Friday, December 30, 2011

Fair Use Fridays: DJ Earworm State of 2011 Mashup - Fair Use Doctrine

'nuff said. Wishing everyone a happy new year.
 Purchase Copyright Litigation Handbook 2011 by Raymond J. Dowd from West here  

Tuesday, December 27, 2011

Copyright is Not in the Machine: Book Review - William Patry’s How To Fix Copyright

How to Fix Copyright by William Patry
Oxford University Press 2011
262 pp.  $21.95 

Is copyright too long?  Too thick?  Too wide?  Bill Patry thinks so, and that should matter to you if you care about our economy, our democracy, and our future.  He also thinks that digital locks are not the answer to promoting creativity or to making copyright profitable to authors.   For those concerned with anticompetitive governmental regulation, this book is an eye-opener.  Patry argues that the author who supports strong copyright in the hopes of getting paid is shooting herself in the foot.  According to Patry, current copyright laws are not getting artists and authors paid and indeed, because they are too strong, are having a harmful effect on authors, artists and creativity itself, shifting monopolistic power to a few strong corporations.

                Like Columbia law professor-turned regulator Tim Wu, Patry fears what Wu calls (in his book of the same name reviewed here) the Master Switch, that is, a lockdown of cultural exchange on the internet that will transform  consumers into passive purchasers of pre-made culture funneling massive profits to a few media monoliths at society’s expense.   Like Prof. Lawrence Lessig (Copyright Law Does Not Make Sense here),  Patry is concerned and makes a case that copyright terms that are too strong and that interpretations of fair use that are too restrictive have had a chilling effect on the very creativity and innovations that have created practically the only new jobs in the 21st Century economy.   And like his last book, Moral Panics and the Copyright Wars reviewed here, How to Fix Copyright spends a good deal of time criticizing those who resist technological change and disruptive technologies.

                But How To Fix Copyright distinguishes itself from its predecessors by offering a blueprint for change.   Patry falls short of offering an actual legislative proposal (perhaps his proposal will be his next book), which is probably a wise thing.  He’s smart enough politically to know that if he spells out certain details, his proposals would be taken out of context by his ideological enemies.  So HowTo Fix Copyright focuses first on making the case that copyright is broken and that not only society at large is bearing the cost, but that the creative community, copyright’s intended beneficiaries, are suffering the most.  Patry’s focus on the economics makes a powerful case that should catch the ear of big business, since the cost of using copyrights is a tax-like burden on large and small businesses alike.  Patry makes a compelling case that where too much monopoly power is granted, the rest of the economy and society suffers.    Patry’s argument should appeal to the Occupy Wall Street movement (Wall Street is not far from Midtown) as much as it should to the tax-averse members of the U.S. Chamber of Commerce.

Patry calls for an open legislative process in which the economics of copyright can be studied.  Artists and authors are not making a living, and Patry’s view is that giving more legislative gifts to middlemen who have refused to compete and adapt to the reality of business competition will have a toxic and destructive effect on the economy and our culture.   Patry wants Congress to open hearings at and dig out the truth in a serious overhaul of copyright law.   The last real overhaul of the U.S. copyright law was in 1976 and that was based on proposals from the 1950’s.   Patry makes the argument that not only are our laws based on nineteenth century industries, but that we’ve lost a lot of the legislative and economic wisdom built into earlier laws.   Rather than dictating quick fixes, How to Fix Copyright emphasizes the importance of transparent legislative  process in getting “buy-in” to the process of repairing copyright.  During that process, Patry suggests that a “one size fits all” approach to such questions as copyright terms cannot be sustained and that Congress engage in a consultative legislative process to determine what length of copyright works best, and for which works.

HowTo Fix Copyright doesn’t duck tough questions.   Patry recommends that authors of copyrights are going to have to trade the concept of “control” for the concept of “getting paid”.   Patry takes collecting societies to task on this issue, particularly in Europe.  Throughout the book, Patry moves effortlessly from U.S. to European examples giving the book a valuable depth and understanding of the international copyright marketplace.   One of Patry’s conclusions is that the Berne Convention must be reworked to permit formalities, that is the requirement of registration for copyrighted works as a condition of protection.  With U.S. adoption of Berne in 1989, a lot of materials that no one intended to be covered by copyright have fallen under the copyright laws.

Copyright law is no longer an arcane field affecting few of us, in the last decade it has become more deeply embedded in our lives than many other areas of law.  Given the centrality of copyright law to our future, if you are going to read one business book this year, this should be it.  It is published by Oxford University Press right as Congress is trying to railroad through the Protect-IP Act and the Stop Online Piracy Act, both of which are frightening attempts to lock down American culture and to convert the internet to a Chinese-style authoritarian system where DNS masking will be used to censor websites and ISPs will be transformed into spying operations designed to extract more money from consumers at the behest of a few conglomerates.  How to Fix Copyright does not address these specific legislative proposals, but it will help you understand what the debate is and why it is so important.  Unfortunately, Silicon Valley does not know how to make its case in Congress.  Instead of sensible reforms that will protect copyright owners while ensuring enough breathing space for technological innovation, Congress keeps backing legislation destructive to most of the economy that will benefit only a few monopolists.

There will probably be something in How To Fix Copyright that offends just about everyone (Patry’s take on newspapers, for example, is pretty brutal and a little unfair).  But Patry’s pedigree warrants a hearing.  He’s worked in the Copyright Office and been on the front lines of copyright legislation.  More on Patry at Wikipedia here.  He’s argued copyright cases in federal court.  He’s taught copyright law and written treatises on copyright law.  His Patry Copyright Blog was an erudite, combative, passionate joy to read.  And although How To Fix Copyright takes great care to distance itself from Google, Patry is Senior Counsel to Google, an entity with a large stake in perhaps the most disruptive technology ever to confront copyright.  If Google is listening to this guy, you should at least know what he is telling them.
Free excerpts of How to Fix Copyright courtesy Bloomberg here.

Boing Boing's Cory Doctorow calls How to Fix Copyright "incandescent" here.
 Purchase Copyright Litigation Handbook 2011 by Raymond J. Dowd from West here  

Friday, December 23, 2011

Fair Use Fridays: Hitler Reacts to Stop Online Piracy Act #sopa

Genius take on the dangerous and radical Stop Online Piracy Act that is now being rammed through Congress by conglomerates using fabricated numbers to grab control over the internet.

The mashup you see above is an example of "fair use" defined in 17 U.S.C. 107 - it is an exception to copyright infringement under the Copyright Act.

More on the fair use doctrine here.
For more on the history of Hitler/Downfall videos, check out Know Your Meme here.
 Purchase Copyright Litigation Handbook 2011 by Raymond J. Dowd from West here  

Thursday, December 22, 2011

Video Attacks Pending Copyright Legislation - Stop Online Piracy Act #SOPA

Great video from Mike Masnick at Techdirt going after the U.S. Chamber of Commerce's spokesman's support for the Stop Online Piracy Act (SOPA).

SOPA seeks to give the type of control over the internet that exists in China to private copyright owners in the U.S.   This is a tremendous power grab that would change the nature of the internet.  Since it uses DNS masking, it would make the internet less secure and less efficient.

Invented statistics on copyright infringement are nothing new.  But this radical and flawed legislation is seriously problematic and is being rushed through Congress at a time when little else is getting done.

Lots more on SOPA at Techdirt here.
 Purchase Copyright Litigation Handbook 2011 by Raymond J. Dowd from West here  

Sunday, December 18, 2011

Boston Globe: Museum Fine Arts Boston Refuses To Release Research on Kokoschka Stolen From Oskar Reichel

Stolen Kokoschka at MFA Boston: Court Rules Claimants Too Late for Justice
The Boston Globe, in a piece here by veteran reporter Geoff Edgers who has reported on many Nazi art looting scandals involving the Museum of Fine Arts Boston, reports in a rather soft and indirect way that the museum is continuing to conceal its research on how a work by Oskar Kokoschka got from the Jewish Viennese dentist Oskar Reichel in February 1939 to the art dealer Otto Kallir.   Earlier coverage of the case here.

Otto Kallir was profiled in an article Dealer with the Devil by the New York Observer here.

In February 1939, Jews had declared their property to the Nazi Reich.  Vienna was in the grips of Adolph Eichmann, who was systematically despoiling them of all property.

The Boston Globe article states as follows:
She [Reed] does defend the MFA, which she says shares the results of all its Nazi-era provenance research on its website, on gallery labels, and in gallery talks. The only exception is when there is a legal matter that includes correspondence that is privileged.

Her understated approach is typical of Reed. She wants the evidence from her research to speak for itself without telling her boss, MFA deputy director Katherine Getchell, how to respond.
That makes perfect sense to Getchell.

“Her job is not to be a policymaker or decision maker,’’ said Getchell. “We want her focused on research and analysis and looking at the different options.’’

But the Boston Globe has glossed the point.  Victoria Reed has presented no evidence, only the most conclusory "results" of her alleged research.  The Museum of Fine Arts website states as follows here:

Provenance Research
Following this March 2007 claim [to the Kokoschka], the MFA thoroughly reviewed the claim to Two Nudes (Lovers) in accordance with its own Acquisitions Policy as well as the guidelines set forth by the American Association of Museums (AAM), the Association of Art Museum Directors (AAMD), and the Washington Principles of 1998 on Nazi-Confiscated Art. The Museum is committed to determining, on an ongoing basis, whether any work of art in its collection has ever been stolen, confiscated, looted, or otherwise unlawfully appropriated as a result of Nazi persecution without subsequent restitution. A leader in provenance research, the MFA makes ownership information available to the public through its website, During the past decade, the Museum has restituted a number of works of art to their rightful owners based on provenance research.

None of this research has been made public.  Instead, the Museum has published a five paragraph summary of the 'results' of its alleged research.  A sample of this conclusory "research" follows below:

By 1924, Reichel had developed a business relationship with Otto Kallir (b. 1894 - d. 1978), a Jewish art dealer who opened the Neue Galerie in Vienna in 1923. Reichel consigned Two Nudes (Lovers), along with other paintings by Kokoschka, for sale through Kallir in the 1920s and 1930s. In 1938, Kallir fled Vienna and turned the Neue Galerie over to his non-Jewish secretary. He opened a new gallery, the Galerie St. Etienne, in Paris. In February 1939, Reichel transferred ownership of five Kokoschka paintings—including Two Nudes (Lovers) —to Kallir, who exhibited them in his Paris gallery that spring. Later that year, Kallir emigrated to New York and opened a branch of the Galerie St. Etienne there. He exhibited Two Nudes (Lovers) frequently between 1940 and 1945, both in his New York gallery and in traveling exhibitions throughout the United States. From New York, Kallir sent money for the five Kokoschka paintings to Oskar Reichel’s two sons, Raimund and Hans, with whom he was in communication; they were living in South America and the United States, respectively.

Oskar Reichel was a Jew in Adolph Eichmann's Vienna.  His assets were logged and registered with the Nazis.  Nazi law prohibited Jews from making any transfers, and if any transfers were authorized, all of the proceeds went to the Reich.  How on earth could Reichel have tranferred ownership these assets to Kallir?    And even if he did, the 1946 Nullification Act, which voided transactions in property of Nazi persecutees, should have applied.  

Why has the MFA's researcher Victoria Reed failed to present her scholarship for peer review?  Historians are ethically mandated to do so.   Here is an excerpt from the American Historical Association's Statement on Professional Conduct

Professional integrity in the practice of history requires awareness of one's own biases and a readiness to follow sound method and analysis wherever they may lead.Historians should document their findings and be prepared to make available their sources, evidence, and data, including any documentation they develop through interviews. Historians should not misrepresent their sources. They should report their findings as accurately as possible and not omit evidence that runs counter to their own interpretation. They should not commit plagiarism. They should oppose false or erroneous use of evidence, along with any efforts to ignore or conceal such false or erroneous use.
Historians should acknowledge the receipt of any financial support, sponsorship, or unique privileges (including special access to research material) related to their research, especially when such privileges could bias their research findings. They should always acknowledge assistance received from colleagues, students, research assistants, and others, and give due credit to collaborators.

Historians should work to preserve the historical record, and support institutions that perform this crucial service. Historians favor free, open, equal, and nondiscriminatory access to archival, library, and museum collections wherever possible. They should be careful to avoid any actions that might prejudice access for future historians. Although they recognize the legitimacy of restricting access to some sources for national security, proprietary, and privacy reasons, they have a professional interest in opposing unnecessary restrictions whenever appropriate.

For another great example of museums professing to publish research, but in reality concealing it, please check out William D. Cohan's MoMA's Problematic Provenances in this month's ArtNews here
 Purchase Copyright Litigation Handbook 2011 by Raymond J. Dowd from West here  

Friday, December 16, 2011

Fair Use Fridays: Is Copyright Troll Righthaven Dead?

Righthaven LLC has garnered headlines for suing companies and individuals that use copyrighted content online.   Known as a "copyright troll"  Righthaven pursued many instances of quoting or using copyrighted materials that many considered to be considered "fair use" under copyright's fair use doctrine.

"Fair use" is codified at 17 U.S.C. Section 107 as an exception to copyright infringement, but it is famously ill-defined.

Here is an article from the Las Vegas Sun on a judge ordering Righthaven's copyright assets to be auctioned by a receiver.

Today Vegas Inc reported here that Righthaven will ask the Ninth Circuit Court of Appeals to block the auction.

Here from ALM Corporate Counsel is some detail on one of the over 200 cases filed by Righthaven.  In Righthaven LLC v. Democratic Underground (motion here) Righthaven sued over a five-sentence excerpt of a news article that was posted by a political discussion group.

Here from Techdirt we have coverage of Righthaven appealing to the Ninth Circuit from a ruling that copying of an entire work can be fair use, together with a link here to the brief.

Check out for more.   Righthaven Victims blog here reports that Righthaven has been required to pay $225,172.15 so far in sanctions.
 Purchase Copyright Litigation Handbook 2011 by Raymond J. Dowd from West here  

Monday, December 12, 2011

Copyright Infringement: Publisher John Wiley Pursues Bittorrent Dummies

John Wiley's For Dummies TM

In John Wiley v. John Does 1-36 (S.D.N.Y. December 7, 2011 11 Civ 8943), we see an example of a book publisher, here John Wiley, publisher of the "For Dummies"TM series of books suing individuals who have used Bittorrent to download a single book.

The complaint accuses each downloader of copyright and trademark infringement and seeks treble damages on trademark counterfeiting claims, plus punitive damages.

John Wiley Pursues Bit Torrent Dummies
 Purchase Copyright Litigation Handbook 2011 by Raymond J. Dowd from West here  

Monday, December 05, 2011

Operation In Our Sites Nabs 150 Websites on Cyber Monday reports on the U.S. government's seizures of domain names for alleged copyright and trademark infringement here.   Ars Technica gives the history of Operation In Our Sites here and here and here.

U.S. Immigrations and Customs Enforcement's description of Operation In Our Sites here.

National Intellectual Property Rights (IPR) Coordination Center here.

Wired's take here.

Attorney General Eric Holder's Nov 29, 2010 Cyber Monday raid announcement here.
 Purchase Copyright Litigation Handbook 2011 by Raymond J. Dowd from West here  

Sunday, December 04, 2011

Top Copyright Blogs: Copyhype, Supporter of Stop Online Privacy Act Makes AmLaw 100

 Congratulations to Terry Hart for making the 2011 AmLaw Annual Blawg 100 for Copyhype.   Copyhype follows a line of thinking promoted by Ben Sheffner's excellent Copyrights & Campaigns.

That means a point of view in the Copyright Wars that espouses the view that copyright owners need more enforcement tools, that copyright law should be strengthened, and that is highly skeptical of the fair use doctrine.   For example, Copyhype supports the Stop Online Piracy Act, my personal views on the legislation here.

Steve Colbert on SOPA below (thanks Brandgeek)

CNET reports here that Yahoo has quit the U.S. Chamber of Commerce because of its support for SOPA and that Google and others are considering suit.  Essentially SOPA would hand over tremendous power to a few media oligopolies that could shut down many promising Silicon Valley companies on a whim and discourage innnovation. Techdirt's view here and here.

For more Colbert, Danny Goldberg and Jonathan Zittrain on SOPA, visit Brandgeek here.

Petition to kill the E-Parasites Act received 48,151 signatures, exceeding the 25,000 goal.
 Purchase Copyright Litigation Handbook 2011 by Raymond J. Dowd from West here  

Friday, December 02, 2011

Fair Use Fridays: Screening a Film for Free on Campus

A good video on application of Copyright's fair use doctrine in the context of screening a film for free on campus. 

Read the law, 17 U.S.C. Section 107 here.
 Purchase Copyright Litigation Handbook 2011 by Raymond J. Dowd from West here