Lawrence Lessig

Colbert at Christmas
Colbert Christmas DVD

Green Screen
Bill O'Reilly Interview

Who killed online Scrabble?

Techdirt has a good post on how Hasbro and Mattel killed online Scrabble:

We've been chronicling just how badly both Hasbro and Mattel screwed up in responding to the massive success of Scrabulous on Facebook. The ridiculously popular application was attracting over 500,000 users every day and (amazingly) making Scrabble cool again, pumping up sales of the physical board game. But, of course, the intellectual property lawyers freaked out and said "this must stop." The resulting legal threats and lawsuits created quite a lot of backlash and anger (and a boycott of Hasbro games). Venturebeat is now looking at the aftermath, and shows that the fight effectively killed all momentum for Scrabble on Facebook. Part of the problem may be that the game is now fragmented, with a Hasbro version serving some countries, a Mattel version serving others and the Scrabulous makers' "modified" Wordscraper on the market as well. The end result is that each has significantly fewer users than Scrabulous had. In fact, the monthly number of users pales in comparison to the daily number of users that Scrabulous had. Great way to kill a wonderful (free) promotion that was attracting thousands of new fans to the game.

Read it here.

Important DMCA copyright decision

Wired's Threat Level Blog reports on an important copyright decision out of the US:

Online video-sharing sites are scoring another major legal victory, as a federal judge is ruling that the Digital Millennium Copyright Act protects such sites from copyright violations if they abide by takedown notices as the DMCA prescribes.

The case was brought by Universal Music Group, which claimed that San Diego-based Veoh -- financially backed by Time Warner and Michael Eisner – engaged in wanton copyright infringement because it allowed users to upload and store the music concern's copyrighted videos. U.S. District Judge Howard Matz agreed with Veoh that its business model complied with the 1998 Digital Millennium Copyright Act's so-called safe harbor provisions.

The case is similar to other suits targeting YouTube, MySpace, MP3Tunes and others. And it marks just the second time that a federal judge has ruled the DMCA protects video-sharing sites – even user-generated sites like Veoh that transform user-uploaded content into flash-formatted videos that can later be accessed by users.

...

Both rulings are not binding on other judges, however. And neither the U.S. appellate courts nor the U.S. Supreme Court has directly addressed the issue.

Check out the Electronic Frontier Foundation's take by Fred von Lohmann on the topic.

Read more here.

"The Christmas Classic that Almost Wasn't"

Ronald J. Rychlak explains how copyright law helped to make It's a Wonderful Life a Christmas classic:

The other night, along with many other Americans, I watched the Frank Capra classic It's a Wonderful Life. Starring Jimmy Stewart and Donna Reed, the movie has become a Christmas staple -- but it was not always that way, and how it attained its holiday status has as much to do with the intricacies of intellectual property law as it does with the storyline and the production values.

Read how here.

(Hat tip: The Volokh Conspiracy.)

Today Popeye, tomorrow Mickey Mouse?

This week the cartoon character Popeye came out of copyright protection and into the public domain.  Techdirt observes that it "be quite interesting to see what happens next, as it will be something of a preview of the eventual Mickey Mouse fight that will be coming":

Disney was able to continually extend copyright to keep Mickey Mouse out of the public domain for years -- in part because copyright wasn't an issue that the general public cared about or that really impacted them in a noticeable way. Obviously, over the past decade, that's changed quite a bit. Disney must know that it will have an awfully difficult time extending copyright yet again (though, the company will almost certainly try). In the meantime, though, what happens with Popeye in the UK may be a rough guide as to what will happen should Mickey Mouse hit the public domain.

And... the reality is that not very much different might happen.

That's because even though the copyright on the character has fallen into the public domain, the trademark remains -- and the current holder of the Popeye trademark in the UK, King Features (owned by Hearst), is expected to "protect its brand aggressively." That means people will still be quite limited in how they can use Popeye. If King Features is able to successfully use trademark law to keep Popeye under control, perhaps Disney won't go quite so crazy trying to extend the copyright on Mickey Mouse again... Either way, this little "experiment" will be worth watching.

Read it here.

Guilt: a new way to stop piracy?

Techdirt wonders whether you can guilt someone into not pirating software:

A bunch of folks have been submitting this story about USB Overdrive X's response to anyone who uses a pirated key to use their software. Basically, the company allows you to go ahead, but tells you (in a very human voice) that it knows it's a pirated code, and you should be ashamed of yourself:

It's definitely a much better strategy than annoying plenty of users (even legit ones) or threatening to sue or anything. And, I have no doubt that it's probably even effective on the margins among a few folks who appreciate being treated at least somewhat as a human, rather than a criminal. But, the company is still going to face this issue long term, and it seems like a better solution is to figure out business models that don't view such sharing as piracy, but a way to further extend a business.

Read it here.

RIAA comes to its senses

The Wall Street Journal Law Blog reports that the Recording Industry Association of America is rethinking its litigation strategy:

Major news for online music geeks: The recording industry plans to lay down its litigation offensive against music pirates in favor of a more PR-friendly, if not more effective, strategy. Instead of suing thousands of people for stealing tunes via the Internet, it will rely on the cooperation of Internet-service providers.

As the WSJ explains:

Instead, the Recording Industry Association of America said it plans to try an approach that relies on the cooperation of Internet-service providers. The trade group said it has hashed out preliminary agreements with major ISPs under which it will send an email to the provider when it finds a provider’s customers making music available online for others to take. . . .Depending on the agreement, the ISP will either forward the note to customers, or alert customers that they appear to be uploading music illegally, and ask them to stop. . .

We like to think that, more than PR problems, the RIAA changed course because of a recent decision by a federal judge in Minnesota.

On September 25, the Law Blog asked whether liability for music file-sharing was on its way out the door. Why? Because last year, in the first ever file-sharing trial, a jury found Jammie Thomas, a single mother, liable for copyright infringement for offering to share 24 songs on the Kazaa file-sharing network. Thomas got hit with a $222,000 verdict. At trial, Judge Michael Davis told the jury that merely making songs available for distribution — known in copyright circles as the “making available” standard — was enough to constitute a copyright violation. In other words, the record companies didn’t have to prove actual distribution took place. But then, in September, Judge Davis not only decided his instructions were wrong, but he also implored Congress to change copyright laws to prevent excessive awards against individuals in similar cases.

Read more here.  I'd also like to think that the tireless work of Ray Beckerman has contributed to this decision.

KickYouTube

Mashable covers an easy way to download YouTube videos:

Downloading YouTube videos isn’t a feature supported natively by the site: copyright issues are the likely reason. And yet, often we find ourselves wanting to download a great video to our desktops for remixing or offline viewing.

KickYouTube serves up an elegantly simple solution: simply go to the YouTube video you’d liek to download and insert the word “kick” at the start of the URL. The final url would look something like http://kickyoutube.com/watch?v=39pZ1r3MG2Q, and options to download the clip are provided at the top of the page.

You don’t need me to tell you that having YouTube in your URL is blatant trademark infringement, however, so don’t expect this method to work for long. For more solutions, try our list of 20 ways to download YouTube videos…most of which have avoided the wrath Google’s lawyers.

[via Lifehacker]

Read it here.

A really silly idea: a used MP3 store

The Tech Law Prof Blog is quite rightly dismissive of the idea of a used MP3 store:

As ham fisted as the RIAA and labels can be about dealing with piracy issues, there are times when someone comes up with an idea to sell music that is so bad, it makes the labels' position look good.  Enter Bopaboo, a used online MP3 store.  They're banking (literally) on the concept that the first sale doctrine applies to music files.  Here's how it works:  A seller uploads unprotected mp3 files to Bopaboo for sale.  The user agreement requires the uploader to delete any copies on the hard drive.  Bopaboo keeps 20% of the sale price and license holders get compensated.  A tracking system prevents a seller from uploading the same file even if it has been altered. 

OK, what's wrong with this picture?  Though the labels have been forced by economics and customer demand to sell versions of songs in an unprotected format, their fear of files being copies infinitely is still valid.  Bopaboo merely legitimizes it as valid files may have come from CDs, pirate networks, anywhere.  There is nothing that enforces the service terms that the source files be deleted.  And copied.  Again and again.  Sure that can happen anyway.  But for someone to think they can make money off a market of duplicated files as a legitimate business is nuts.  Certainly when someone sells a used CD under the first sale doctrine they lose possession of the disc.  Technology (if not the law) allows the seller to create a copy of that disc.  So what's the difference?  Well, no respectable used CD outlet will traffic in CD-Rs.  It's virtually certain death by lawsuit.  That constraint doesn't exist online in a used file market.  It's naive to base a business model on user honesty given the level of piracy that exists.  I agree that labels have to swallow hard and allow user freedom when they sell music. Bopaboo, however, is not going to cut it.

See stories in Billboard, Tech Digest, and Web Pro News.

Read it here.

"To Catch a (Joke) Thief"

U.Va. News reports on a study of copyright, social norms and stand-up comedy:

In part, it was a viral video of two well-known comedians hurling obscenities at each other that prompted a pair of University of Virginia law professors to take a serious look at how professional comics protect themselves from joke theft.

In February 2007, stand-up comedians Joe Rogan and Carlos Mencia squared off on stage at a prominent Los Angeles comedy club after Rogan accused Mencia — whom he dubbed "Carlos Menstealia" — of pilfering material from other comedians. A video of the altercation garnered more than 2 million views online and countless mentions on blogs and Web sites.

"The two of them had an almost physical fight on stage where they were yelling at each other about the accusation of joke stealing, and Mencia was denying it," said Chris Sprigman, who with faculty colleague Dotan Oliar authored an upcoming Virginia Law Review article, "There's No Free Laugh (Anymore): The Emergence of Intellectual Property Norms and the Transformation of Stand-Up Comedy."

The Mencia-Rogan argument led the two intellectual property law scholars to an interesting question: With scant legal protection for their work — copyright law plays little role in comedy — why are stand-up comedians willing to invest time and energy developing routines that could be stolen without legal penalty?

After almost a year of research that included interviews with comedians ranging from comedy club circuit neophytes to seasoned veterans of television specials, Oliar and Sprigman found that the world of stand-up comedy has a well-developed system of social norms designed to protect original jokes — and that the system functions as a stand-in for copyright law.

"Most of our research over the last year has been trying to piece together all the attributes of this system that comedians have started up and run for themselves," Sprigman said.

In their paper, published in the December edition of the Virginia Law Review, Oliar and Sprigman identify several of the informal rules that govern stand-up comedy.

...

For Sprigman and Oliar, the study of stand-up comedy has ramifications for the larger world of intellectual property law, or the body of law that protects creative works through devices such as patents, trademarks and copyrights.

The underpinning of such law is the notion that without it, theft would be so rampant that there would be no incentive to create or innovate, Oliar said.

"For us, the most salient observation is that the law has not done the job of protecting jokes, but the joke market has not failed. The market is substituting this set of informal rules for the formal ones, and as far as we can see it's doing a pretty good job," Sprigman said.

...

Both men stressed that joke theft is not common in the world of stand-up comedy, and that most comedians pride themselves on creating original material.

One potential downside to the social norm system as opposed to formal legal protection is that social norms might not be effective at punishing comedians who get to the top of the field, they said.

"If a successful comedian doesn't care too much about the community's feelings toward him, then he's hard to discipline," Sprigman said. "But keep in mind that the formal law doesn't always work either. There are all kinds of copyright rules that apply to the music industry, but there are millions of people illegally downloading songs.

"There's always a slippage between the law on the books, or the rules in the norms system, and the ability of these rules to be enforced."

Read more here.

Tech Wired Australia podcast

This afternoon I was interviewed by Ben Grubb from Tech Wired Australia on the iiNet copyright lawsuit.  You can listen to or download the podcast here.

Weatherall on the iiNet copyright lawsuit

In between papers yesterday at the Media, Communications and Public Speech Conference I posted a link to a news report about the iiNet copyright lawsuit (see here).  Although I haven't had time to look into or think about the case any further, Kim Weatherall has obtained a copy of the statement of claim and posted her initial thoughts:

As I noted yesterday, a legal action has been launched by some 34 applicants from the television and movie industry against Australian ISP iiNet, alleging that iiNet has authorised copyright infringement by failing to take (adequate) steps to prevent sharing and downloading of films and TV shows via protocols like BitTorrent. A kind little birdie has sent me a copy of the Statement of Claim, so I have a bit more info. It makes for some interesting reading.

There are a number of interesting questions at the heart of this potential case:

1. What, exactly, are ISPs required to do when they become aware that users are potentially infringing copyright? Do they have to terminate people alleged by the movie industry to be ‘repeat infringers’?
2. How much responsibility will Australian courts put on intermediaries for ‘doing something’ about copyright infringement? So far, Australian courts have been pretty ready to impose liability on people they thought were ‘profiting from copyright wrongdoing’ - Kazaa with its P2P network, or Cooper with his ‘mp3sforfree’ website and his ISP host. What about others whose nefarious or infringing purpose is not so obvious? What, in other words, of more ‘ordinary’ service providers?
3. When the legislation requires that ISPs, in order to ‘gain absolution’ or immunity from damages, should ‘adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the accounts of repeat infringers’ - what does that really mean? Is it sufficient to terminate only those found liable for infringement? Is the court allowed to determine whether the policy is real or sufficient?

Politically, there are some equally interesting questions. Will the Internet industry respond to the lawsuit by looking for a settlement deal that goes some way towards creating the kind of ‘notice and terminate’ system that copyright owners have been pressing for? Will the government’s past approach of protecting ISPs from liability in order to further the digital economy hold? Or, has the tide turned: are we now in a climate where the courts, like the government, decide to hold ISPs to a higher standard, just as the government is trying to get ISPs to engage more actively in filtering adult content? And is this all just an attempt to promote a certain filter that purports to filter both porn and copyright infringement…?

Read the rest of her initial first impressions here.

iiNet sued for copyright infringement

This news report was drawn to my attention during a break today at the Media, Communications and Public Speech Conference:

The Australian film and television industry has launched a major legal action against one of Australia's largest internet service providers for allegedly allowing its users to download pirated movies and TV shows.

The action against iiNet was filed in the Federal Court today by Village Roadshow, Universal Pictures, Warner Bros, Paramount Pictures, Sony Pictures Entertainment, 20th Century Fox, Disney and the Seven Network.

Mark White, iiNet's chief operating officer, said the company did not support piracy in any form but it could not disconnect customers just because the movie industry claimed they engaged in illegal downloading.

Adrianne Pecotic, executive director of the Australian Federation Against Copyright Theft (AFACT), said the action followed a five-month investigation by the industry.

...

The action follows months of wrangling between the movie and music industries and ISPs over the lengths to which internet providers need to go to prevent illegal file sharing on their networks. The industry wants ISPs to agree to cut off services for those who repeatedly infringe copyright.

However, internet providers have argued that the courts already provide adequate remedies for copyright holders and they should not be forced to police their users.

"This is a very important test case for the internet industry in Australia," said Peter Coroneos, chief executive of the Internet Industry Association.

"It will test the effect of the safe harbour provisions that were introduced with the US free trade agreement, which provides immunity for ISPs in certain circumstances such as transmission, hosting, caching and referencing activities."

Coroneos said the IIA board will shortly convene to develop a response on the legal action against iiNet.

But while the movie industry has now stepped up its aggression, the music industry has yet to take legal action against any internet providers over the issue.

Read more here (from the Sydney Morning Herald).