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BBC Upset That Fans Are Knitting Dr. Who Characters - While many people are familiar with copyright issues concerning things like music, movies and software online, there's another community that also has been quite active: the knitting community. For a few years now there's been an ongoing battle between hobbyist knitters who have uploaded patterns that others feel are infringing on their copyrights. Now it appears that issue is touching on the tech/sci-fi community as well. Boing Boing points us to the news that a fan of the famed BBC show Dr. Who had created some knitting patterns of his own that would enable anyone to knit various characters from the show. This isn't a case where he was uploading someone else's patterns -- but he had created his own. The BBC, however, flipped out and told him to remove all such knitting patterns as they infringed on the BBC's copyrights and trademarks. This seems like yet another case of overly aggressive enforcement of intellectual property rights because someone can, not because it's a good idea.
It's nearly impossible to see how a fan getting people to knit versions of Dr. Who characters somehow diminishes the rights of the BBC. All it's doing is enabling fans (who are also into knitting) to express their fandom. If anything, the BBC should be encouraging this kind of fan support, rather than trying to stifle it and shut it down. It's stunning that after all these years, people still don't realize that helping fans express their feelings towards something is a good thing, rather than infringement.
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Blogging vs. Journalism Question A Key Point In Compelling The Troll Tracker To Testify - While it looks like the attempt to get Rick Frenkel, better known as the "Patent Troll Tracker" into court on a separate patent-related dispute has gone nowhere, there's an interesting side dispute as part of this that touches on the age-old debate concerning the border of blogging and journalism. Frenkel told the court that since the Troll Tracker blog was a side project, not an effort of Cisco, and since he was, effectively, a journalist in writing it, he could not be compelled to testify since it "would result in a serious detriment to Frenkel's future ability to gather and disseminate news."
However, Frenkel's nemesis, patent attorney Ray Niro responded by scoffing at these claims, and ticking off
the reasons why Frenkel should not be considered a journalist. Unfortunately, in doing so, Niro displays a rather profound ignorance concerning what it means to be a journalist (one would hope that his work with patent hoarders is not so sloppy). In the link above, Joe Mullin does a good job picking apart Niro's points, but let's take a closer look. First, Niro says Frenkel is not a journalist because he's unqualified:
"Frenkel has no degree in journalism; no professional training as a reporter; and has never been employed as a reporter or journalist."
If that's a requirement to be a journalist these days, then an awful lot of folks doing serious journalism work wouldn't be considered journalists either. There are no professional requirements to be a journalist. Second, Niro claims that Frenkel wasn't very nice in his posts, highlighting the Troll Tracker's rather amusing "haiku" contests, that tended to make fun of patent hoarders and (sometimes) Niro. Of course, there's nothing in engaging with your readers with amusing haiku contests that makes you any less of a journalist. Third, Niro says that since Cisco was Frenkel's employer, he's clearly not a journalist but something of a corporate mouthpiece. Of course, there's little evidence to suggest that Frenkel was doing anything on behalf of Cisco, but more importantly, (as Mullin points out) biased reporting doesn't disqualify you from being a journalist. If it did, how many "journalists" would still be around? And fourth, Niro claims that Frenkel was guilty of various journalistic ethics violations, such as writing anonymously (someone better alert the Economist) and not revealing his sources (always knew that Woodward and Bernstein weren't real journalists).
The simple fact is that you don't need a degree or a certificate to be a journalist these days. You just need to report the news -- and no one can deny that Frenkel did that. In fact, he was much more of a journalist than many "official" journalists these days in that he reported on news that wasn't getting covered anywhere else and did some pretty hefty investigative work on some to try to work out the details behind some of the patent hoarding company shell games. In fact, since he took down his site, the type of news he reported has been sadly missing from the discussions on patent law and patent reform. On that note, it's probably also worth pointing out that Frenkel said in his own filing on the case that he's planning to return to blogging at some point in the future.
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China Shows Again That Stronger IP Protection Comes After There's Content To Protect, Not Before - Copyright and patent law is supposed to act as incentives for the creation of new content or inventions. Yet, as we've pointed out recently, there's little economic evidence that it does so. Instead, the evidence suggests that stronger intellectual property laws seem to come after the fact. In other words, when there is little IP protection, there is often quite a bit of creation and invention -- and then those that did that creation and invention decide that they want to protect it retrospectively. That's not the purpose of IP law, but it's what seems to happen. And, look no further than China to see it happening again. China, of course, is notorious as a haven for intellectual property infringement, which (not surprisingly) has resulted in business model innovation. However, now that China is hosting the Olympics, it's suddenly worried about making sure the video of the games will not be copied in an unauthorized manner (found via Against Monopoly). Note the obvious irony. You can walk around malls in parts of China and buy any kind of unauthorized software, music and movies for next to nothing... but when it comes to China's own content, suddenly copyright is a big deal. And, of course, it wasn't copyright that acted as the incentive for China to host and show the Olympics -- but now the country is using it to protect the content. Copyright is being used for protectionism, not as an incentive.
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How Do You Legislate Fewer Attacks On Homeland Security's Network? - While it is a bit troubling that the Department of Homeland Security has had some computer security problems recently, it's difficult to see exactly how that's solved by legislation. But, of course, to politicians with a legislative hammer, every little problem looks like a nail. Thus, we've got politicians proposing cybersecurity legislation that would require Homeland Security to decrease the number of successful cybersecurity attacks against its network. While that's certainly an admirable goal, it's not as if DHS was purposely letting the attacks go through before, and will suddenly shape up just because of this new law.
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Skype Concedes In GPL Dispute - Tom wrote about the Skype/GPL case yesterday, and it's worth noting (as many in the comments did) that partway through the hearing, Skype gave in and agreed to drop the appeal and abide by the lower court ruling. That's a good thing. However, from the comments on Tom's post, it appears that many seemed to have misunderstood what he wrote, believing he was (a) supporting Skype or (b) disparaging GPL. It appears to be neither. He pretty clearly states that it's a "desperation" play by Skype, and so it's not at all surprising that Skype gave in after the court indicated that Skype's arguments were not convincing. Tom also does not appear to be disparaging the GPL -- he notes how it helped encourage much more openness in software development.
His actual point, which got less attention, was whether the power of the GPL specifically is waning as other licenses gain prominence -- and, specifically, whether it would be so horrible if the GPL somehow went away. He's not suggesting that's a likely or ideal scenario -- just questioning what would happen. And, the point he makes is that while the GPL paved a very important path, we're seeing other options now appearing, and that's a good thing for open source. Developers now have a much bigger choice among licenses they can choose to adopt, and that competition can lead to interesting innovations. It's not an anti-GPL post -- but recognition that the hopes and dreams of open source software development are no longer tied to the success or failure of the GPL. And that's a good thing for both the GPL and open source.
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If Copyright Is About Incentive, Should It Allow Total Control Over The Work? - William Patry points us to an interesting draft of an article by Prof. Shyamkrishna Balganesh (of University of Chicago Law School) for the Harvard Law Review concerning how the courts rarely take into account the real purpose of copyrights in deciding what copyrights allow people to do. The basic premise is that copyright is designed solely to be an incentive to get people to create new works -- and, as such, some of the powers that the courts and Congress have added to copyright seem to go well beyond that core purpose. Specifically, Balganesh suggests that copyright shouldn't prevent others from using the content in ways that the original author never foresaw, as those uses clearly should not have influenced the original incentive to create, since they were never even thought about. While Patry gives some compelling reasons why Balganesh's current argument is a bit flawed, it does bring up a variety of interesting and important questions concerning what copyright really should be doing.
Most specifically, this argument is going to become more and more important as content creation increasingly moves away from a "broadcast" model to a many-to-many "communications" model. In such a world, things like fair use, derivative works and whether someone should "own" all downstream uses become much more important:
None of copyright's current doctrinal devices enable courts to circumscribe a creator's entitlement by reference to the incentive structure that the institution is premised on. As a direct consequence, creators (and their assignees) are often thought to be 'rightfully entitled' to any revenue stream associated with their creation, whether or not it owes its existence solely to the creator and regardless of it having been developed well after the creation of the work.... Individuals will (and can) not factor the unforeseeable consequences of their actions into their ex ante reasons for acting. Consequently, limiting copyright's grant of exclusivity to uses of the creative work that were foreseeable to a creator at the time of creation is likely to better align creators' creative decision-making with their incentives.
In other words, just because your work is used in part by another to create something new and different, it often doesn't make sense to give the original creator control over that work -- especially if it has nothing to do with the original incentive to create. Somehow, I'd imagine that JK Rowling would disagree.
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Congress Follows States' Lead In Trying To Ban Stores From Selling Violent Video Games To Kids - At least 10 states have tried to ban the sale of violent video games to kids, and in each and every case, the laws have been found to be unconstitutional. Yet that doesn't stop state governments from trying... and apparently the politicians at the federal level (election year!) want in on the action too. They're proposing a bill that doesn't exactly ban the sale (which is probably how they hope to get around the Constitution questions) but which requires stores to ask for an ID as well as to post details about the ESRB ratings. This seems like yet another "protect the children" political move by politicians up for re-election. But, it's becoming increasingly clear that these types of laws aren't necessary, no matter what constitutional questions they may raise. Beyond the absolute lack of evidence concerning problems from kids playing violent video games, it appears that the industry has taken care of the problem by itself. Self-regulation by stores has resulted in a significant decrease in underage kids being able to buy mature video games. But don't let facts get in the way of those pushing for these types of laws. They're applauding the new bill, just as they demonstrate that they don't even understand what they're campaigning against.
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Patent Attorney Stephan Kinsella Presents On Why We Need To Rethink Intellectual Property - If you've got a spare 40 minutes to an hour, it's worth watching patent attorney Stephan Kinsella's presentation: Rethinking Intellectual Property Completely, as given in March. The video is embedded below, and it fits in nicely with my ongoing (yes, there's still plenty more) series of posts on intellectual property. It's pretty rare to see a patent attorney explain so lucidly the problems with patents (and copyrights):
He does a very nice job ripping apart the "property rights" arguments that some, especially some libertarians, use in favor of patents, explaining why that doesn't make sense. It's an excellent presentation, and well worth watching.
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Bank of America's We-Don't-Need-No-Stinking-America Patent Application - theodp writes "Americans are a real problem, explains Bank of America in a just-disclosed patent application for County Assessment. 'A typical American employee,' complains BofA, 'demands a high salary, good benefits, a good work environment, vacation time, and other job-related perks.' Such problems are solved with BofA's patent-pending methodology, which eliminates 'demanding work force' problems by identifying another country for a corporation to relocate its work force to."
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The Happy Birthday Copyright Saga: Generating Millions On A Copyright That May Not Exist - In the past we've joked about the (supposed) fact that the song "Happy Birthday" remains under copyright, due to a copyright originally held by sisters Mildred and Patti Hill, the claimed original authors of the song. However, William Patry points us to a fascinatingly detailed research paper into questions surrounding the copyright. What comes out of it is pretty strong evidence that the copyright is not valid -- but it's never gotten far enough in court to have a decision rendered. Plus, it sounds like many aspects of the "history" of the song really appear to be close to a myth.
The sisters in question may have written the melody, but they almost definitely did not write the lyrics (their original copyright was on a different set of lyrics, "Good Morning to All"). As for the melody, there's plenty of evidence to suggest that it was actually taken from a series of extremely similar songs. So, there's a good chance they wrote neither the melody nor the lyrics. Also, there are numerous questions concerning whether or not the copyright holders correctly followed the various rules required of copyright holders at the time, suggesting that even if there were a legal copyright at some point, it's long since expired. And, of course, there's even some evidence to suggest less-than-legal tactics involved with transferring around some of the interest in the song. Amazingly, however, the legitimacy of the copyright has never been determined in court, and it now generates over $2 million per year. Over 1% of the money that ASCAP distributes to songwriters is for this one song, even though it may not be legitimate. Somehow, I doubt this is what the Founding Fathers intended when they wrote the Constitution.
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Who Says Patent Lawsuits Aren't Sexy? - Joe Mullin has the details of a rather bizarre patent dispute involving a patent covering the user interface of force feedback technology used in "cybersex" or "teledildonics." You may have heard of the company Immersion, which, for years, has claimed to hold pretty much all patents on "haptic" technology, which most people are familiar with in the form of "force feedback" game controllers for console games. Some feel that Immersion's patents are overly broad, but that's beside the point on this one. Apparently, at some point, Immersion realized that there was going to be (or already was) a decent sized market in using such haptic technology for virtual sex. Yet, at the same time, the company felt uncomfortable about filing infringement lawsuits on such uses, recognizing that it could lead to negative publicity. So, instead, it licensed out the patents and the right to sue for infringement to a company called Internet Services, LLC (ISLLC), which (from the description in Mullin's article) sounds like a shell company just for this purpose.
However, when Immersion won its patent infringement lawsuit against Sony for its use of force feedback controllers on Sony gaming consoles, ISLLC apparently felt that Immersion owed it some of the proceeds. It hired famed patent attorney (and patent system expert) Mark Lemley to represent it. However, for somewhat unclear reasons, Lemley now appears to want nothing whatsoever to do with ISLLC and has asked to withdraw from the case. ISLLC has now hired other lawyers just to force Lemley to still represent it in its lawsuit against Immersion. It's like a patent battle soap opera -- complete with sex toys. See, just because stories are about patents, doesn't mean that they're not sexy.
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House Passes Pro IP Overwhelmingly - Last week we questioned why Congress seemed to think that the White House should be playing the role of copyright cop. Yet, apparently, the House of Representatives didn't think it was a question worth asking, as it has passed the PRO IP bill by an overwhelming vote, 410 to 10. It seems like our Congressional Representatives felt that, once they got rid of one bad portion of the bill, that the rest of it must be perfectly fine. This bill has a ton of problems, expanding copyright law and the executive branch's authority in ways that are pretty clearly unnecessary. It is, in effect, a bill to prop up the obsolete business model of one particular industry, so it's rather disappointing that our Representatives have rushed through to approve it with little discussion or debate over whether it's even necessary. Either way, it seems unlikely to get much further, as the Justice Department has already come out against the bill, one would hope that even if the Senate approves a version of the bill, the President would veto it.
In the meantime, though, given just how much damage arbitrary expansions of copyright law have done, you would think that Congress would at least want to spend some time exploring the issues before rushing through new laws. Tragically, it seems that entertainment industry lobbyists still have politicians convinced that stronger copyright is naturally "good."
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Does The GPL Still Matter? - The GNU General Public License heads to court again today, as Skype attempts to defend its distribution of Linux-enabled SMC hardware handsets that appear to be in violation of the operating system's open source license. It's easy to guess why Skype is fighting the suit, which was brought by GPL activists: the company relies on a proprietary protocol, and releasing the code could give competitors an advantage. You can't blame them for trying. Although in the past few years the GPL has made important strides in establishing its legal enforceability, it's still conceivable that a court could find something wrong with its unusual, viral nature.
Few think that this will be the court case that makes or breaks the GPL. Skype's already lost early rounds of this fight, and the claims it's now making seem so broad as to imply desperation. Besides, the case is being tried in the German legal system, which to date has proven friendly to the GPL.
But even if the license was invalidated, either in this case or another, there's an argument to be made that the GPL has already served its purpose. Its impact on the world of open source software is undeniable: by ensuring that an open project would remain open, the license encouraged programmers to contribute to projects without fear of their work being coopted by commercial interests. And by making it difficult, if not impossible, for a project derived from a GPLed project to go closed-source, it encouraged many programmers to license their efforts under open terms when they otherwise might not have.
But today, with open source firmly established as a cultural and commercial force, the GPL's relevance may be waning. The transition to the third version of the license left many in the open source community upset and intent on sticking with its earlier incarnations. And an increasing number of very high profile projects, like Mozilla, Apache and Open Office, have seen fit to create their own licenses or employ the less restrictive LGPL. The raw numbers bear out the idea of a slight decline in the GPL's prominence, too: Wikipedia lists the percentage of GPLed projects on Sourceforge.net and Freshmeat.net, two large open source software repositories, as 68% and 65%, respectively, as of November '03 and January '06. Today, the most recently available numbers show that Sourceforge's share has fallen to 65%, and Freshmeat's share has fallen to to 62%.
This is, of course, a small decline, and the GPL remains the world's most popular open source license by a considerable margin. But it does seem as though there may be a slowly decreasing appetite for the license's militant approach to copyleft ideals. I certainly don't wish Skype well in its probably-quixotic tilt at the GPL, but if they were to somehow get lucky at least they'd be doing so at a point in the open source movement's history when the GPL is decreasingly essential.
Tom Lee is an expert at the Techdirt Insight Community. To get insight and analysis from Tom Lee and other experts on challenges your company faces, click here.
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Fewer Than 5,000 Broadband Over Powerlines Subscribers - Following the story earlier in the week about the death of broadband over powerlines, Broadband Reports points out that even by the FCC's "stunningly meaningless" broadband stats (that tend to inflate access claims), BPL only has 4,776 subscribers. This for the technology that it declared as "the great broadband hope" five years ago. So, once more, with feeling: broadband over powerlines is dead. It's not a serious option.
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LA Includes Piracy With Drugs, Gangs, Prostitution And Gambling As 'Detrimental To Public Health & Safety' - Various laws have allowed local governments to declare specific property "detrimental to public health & safety" when that property becomes overrun with drugs, gangs, prostitution or gambling. However, the entertainment industry's hometown gov't in Los Angeles has now expanded the list to include music and movie piracy as well. Whatever you think of unauthorized copying of content, it's difficult to see how you can, with a straight face, claim that it is the equivalent of property being overrun with drugs, gangs prostitution or gambling.
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RIAA, MPAA In Denial About The Death Of DRM - As a bunch of you are submitting, at a panel discussion down in LA, an RIAA representative claimed not only was DRM not dead, but that it was making a comeback. However, the statements show a fundamental misunderstanding of what's happening in the marketplace. RIAA technology guy David Hughes made this statement:
"I made a list of the 22 ways to sell music, and 20 of them still require DRM."
Well, David, I just made a list of 22 ways to sell transportation mechanisms, and 20 of them still require a buggy whip -- but it doesn't mean anyone will buy them. Then, even worse was the statement from the MPAA's Fritz Attaway:
"We need DRM to show our customers the limits of the license they have entered into with us."
Well, there's your problem Fritz. The second you focus on how to limit your customers, you've lost them. No one wants to be limited these days. They want to be able to do what they want and they will reward those who allow them to do so. Treating your customers as people to be limited (i.e., people who you offer less value to) pretty much guarantees that they'll go elsewhere.
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TorrentSpy, Though Out Of Business, To Appeal Massive Fine - Following yesterday's $110 million fine against TorrentSpy, ostensibly for copyright infringement, but really for destruction of evidence, we figured that the whole thing would drop, as the company has already shut down. But... not so fast. The company has decided to appeal, claiming that the result was a Hollywood PR stunt. Given the way the MPAA tried to claim that this ruling acted as a warning to other torrent trackers, he has a point. Still, given the destruction of evidence in this case, it may not be the model case on these issues. There are plenty of other cases, such as those against The Pirate Bay (in Sweden) and isoHunt that will be more important long term.
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IP Lawyer Explains Why Uploading Files May Not Be Distribution For Copyright - While there's been a big ongoing discussion in various courtrooms concerning the question of whether or not making unauthorized files available for download is copyright infringement, there's another interpretation of copyright law that many copyright scholars agree with -- but which the RIAA and the MPAA would certainly prefer you not hear. I'm at the San Francisco MusicTech Summit and on an early (and not particularly well attended) session in the morning, intellectual property lawyer Andrew Bridges made a fascinating argument: that if you follow the actual text of existing US copyright law, uploading unauthorized content does not infringe the distribution rights of copyright. This goes even beyond the whole "making available" question, by saying even the uploading doesn't violate the law directly.
The reasoning requires a very literal reading of the law. Section 106 of copyright law lists out the specific "exclusive rights" granted under copyright law to copyright holders, including things like reproduction rights, performance rights and distribution rights. The text of the distribution right is: "to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;" From this reading, one might conclude that uploading a file is a "copy." But if you go to Section 101, which holds the definitions for the law, it states (quite clearly):
"Copies" are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term "copies" includes the material object, other than a phonorecord, in which the work is first fixed.
Note the emphasis on material objects. As such, you can read the law, as written, to conclude that passing around the song itself, which is not a material object, is not actually an infringement of the distribution right under the current law.
Now, before people get too excited about this, in a later panel this question was raised again, to the EFF's Fred von Lohmann. He agreed that this appeared to be a literal reading of copyright law -- and that just about every copyright scholar he's spoken to agrees -- but that every time he's argued it in court, the court has disagreed or ignored it. He says he'll continue to make the argument, but that it has not been effective. Also, as Bridges noted in making the original statement, just because the distribution right isn't infringed, doesn't mean there aren't other issues. For example, whoever downloaded the file downloaded it to a material object (the hard drive) probably violates the first exclusive right, the "reproduction" right. And, thus, an argument could be made that the person who uploaded the file contributed to the violation of the reproduction right. However, based on this argument, it does seem clear that uploading a file is not, technically, a violation of the distribution right under copyright law -- not that the courts recognize that. Of course, if the courts ever did recognize this fact, you could bet that within a matter of days, a Congressional Representative would introduce an amendment to copyright law to change the definition of "copy" to include content not tied to a material good.
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Up-and-Coming Label Illustrates How to Sell Infinite Goods in the Internet Age - The New York Times has an interesting profile of Fueled by Ramen, a record label that has managed to thrive at a time a lot of other labels are struggling. The label seems to be practicing several of the principles we've talked about here on Techdirt. First, they seem to understand that the secret to success for a band is to build up a core of serious fans. Fueled by Ramen encourages its bands to engage with their fans online, doing frequent blog posts and studio updates. And the label has apparently mastered the type of viral marketing that builds excitement among the most devoted fans. Second, it has kept expenses low. It produced Panic at the Disco's debut album for just $18,000, allowing it to make its money back even if the album doesn't sell hundreds of thousands of copies. Finally, it seems to understand that the real money is in using the music as a way to market the band, and to use the band's popularity to sell scarce goods related to the band. For example, the label's bands tour aggressively, and the label has "a merchandise company that sells band T-shirts at stores like Hot Topic, as well as on its Web site." As the costs of music distribution continue to drop, it will be increasingly difficult to turn a profit on music itself. But people who recognize that the music is a way to build the band's popularity in order to sell other stuff, for which marginal cost isn't dropping toward zero, will do just fine. Fueled by Ramen is still largely in the CD-selling business, so they're not all the way there yet, but their success at a time when more traditional labels are floundering suggests that they're moving in the right direction.
Timothy Lee is an expert at the Techdirt Insight Community. To get insight and analysis from Timothy Lee and other experts on challenges your company faces, click here.
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The Non-Controversy: No, Wikipedia Authors Should Not Get Paid - Let's say that I sold you a piece of land, and you then built a nice house on that land, and then you sold the property for a lot more money. Would anyone think that it was reasonable for me to then show up and demand a piece of the profits? Of course not. Yet when that scenario is tweaked just slightly into the digital realm and using $0 as the original price, suddenly people start getting things backwards. A few months back, for example, there was the situation with Billy Bragg complaining about the fact that musicians who chose to put their music on Bebo didn't get any of the AOL buyout money. But that was perfectly reasonable, because the musicians made a fair trade initially: they gave their music, they got publicity. Asking for money after the fact is no different then me trying to renegotiate my land sale after you made the land more valuable and resold it.
Now we're seeing yet another such case. Ethan Bauley writes in to point to an article suggesting that somehow Wikipedia authors are being ripped off because Bertelsmann is going to publish a paper version of Wikipedia for profit. But, again, it's the same thing. People who contribute to Wikipedia clearly felt that giving their labor away for free was a fair transaction. Bertelsmann is now trying to make Wikipedia valuable to a different audience by putting it into book form. They're taking on the risk of printing the book (building the house), and to have the various writers go back later and demand payment is equally as ridiculous. Luckily, it seems like most people recognize this -- and many comments on the ReadWriteWeb article point this out. It's just a few agitators, who apparently want to change the terms after the fact, who are having trouble getting this.
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