More SOPA to come? Google to publicly document content delisted for copyright infringement

Is this transparency, or is the pressure in Washington heating to a boil?

The Official Google Blog today announces that – as they phrase it – their commitment to transparency, they will now be publishing all content that has been removed from their search results as a result of a copyright infringement challenge. They further report that they get an average of 250,000 such requests per week:

We’re starting with search because we remove more results in response to copyright removal notices than for any other reason. So we’re providing information about who sends us copyright removal notices, how often, on behalf of which copyright owners and for which websites. As policymakers and Internet users around the world consider the pros and cons of different proposals to address the problem of online copyright infringement, we hope this data will contribute to the discussion.

“Proposals” include PIPA, SOPA and a suite of other draconian policies laid out by greedy entertainment industry lawyers and their toadies in the various halls of power around the globe. A website that centralizes all data on just how abusive one company or another might be in pursuing copyright “infringement” cases would be illuminating indeed. Significantly, Google says they plan on starting their data dumps with July 2011 data, just a few months prior to the introduction of SOPA in the US House of Representatives.

But then, what Google accepts and does not accept as copyright infringement is itself subject to scrutiny. Do they really publish everything, or do they vet the released data? Time will tell.

Media Technology

Copyright Run Amok: Chrysler’s Superbowl ad blocked on their own YouTube channel

An amusing copyright snafu for your Super Bowl Monday: Chrysler has a social application running on their YouTube channel, inviting you to share their inspirational advertisement from the Super Bowl last night. I didn’t get to see it last night, so I thought I’d go ahead and check it out this morning.

One problem, though: the advert that Chrysler paid for apparently has an image of NFL stuff in it. So the NFL apparently has blocked it. Perhaps YouTube’s own bots have blocked it automatically, impossible to say for the moment.

But oh, what a deliciously embarrassing copyright snafu! I mean: silencing the voices of common people is what it’s all about. But you’re not supposed to block the inalienable corporate right to make money. Everybody knows that.

chrysler’s Channel – YouTube.


Wow. Peter and the Wolf is off-limits? Copyright law run amok

The First Amendment Center has a shocking article up about a case currently before the SCOTUS involving Public Domain works.

Public Domain works are those whose copyright has expired and are generally regarded by most to be “free” works. Shakespeare plays and classical music are two examples of things which, while you may pay for a printed version, are entirely free at least in the sense of intellectual property. You don’t have to pay anyone to perform a Mozart concerto and you can quote Shakespeare to your hearts content without fear of copyright infringement lawsuits.

But as the article below notes, that’s not always the case, as Congress passed a law in 1994 making it possible to return works from the public domain back into copyrightable properties. This case concerned works considered in the public domain in the United States, but still copywrited in Europe. The effect of that law has been that the copyrights to works of classical music – such as Peter and the Wolf, the song most of us learned to identify musical instruments by in the second grade – have been reacquired and are now off-limits to any but the wealthiest classical orchestras (sort of an oxymoron, really).

So here we have a case of copyright where its not software, not medical technology or any of the other hot-button IP issues. Yet this closing of public domain access can have a potentially chilling effect on the arts in schools. Of course, it is a free speech issue. Especially since the “contours of copyright law,” as they are referred to in the SCOTUS case, are designed with a pretty clear intent of giving inventors control over their own works *while they live* and bequeathing those rights to the public after the inventor’s death. Its meant both to eliminate the possibility of unlimited monopoly and also to allow ideas to flow freely.

Whats at stake for free speech in copyright case | First Amendment Center – news, commentary, analysis on free speech, press, religion, assembly, petition.


ASCAP wants performance royalties from iTunes

Radio people know all about it. When a song is played on the radio – a public “performance” of music by an artist – that artist is entitled to a performance royalty. The artist gets paid a penny or two for each “performance” of their song and really, that’s the way most bands get paid, as their albums almost never really clear the cost of production.

But now ASCAP – the American Society of Composers, Authors and Publishers – wants to extend those same rights onto download sites like iTunes, Amazon and others. As the article below discusses, that idea has been scuttled by a lower Federal court and now the SCOTUS refuses to hear the case. Don’t think this will be the end of it, though.

Here’s the thing: its hard to imagine how buying a single MP3 differs from buying a CD, the process of which does not involve paying performance royalties. Spotify? Pandora? They probably should be paying performance royalties – I have no idea if they do.

Supreme Court Declines Music Download Case | Threat Level |


Finally? Some Patent Relief?

Readers of this site will know that I’m not a fan of intellectual property “rights” in the first place. But to the extent that we insist on honoring IP, the bill passed today in the Senate (its already been approved by the House) seems like a welcome change to the norm:

Patent reform bill gets Senate approval | Politics and Law – CNET News.

Among the major changes in the legislation is turning the U.S. patent system into a first-to-file patent system as opposed to a first-to-invent system. The U.S. Patent and Trademark Office’s current use of the first-to-invent system awards a patent based on the conception of the invention, not necessarily when it’s filed. The first-to-file system, as the name suggests, awards a patent to the first person who files for it.

The trick with current copyright law is that anything invented anywhere is considered an Intellectual Property in legal terms. This means that, even if you patented an invention today, if someone says they have the same invention and created it earlier, their IP trumps your IP. This is largely what ties copyright courts in knots.

The down side of this is that it *does*create a potential extra burden for small businesses. Instead of being able to claim an IP simply by having a working invention or schematic, businesses will need to file with the patent office in order for their IP to be legally-binding.

On balance, however, it is difficult to see how any inventor could possibly *not* register their patent with the US Patent Office if they’re serious about their inventions. In the meanwhile, I guess its best to keep your invention under wraps till its go time?


Imaginary Property: Only One Kid Can Hold the Star Wars Figure

“Possession,” she sneered, “is nine-tenths of the law!”

She was a mother, though like many in this neighborhood I spent some of my childhood inhabiting, June Cleaver would hardly have recognized her as such. There she stood at the doorstep of her apartment hovel, round and sagging like an overripe, watery grape in her sandals and unsettlingly-revealing house moo-moo. Her Coke bottle glasses slid down her face in the summer humidity. Her hair was a snarled concoction of stringy brown and grey hair, uneven and matted with perspiration. She closed the door on my confused and frustrated face with a huff, “Go on!”

Never fear, gentle readers: I eventually got my Star Wars figure back because, while possession may indeed be nine-tenths of the law as the phrase goes, payback is 100% a bitch. As the phrase goes. But as unpleasant as my first introduction to the rigors of property rights may have been, I bring it up to illustrate an important point: an object can only occupy a single location at a single time, therefore only one person can possess a Star Wars figure. If someone has stolen your property, the thing to do is prove it was yours in the first place, because without that proof, the rest is folly.

But what if you could possess an object while someone else simultaneously held it? If neither copy of the object was degraded in any way – if the monetary and emotional value of said object was in no way diminished by copying – could that fairly be called a sale or theft or.. really, anything other than sharing in its purest form?

That’s the case with information. Especially in our digital age, information can be copied and disseminated across the entire globe in seconds, either literal copies in the case of MP3s or PDF documents, or in the sort of Bush Telegraph mode of people tweeting and commenting and talking among one another. And when knowledge is transferred from one person to another, neither party is hurt and neither party loses anything.

Readers of my Twitter feed have long seen me commenting through gritted teeth about “Imaginary Property,” which is a popular turn of the phrase “Intellectual Property” in some quarters of the Internet. But I’ve never really gotten around to laying out my basic problem with the concept. Here it is in a nutshell: if “possession is nine-tenths of the law,” how does copyright law get enforced with a type of declared property that is not a physical object? One that is simply an easily-copied idea?

The answer is: badly, haphazardly, and with the extreme bias that comes from monied interests hiring expensive lawyers. When James Madison originally penned the Constitutional clauses that govern our modern system of copyright, the primary concern was not the exclusion of information from the public sphere so much as the protection of printed books from literal copying and reselling without the original author’s credit. And in that slow economy, books were the primary vector of human knowledge.

Fast forward to today and the precepts of Intellectual Property are being stretched to their uttermost, with companies like Rochester’s own Kodak hanging their hats not on their own innovations but rather on esoteric copyright lawsuits against competing companies. Microsoft and Google compete for users in the world of wireless handsets, but rather than compete on the basis of the attractive features and usability of each operating system, they instead find themselves embroiled in legal proxy wars over ideas.

Not concrete products, just the idea of a concept that someone copyrighted. Was the idea stolen from one to another? Or did the two ideas simply spring up separately as solutions to the same problems? The answers to these questions would be impossible in many cases to answer objectively. The objective facts of the case are irrelevant, anyway, because it is the ruling of a judge which will determine who gets the millions of dollars in reward. And the real pay-off is one less competing product to contend with.

Thus the poles have flipped. The copyright law that once encouraged content creators to sell their works in the public square now stands between the marketplace and the products that it might have sold. All of this even while the very concept of information as a privately-held, singular object is rapidly vanishing in the flicker of a fiber-optic signal. As it should, because it was always farce.

This is one good reason I support Open Source software. It begins with the premise that knowledge will necessarily be shared, and so avoids what are ultimately unenforceable rules of copyright protection. And those of us who work with Open Source software do not fear for our jobs, simple because we work with free software. That is because, while information is freely available anywhere online, that some people will choose to learn my trade and most will not is more than enough to get paid for our time and efforts. Knowledge is free, but time is finite.

Imagine if, rather than a Star Wars toy, it had been an Open Source project that had been “taken” from me those many years ago. I would still have had “possession” of my software and wouldn’t have been required to confront a sweaty-faced, over-worked mom in a low-rent apartment building. Better yet, I wouldn’t have had to tie up my own time and lots of taxpayer dollars to have a sweaty-faced judge bloviate about Imaginary Property.

I kind of like that idea, don’t you?


Patent Fights Are About Hearts and Minds

As much as I talk about Imaginary Property on the blog and on Twitter, I don’t often get a chance to really lay out the problem with Intellectual Property and copyright quite as nicely as this article does. Discussing the latest round of M$ / Google / Oracle / Samsung arguments over patents, the author gets into the really important bit for everybody else:

Google vs Microsoft Isn’t Just A Battle of Products, But A Battle of Ideas | Epicenter |

Don’t underestimate the reach of these caricatures. This spring, I was playing Angry Birds with a seven-year-old who patiently explained to me why he liked Apple more than Verizon, because Verizon’s Droid phones just stole all its ideas from Apple’s iPhone. (I still haven’t told him that I have a Verizon iPhone now.)

My young friend may have been mixed up on the details, but he was lucid, he was deliberate, and most importantly, he was absolutely convinced. That’s what Google’s fighting here, in public — and that’s why Microsoft and others will be fighting back.

The question of why copyrighting does or does not hurt innovation is a topic which I have yet to address on the blog. I’m thinking I should start doing better with that.

Media Technology

The HuffPo/Tasini Suit: It Pays to Have a T&C

Say what you will about HuffPo or its blogging system, it pays to have a Terms and Conditions policy whenever you’re blogging or publishing online. The suit more or less proves that point pretty clearly.

Because Tasini’s case would have more than a little merit to it in lieu of HuffPo’s T&C: simply offering “exposure” as compensation for writing when the company itself if making huge profits is like saying I should work for Kodak for free because it looks good on my resume. That might wash for a college intern, but not for adults.

Still, Tasini agreed to blog for HuffPo and they have a policy that states that there will be no monetary compensation. Having such language in your site’s policy is by no means the end of the road, but it certainly makes the case much more winnable for the defendant.

For the rest of us, careful consideration of just where any random visitor can leave their own thoughts or content – and careful language aimed at mitigating the potential disasters they can inflict – is something no self-publisher can be without. I’m actually surprised that there isn’t more support for such language. That would be an excellent money-making scheme for some enterprising young lawyer. Any takers?

HuffPo Tells Judge: Tasini Blogged For Fame, Not Cash—Throw Out His Lawsuit | paidContent.


Is Google Android in Copyright Trouble?

Copyright law is complicated. Open Source copyright law is, ironically enough, even more complicated. So, its not necessarily the first thing most people really want to read about, even if the consequences of those copyright laws are more important to the world we live in today than at any time in the past.

Meanwhile, there seems to be a general format to news articles which makes understanding issues like this more complex. Journalists generally tend to start at the end of the story for the benefit of the high-tech audience – tell people who already follow the story exactly what new thing has prompted the article – then follow that up with a history lesson and end with alternate viewpoints that argue against the primary view of the article. That makes something like the current story on Google very hard to read, even for those like myself who consider themselves familiar with copyright law (though not a lawyer):

Google’s ‘clean’ Linux headers: Are they really that dirty? • The Register.

So, what is the deal? Well, let’s break it down:

Open Source

Linux is Open Source software, which means its not just free to use but also free to distribute entirely new versions of. You can modify the software, repackage and release as your own stuff.

But there’s a catch: in the case of the base of Linux, the software is released under a license which enforces a rule stating that not only is the software free, but any derivative distributions must also be free (copyleft). You can’t make money off the core Linux distribution, nor can you make money off modifying it and repackaging it.

Many versions (distros) of Linux exist that do make money, notably Red Hat. So, what’s the deal? Those software distros use a modified “header,” which is sort of like the beginning of the program. Those headers introduce some basic information about how the system behaves, setup environment variables and generally inform the user how the software is to be interacted with. As you might imagine, this modified version of the header is also free for download.

Google Android

What has Google done to cause the ruckus? Well, Google’s mobile operating system, Android, is based on Linux. And instead of using a prepackaged, licensed version of the headers, they’ve opted to create their own based on the core Linux headers. For the most part, as far as anyone can tell, all they’ve actually done was strip out comment language that said the distro was for free-use only.

And that’s the problem: to some people, this is the equivalent of tearing the “not for resale” sticker off a bottle of perfume at the store and then turning around and selling it. Whether or not this is actually true boils down to the kind of hair-splitting decisions upon which copyright law – and law itself – exists. In the opinion of those who believe Google has done nothing wrong, the headers for Linux only really define and establish a few relatively trivial variables and as such, do not necessarily constitute anything all that original. Therefore, they don’t necessarily constitute something copyrightable.

Why did Google chose to go this route? According to the above-linked article, it was because they wanted to keep the issue of GPL out of the user’s experience. I take that to mean they didn’t want users to have to question whether something was legally downloadable or not, just let one Google-defined license define copyright for all apps. Presumably, the GPL licensing on the profit-ready header distribution would have complicated that, at least in the eyes of Google’s executives.

Either way, Google felt comfortable enough – all things in the world of computers revolve around some level of copyright infringement risk – that they opted to create their own headers. It is upon this decision that Android’s fate rests, if its critics are to be believed. It is worth noting that Richard Stallman one of the leading voices in Free Software – and an openly hostile voice against for-profit software – agrees with Google’s assessment of the situation.

The Consequences

Well, with all that out of the way, what earthshakingly-important consequence will there be for all this? Of course, it all comes down to money.

If the Google Android OS is based on the core Linux distro using the copyleft license, then Google cannot charge for its use or development. That’s not a big deal, since Google isn’t really charging for it anyway: unlike Apple, its entirely free to use the Android API and create your own applications from it.

But what about those apps with the $1.99, $2.99 charges on them? Well, you can’t charge for them because they’re based on copyleft software. Whoops! With a single judge’s ruling, any company looking to make money off Android software is out of luck – and may even be subject to lawsuits themselves.

So, that’s what is at stake. I hope that helps some people understand what’s going on.


When is a Credit not a Credit?

A couple of well-known econo-bloggers are all upset about another blogger’s use of intellectual property, in the form of a linked-to but otherwise unattributed set of quotations:

It Has Nothing to Do with “Fair Use”: It Is About Giving Credit Where Credit Is Due – Brad DeLong’s Grasping Reality with All Ten Tentacles.

Fair Use, intellectual property and other copyright and courtesy issues come up for bloggers on a fairly routine basis for good reason: it is in the nature of the Internet to share information freely and widely, but it is not in the nature of humans to do so unattributed.

For myself, I have to say that a link to an article serves perfectly well as an inline bibliography. Consider yourself notified. What could be more direct a means of attribution than to give your readers the opportunity to read the entire text of your selected quotation in context?

The trouble in this case is that the link in question is a lot less-clearly a form of attribution. I prefer to only link vague phrases to additional resources, not the source of a quote, but that’s hardly a strict rule because, hey, I’m an irresponsible kind of blogger, sometimes.

Overall, I think its much ado about nothing. But then, doesn’t that perfectly describe blogging in the first place?


Warning to Bloggers:

National news media seems to forget who their biggest audience is. Decadence is exponential, it seems.

So just a reminder to be on your toes. This issue of quoting original sources (called a bibliography when I was in school, and a means to avoid copyright infringement) comes back every so often. Now with a down economy and newspapers becoming dinosaurs sinking in the tar, they’re kind of dangerous animals.


Copyrights, The Record Industry and YouTube

Today’s bug squashing day here at DFE, so I’m not updating the site much. But then, I haven’t been updating the site too much, anyway.

But I saw this video, sent by friend of the site JF, which got me to thinking:

The message is fine and certainly amusing. But it’s not that which got me thinking, it was the music. This video will probably not outlast the week, since YouTube uses software that listens to the audio output of a video to discover potential violations of copyright, which this video technically does. The author is probably not making any money off the video, but YouTube is, so the use of Amy Winehouse’s material without paying her – and the record company – is illegal.

But there is no vehicle for us small time bloggers to even pay a record company for the rights in the first place. That means that a law which is entirely reasonable on it’s face is preventing the kind of free flow of information that the web is meant to produce. At least in this particular facet of creativity. And at the same time, an entirely new type of revenue stream is being blocked from the record companies. But I don’t think it needs to be this way.

Now, if a local radio station wants to play Winehouse’s music, they pay what is known in the industry as a performance royalty. Basically, for every play of copyrighted music on a commercial radio station, television station or any other commercial enterprise, the performer and the company make a few pennies. That doesn’t sound like a lot, but for an international star, a few pennies per day per radio station adds up quickly. In fact, for reasons I won’t get into, performance royalties tend to be the only money most rock stars ever actually make.

So why not put the YouTube commercial service to good use? You’ve seen the advertisements that come up on the bottom third of the screen when watching a YouTube video? What is preventing YouTube from selling those blocks off as performance royalties? If I want to use Saved By Zero in a YouTube video, I look it up in a database and apply to use it. YouTube looks up my average video views and determines whether a sufficient number of commercial plays will happen in a sufficient amount of time. If so, I’m cleared to use it.

Of course, more than one ad could be used in a given video, depending on length. There’s lots of other factors, but there’s lots of smart folks at YouTube and Google who could figure it out if they wanted to.

And of course, the record companies have to consent, which is unlikely. I’m not expecting my plan to be put into action in any event. I’m simply pointing out that there is an entirely reasonable business model for making content-rich, copyright-safe videos possible on the Internet if only the record companies could get their heads out of their asses and start living in the 21st century.