The Lawminatrix

The beleaguered music industry has precious few loyal allies left on whom it can rely to provide free PR for new artists via blogs and other new media outlets. Unfortunately, Google pulled the plug on several of the most popular music blogs last week after an automated infringement detection system flagged them as copyright criminals and the labels issued takedown notices under the DMCA. The problem is that many of these bloggers had permission to post the MP3s at issue, and/or had taken these files down already, leaving only a broken link. The bot couldn’t tell the difference.

So, here’s the thing. Copyright protects owners against the distribution of music without their permission. Of course, it would be preferable if they didn’t also come down on those to whom they have granted permission, even through an automated intermediary. By the by, not too many of these bloggers make a profit, so although their posting of music might be infringement, they’re not earning money off of it, and in some instances may have a case for “fair use” if they’re simply posting a small sample in order to comment on the artist, music style, etc. However, the music industry apparently has a short memory as far as the great service done them by these bloggers. It seems the record companies would rather net a large number of “pirates,” even though they inadvertently trap a number of law-abiding bloggers as well.

Those in the know have been monitoring with interest the buzz on proposed “three-strikes” policies that would enable ISPs to cut off Internet access to those accused of online copyright infringement three times. Notice I said “accused.” That is because the policies to date have included no proof requirement. Excuse me? How is it remotely productive to punish people without proof, some of whom will actually be innocent? In one instance, a woman with an unsecured wireless network in her home nearly lost her Internet access after kids at a nearby school used her network to download and torrent. Careless on her part, of course, but hardly the kind of culpable malfeasance that would justify pulling her plug (and killing her business — run out of a home office — that relied on Internet as well).

1) There’s no substitute for actually clicking a link to see if the allegedly infringing content is in fact online to be taken down in the first place.

2) Whether or not Internet access is a Constitutional right in the U.S., it’s an indispensable part of everyday life. Music industry execs would do well to remember that encouraging ISPs to kick people offline will not force consumers into the nearest Wal-Mart to purchase CDs, but will instead incite a riot.

3) Music bloggers are doing the industry a favor. Seriously. Think about it.

admin Copyright DMCA, infringement, music, three-strikes

In the aftermath of their convictions for copyright infringement, the “masterminds” behind Pirate Bay in Sweden want to draw the public’s attention to recent research indicating that those who engage in illegal P2P file sharing often go on to purchase the music legally.

Anyone detect an odor? I’d say it’s getting pretty ripe. People may sample a particular artist’s work before committing to purchasing large volumes, but once they’ve got a track, they’re not going to buy that particular track (obviously).

More importantly, whatever people may do after illegally downloading files does not bear on whether Pirate Bay is vicariously liable for copyright infringement by virtue of their business model. As others have pointed out, search engines direct users to all relevant content, legal or illegal, but Pirate Bay funneled them directly to the “juicy” stuff - copyrighted files available for download.

To look on the bright side, the Pirate Bay defendants will have a year in close proximity to people who are intimately familiar with the criminal mindset, so follow-up research should prove convenient.

admin Copyright convictions, infringement, music, Pirate Bay

Since when is reading aloud a copyright violation? Have the thousands of PSAs encouraging us to read to our children actually been solicitations to commit the crime of copyright infringement? Should we brace ourselves to see federal agents swarming the “Reading Rainbow” book van?

That must be the case, if we’re to believe publishers who claim that the Kindle 2’s text-to-speech feature infringes copyright owners’ exclusive right to create derivative works (audio books). 

Beg pardon? If my GPS’s “voice” is any indication, this thing won’t be any substitute for the audio book!

I can barely understand the thing when it tries to read street names, so I stick to “Turn Left” and “Turn Right.”There’s a reason people shell out cash to have celebrity voices give directions from their GPS. Shouldn’t that fact tip off publishers to the fact that celebrity voices will always sell audio books? I can’t see the Kindle 2 reducing sales of Thomas the Tank Engine on CD, guys, so let’s all take a step back to reassess!

Amazon says the text-to-speech feature is perfectly legal, but nonetheless folded like a rickety card table when copyright holders objected to the Kindle’s text-to-speech feature. Litigation is costly, after all, even when one is ultimately victorious, and tweaking the noses of publishers is unwise for a book vendor.

Still, Amazon isn’t exactly a little Mom and Pop bookstore, and I’d have hoped to see them stand up for their customers, who by all accounts want this feature.

For now, Amazon’s made the feature “opt-in,” which  means publishers will specify which books customers will be able to hear using the Kindle 2’s text-to-speech capability. 

Because it won’t be at all annoying for me to try and figure out which of my purchases I can listen to during my commute, and which will have to wait until I can devote my undivided attention to reading. From “Kindle” to “kindling,” I guess.

admin Copyright Amazon, infringement, Kindle, text-to-speech

Comic book writer Robert Cabell has filed a copyright infringement suit against Adam Sandler’s production company (Happy Madison Productions), Sony and Columbia Pictures. The allegation: that defendants based “Don’t Mess With The Zohan” on Cabell’s movie idea, which featured a gay Navy SEAL named “Jayms Blonde” who becomes a hairdresser and uses his tricked-out blow-dryer to go after evil corporate types. Cabell allegedly pitched the idea of a Jayms Blonde movie to Columbia Pictures in Fall 2007, although “Zohan” was already in production at that point.

A few points Cabell might take notice of:

1. “Don’t Mess With The Zohan” was hardly a cinematic masterpiece. Do you really want to say “Hey, that stinkbomb was MY idea!” Seriously, did Cabell even watch this movie?

2. Ian Fleming Estate take note: Cabell’s hijacking the goodwill built into your James Bond trademark. Cabell: “Sandler stole my stolen character!” James Bond actually is blonde these days, you know.

3. You can’t copyright an idea - only the expression of that idea. Anyone can make a movie about a gay (or apparently gay or straight) former special ops person who longs to become a butt-kicking, blow-drying, hair-dying hairdresser. They just can’t use your screenplay to do it. (See Funky Films, Inc. v. Time Warner Entertainment Co., 462 F.3d 1072 (9th Cir., 2006) (affirming trial court’s finding of no infringement when Time Warner developed “Six Feet Under,” a TV series that contained similar story elements to “The Funk Parlor,” a screenplay Funky Films had pitched).

So back off The Zohan: he just wants to make people “silky-smooth.” Ugh.

admin Copyright, Trademark Adam Sandler, infringement, James Bond, Zohan

The fervor over a fairly minor tweak to Facebook’s Terms of Service page had me concerned when I read headlines harkening back to the latest blog entry on The Consumerist: “We Can Do Anything We Want With Your Content…Forever!” After checking out the language itself, it did seem overbroad, but also par for the course when dealing with social networking sites. Essentially, Facebook doesn’t want the hassle of obtaining permission from the entire world to use screen shots from actual user pages in its advertising or in connection with media coverage, etc., and they’re casting the widest possible net to ensure they catch all theoretical uses that might require permission.

Practically speaking, I wonder how this broad a license could possibly work, given that there are situations in which users have permission to post someone else’s copyrighted material on their own Facebook page (Santa photos, for instance), but not the power to transfer that license to Facebook (or MySpace, or any other social networking site du jour). Most consumers don’t realize they’re warranting that they do have this transfer power, under the selfsame terms of service. This raised a red flag for me, particularly when read together with the indemnity clause: those copyright infringement damages can add up!

But then, that problem has always existed, so it isn’t exactly what you’d call “news.”

The change at issue here involved when the license ended: under the revised Terms of Service, the license would not expire if a user deleted his or her Facebook account. Lest we read into this an evil intent, imagine Facebook ran a print ad with tiny screen shots from a wide variety of user pages. If the license expired when users deleted their account, Facebook would have to a) police everyone’s account status and b) pull existing advertisements and replace content with current users’ work. Rinse and repeat, ad nauseam. To call this “cumbersome” would be a fairly massive understatement.

At any rate, the public outcry prompted a reassuring blog post from Facebook, then finally a rollback to the original terms, at least for the time being. Looks like we’ll all live to network another day.

Alarmists, however, have no need fear the loss of ammo against social networking sites: it turns out Facebooking may cause cancer! There’s a “cause” to add to your user profile.

admin Copyright facebook, infringement, social media, terms of service

Is anyone else tired of hearing about how Coldplay stole Viva la Vida from Satriani? Or Creaky Boards? Or even Cat Stevens? (Check out 3:17 on that Cat Stevens vid.)

As the allegations started to mount, I got curious enough to review the tracks online and see if they were, in fact, substantially similar. No dice, in my opinion, although I would expect Coldplay to settle out of court to avoid the risk of going to trial.

There are just so many notes, and only so many ways to arrange them. Do we really want to lock down every possible combination, even though the feel of the resulting composition is completely different? In the Internet era, “access” to most anything can be assumed, but doesn’t that effectively kill the “independent creation” defense?

True, Coldplay could (theoretically) have heard the Creaky Boards song or, more likely, the Satriani riff. Does that mean they did listen to it and copy it, consciously or subconsciously? Doubtful, given that the resemblance seems only superficial. Not to mention that the band has made efforts in the past to license material (from synth band Kraftwerk), which would indicate they’re law-abiding folk, at least in this regard.

Still, there’s plenty of money to go around, and I’m guessing some of it will go Satriani’s way, although we may never hear how much.

admin Copyright coldplay, infringement, music, satriani