This week’s edition of Clippings is all “straight, no chaser”: a good number of new stories, a good number of older stories, and a QoTW that questions core elements of the U.S. patent system.

Quote of the Week

“Even if AT&T’s [telephone] patent is theoretically applicable to the Internet, why should AT&T be allowed to claim such rights? If I set up an packet-based extraterrestrial communications network five years from now, should AT&T ‘own’ the rights to it?” — Alexander Wolfe

Wolfe’s Den. AT&T Suit Against Vonage Makes Mockery Of U.S. Patent System. Oct 22, 2007. Information Week columnist Alexander Wolfe blows hard, but true in his incredulity at the state of the U.S. patent system, which contributed to AT&T’s patent infringement lawsuit against Vonage. Cases: Cases & Litigation; Patent; Web & Online.

Clippings

Catherine Pickavet. Trademark Infringement Meets Consumer Privacy. Internet News. Oct. 29, 2007. Similarly named companies battle over trademark confusion, while consumers routinely send private and confidential e-mail to the wrong financial institution. Categories: Privacy & Security; Trademark.

The Wired Campus (Chronicle of Higher Education). Senators Support Open-Access Measure. Oct. 29, 2007. The Senate passes appropriations bill HR 3043, which includes language requiring all NIH-funded researchers to submit their final manuscripts to the National Library of Medicine’s PubMed Central. Now the measure, already passed in the House, needs to survive a Bush veto. Categories: Legislation & Regulation; Open Access; Science & Medicine.

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The Clippings train continues, pulling in with stories about Jerry Seinfeld’s wife and spinach; iPods and the TEACH Act; downloads and taxes; movies and advertisements; and a sincere, well written, well considered recitation from a publisher (gasp!!!) about the problems it faces with infringement from potential customers who likely mean well, but misunderstand the Copyright Act of 1976.

Articles of the Week

The Movie Blog. Why Commercials Before Movies Is Worse Than Piracy. Oct. 16, 2007. A simply great, common sense, well deserved rant about the evils of in-movie advertising. Categories: Film & Video; Infringement.

EnvironmentalChemistry.com. Plagiarism, Copyright Infringement, Fair Use and Environmental Organizations. Oct. 16, 2007. Regular readers know we have not hesitated to strongly criticize publishers for their consistently overreaching allegations of copyright infringement. We never have said, however, that publishers do not suffer copyright infringement; certainly infringement and plagiarism hurt small publishers in disproportionate way. This post is one of the most honest, candid, spin-free explanations we’ve seen about how infringement hurts publishers. What’s more, this editor concedes fair use exists, but cogently explains that fair use is not a license to commit infringement. We urge officials at the Association of American Publishers to study this article thoroughly and use it as a case study in how to explain the infringement issue to the public, instead of continuing the ineffective, often disingenuous, propaganda-laden scorched earth campaign it has pursued to frighten its audience into copyright compliance. Further, we encourage the public to use fair use and other copyright exceptions to their full limit; we also urge the public to pay for the information and entertainment you use and enjoy. Categories: Fair Use & Other Limitations; Infringement; Web & Online.

Quote of the Week

“Good teaching shouldn’t be unlawful.” — Rebecca Tushnet

43(B)log. iTeach. Oct. 11, 2007. Georgetown law professor Rebecca Tushnet mentions what a shame it would be if innovative language learning initiatives (such as the one occurring in New Jersey using iPods) had to succumb to an inflexible copyright regime. Categories: Education; Mobile Devices.

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Technology publication ArsTechnica is reporting that Jammie Thomas’ appellate strategy will be to question the damages award first, leaving to a later date the broader (and arguably more important) issue of whether or not “making available” files violates the reproduction and distribution rights in Section 106. Ars reports that if the court decides against granting a new trial, Thomas would have 30 days to appeal the original verdict, and she could use that opportunity to argue against the “making available” doctrine, which the judge conveyed in jury instructions.

William Patry has observed that he would be “stunned if there is any room for overturning the award. There is doubt that any award within the permissible range, even the tippy-top, is subject to review. I think there may well be cases where a damage award may be constitutionally flawed, but this is not one of them.”

Still, since Thomas currently is responsible for more than $200,000 in statutory copyright infringement damages, there is little surprise that she would look to reduce that figure. The strategy, however, smells like an unfortunate case of CYA and seems narrow considering the broader stakes at hand.

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Another weekly edition of Copycense Clippings, with stories about Led Zeppelin, Radiohead; free radio in the U.S.; limited downloads in Europe; and the Nobel Prize that made the iPod possible.

Quote of the Week

“A sensible copyright system—perhaps similar to the one we had for most of the 20th century—would work just fine for the 21st century. It would ensure artists are fairly compensated while greatly reducing the deadweight losses Baker identifies in the status quo. The reasons these reforms haven’t happened (and indeed, the reason that copyright rules keep getting more and more draconian) is that the copyright industries are one of the most powerful special interest groups on Capitol Hill. This is the old story of concentrated benefits and dispersed costs. There’s no shortage of good reform proposals, there’s just no one with the clout to push any of those reform proposals through Congress.” — Timothy B. Lee, Cato Institute

Cato@Liberty. A Bad Copyright Reform Proposal. Oct. 11, 2007. Lee’s quote is a response to an article by Dean Baker, co-director of the Center for Economic Policy Research and editor of the Beat the Press blog on economic reporting, in which Baker opined that artist subsidies (such as his proposed Artistic Freedom Voucher) are a useful alternative to copyright law run amuck. Unfortunately, Lee does not prescribe any solutions to this problem.

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(Editor’s Note: This article accompanies a lecture K. Matthew Dames gave Oct. 9, 2007, to the Digital Libraries class (IST 677) at Syracuse University’s iSchool. The Fall 2007 class is taught by University Librarian Suzanne Thorin and Angela Ramnarine-Rieks, web administrator at Syracuse University Library.)

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Since we began publishing independently, we have railed against two things consistently: sloppy, misleading, or biased commentary about the copyright debate; and copyright propaganda disguised as “education.” (Unsurprisingly, the latter is filled with the former.) Our most recent comment about copyright education appeared last month.

Almost all of the “education” efforts we have criticized have been initiatives developed by large businesses that derive most of their revenue from copyrighted art or entertainment, or trade groups that represent those businesses. Before now, we would have thought that the court system would be above politicizing the copyright debate, or invoking egregious bias into it, because the court system and members of the judiciary must arbiter copyright disputes fairly, without a predisposition toward either the copyright owner or an alleged infringer.

Unfortunately, we have been proven wrong.

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[Editor’s Note: Due to technical difficulties, we were unable to publish this week’s Clippings during our regular Tuesday, Oct. 9 slot. We apologize for the inconvenience. To compensate, we have extended our coverage of the RIAA’s jury verdict victory against Duluth, MN resident Jammie Thomas.]

Issue of the Week

Given the jury verdict against Jammie Thomas, a Minnesota woman found liable for copyright infringement, we have decided to transform our Article of the Week into an Issue of the Week. Here, we will round up some of the Web’s best coverage in Virgin v. Thomas. Categories: Cases & Litigation; File Sharing, P2P & Downloads; Infringement; Music.

Threat Level (Wired). RIAA Juror: ‘We Wanted to Send a Message’. Oct. 9, 2007. Wired reports the jurors deliberated only five minutes before they concluded Jammie Thomas had committed copyright infringement. It seems the general consensus within the jury was Thomas was not a credible witness. With so much on the line in the larger perspective, we wondered if Thomas’ lawyers ever doubted her story, or whether a Minnesota jury would believe that story. Within the last decade or so, it seems many of these music download cases have had two things in common: the defendants rarely win, and the defendants rarely are “ideal defendants” given their actions, their political views, their alibis, or their circumstances. It’s unfortunate that so many of these cases seem to involve defendants who are not ideal witnesses.

The Iconoclast. Will Appeal Succeed In RIAA’s $222,000 ‘Making Available’ Case? Oct. 8, 2007. Declan McCullagh reviews the likely issues that Thomas and her lawyers will raise on appeal. We will be interested in seeing if another legal team handles the appeal, since federal appellate work is a special niche. And while we’re on the topic of legal representation, where was the Electronic Frontier Foundation in this case. EFF certainly provides legal representation in select cases, so why not a high profile case like this one?

Eric Bangeman. How the RIAA Tasted Victory: A Perfect Storm Which Might Not Be Repeated. ArsTechnica. Oct. 7, 2007. After Ars’ Bangeman wrote the verdict story, he returns later in the week to write a postscript: “With the RIAA having successfully tried a case, there’s now a template for how to handle future cases that go to trial. First, the RIAA will need to make sure that the evidence is as exhaustive as possible. Second, the labels will need to be able to make a concrete connection between the screen name on KaZaA (or whatever application is in use) and the human being at the keyboard, something they were able to do with Thomas. If the defendant doesn’t have a wireless access point or a router, so much the better. Lastly, try to keep the legal team together. The RIAA’s lead counsel, Rich Gabriel, did an excellent job shepherding the evidence and presenting the case.”

Media 3.0 with Shelly Palmer. Episode 43. Oct. 6, 2007. A nearly 17-minute interview with Ray Beckerman, who co-authors the Recording Industry vs. The People Web log.

Recording Industry vs. The People. My Comment on the Jury Verdict in Virgin v. Thomas. Oct. 5, 2007. Beckerman expresses incredulity at the verdict and an urgent call to arms. “I hope it is a wakeup call to the world that we all need to start supporting the defendants in these cases, and the attorneys who are sacrificing so much to represent them. And the support cannot be with words, it must be with check books. And it cannot be next year, it must be now.” This Web site also maintains a compendium of trial documents; we expect it soon will include a trial transcript.

The Iconoclast (News.com). Four Reasons Why the RIAA Won a Jury Verdict of $220,000. Oct. 5, 2007. Razor sharp Declan McCullagh provides a cogent analysis on the how the recording industry was able to persuade a Minnesota jury that Thomas committed infringement by making available more than 1,700 songs through the Kazaa network. McCullagh’s coverage also links to important case documents. Particularly interesting is McCullagh’s synthesis of the jury instructions and how they connected with the a doctrine that alleges that merely making music files available online constitutes copyright infringement, even if no other users download those files. William Patry noted the rise of this doctrine earlier this year in a Pennsylvania case, and Columbia’s Jane Ginsburg also has discussed this issue.

The Patry Copyright Blog. The RIAA’s Jury Verdict. Oct. 5, 2007. William Patry focuses his comments on the relative reasonableness of the jury’s damages award, and the unlikelihood that part of the decision will be overturned on appeal. Patry’s post is brief, but the post’s comments are extensive and interesting.

Technology & Marketing Law Blog (Eric Goldman). “Making Available” as Copyright Infringement–Capitol v. Thomas. Oct. 4, 2007. Goldman’s coverage does not differ significantly from the other outlets’, but he links to several other posts where he has discussed the “making available” cause of action upon which the verdict seemingly hinged.

Quotes of the Week

“The Washington Post has an article on the entertainment industry’s efforts to increase penalty’s [sic] for copyright violations. The article wrongly claims that [copyright] violations cost the economy money. This is untrue on its face. The losses to the industry are gains to consumers, and those who know economics would know immediately that the gains to consumers vastly exceed the losses to the industry. Some economic analysis would be useful in this article. … The monopoly status of copyrights mean as a logical proposition that the gains to consumers from ending copyright will be greater than the losses to producers. In addition, there are also all the costs associated with enforcement (e.g. software locks, lawyers police to invade bedrooms), which are a pure loss from a social standpoint.”

Beat the Press (The American Prospect). The Attack of the Protectionists: Where are the Economists? Oct. 3, 2007. Dean Baker’s quote is one of the few times in which we have found an unbiased economic voice that challenges the entertainment industry’s endless (and questionable) assertions that so-called “piracy” hurts the American economy. But it is refreshing to hear another point of view. Even we had not considered that the end copyright’s “life plus 70″ monopoly (also called the public domain) would provide greater gains to consumers than the losses copyright owners suffer. What is unsettling, though, is that the one-sided views of the entertainment industry are used, for example, by U.S. trade representatives to develop trade policy that governs intellectual property.

Which leads us to our second Quote of the Week from Mr. Baker.

“Government imposed monopolies like patents and copyrights arguably have no place in a free market economy. These monopolies have a large and growing impact on the economy, affecting the distribution of trillions of dollars of goods and services worldwide. They have also been the topic of heated dispute in recent trade agreements.”

Beat the Press. Pew Finds Worldwide Opposition to Patents and Copyrights. Oct. 5, 2007. Categories: Business & Commerce; Framing & Rhetoric; Public Domain & Term.

Clippings

Jonathan Bailey. Copyright Cases to Watch: Lenz v. Universal. The Blog Herald. Oct. 8, 2007. We disagree: this is not a case to watch; it is a case that begs to be settled. This is a relatively simple issue: an aggressive, questionable DMCA takedown, followed by a lengthier than required restoration period. Questionable DMCA takedowns are unfortunate and should be stopped, but why make a mountain out of this case when the Jammie Thomas trial is being prepared and occurring? Ultimately, EFF’s decision to select this case instead of the Thomas case begs the question why (besides publicity) would the Electronic Frontier Foundation get involved? YouTube has restored the video, harm is no longer evident or even calculable. EFF says this is about halting copyright abuse. Wouldn’t the organization’s members and mission have been served more admirably by trying to get some clear guidance on the “making available” doctrine that is at the core of the Thomas litigation? Categories: Cases & Litigation; DMCA; Film & Video; Web & Online.

Rocky Mountain News. Copyright Wrongs. Oct. 8, 2007. The editorial board at the News rejects provisions in H.R. 3476 that would require the education secretary to keep a tally of reported copyright violations involving students using campus online networks. Categories: Education; Legislation & Regulation; Politics & Government.
Bobby Jordan. Drug Companies Looting SA’s Bounty of Medicinal Plants. The Times (South Africa). Oct. 7, 2007. We’ve not devoted much coverage to patenting plants, genome sequences, and other forms naturally occurring substances or traditional knowledge. (We have enough of a challenge covering copyright adequately.) The patent reform debate in the U.S. has focused mostly on business process patents, but clearly this is an area in which reform also is critical. Categories: Patent; Science & Medical.

BBC News. Kwik-Fit Sued Over Staff Radios. Oct. 5, 2007. Here’s the latest joke: “So a guy is hacking away at a tailpipe, listening to his radio when all of a sudden a suit walks in the shop. Guy says, ‘Howdy mate.’ Suit says, ‘You’ve been served.’” A lawsuit because employees are listening to the radio at work? That sounds like the height of stupidity and desperation. Categories: Broadcasting & Journalism; Cases & Litigation.

BBC News. Procol Harum Battle Back in Court. Oct. 4, 2007. Lead singer Gary Brooker is appealing against last year’s ruling that organist Matthew Fisher was entitled to a portion of the song’s royalties from the group’s hit “A Whiter Shade of Pale.” Categories: Cases & Litigation; Infringement; International.

Ellen Lee. Cal Offers Full Courses on YouTube - But Not for Credit. SFGate.com. Oct. 4, 2007. Cal-Berkeley has been a consistent innovator in education delivery (broadcasting classes online in 1995; distributing courses via free podcasts through the iTunes store as of last year), so this initiative is novel for them, but not a stretch. Categories: Education; Film & Video; Web & Online.

News Blog (News.com). AT&T Defends Plan to Detect Customers’ Net Piracy. Oct. 3, 2007. In June, AT&T announced that it would work with film studios to develop technological solutions that would prevent subscribers from exchanging large amounts of content. This story is about AT&T’s attempt to diminish potential customer service criticisms. Categories: DRM & Copy Protection; Web & Online.

Frank Ahrens. With Video, Music Piracy on the Rise, NBC Chief Calls for Tougher Penalties. WashingtonPost.com. Oct. 3, 2007. This is all you need to know about Zucker’s stance: “If we don’t continue our education campaign, I fear that we will lose that momentum that we have gained.” NBC in the copyright education business? Just what we need. Also, see our Quote of the Week. Categories: Legislation & Regulation; Politics & Government.

Jason Marks. Arizona State Univ. Contacts Va. Beach H.S. Alleging Copyright Infringement. WAVY-TV (Portsmouth, VA). Oct. 2, 2007. The editorial staff made an egregious error by claiming the alleged violation is copyright infringement; in fact, ASU is alleging Salem High School’s logo is a trademark infringement of the Sun Devil logo. But a visual comparison of the two logos (available in the story) clearly shows that there is no resemblance between the logos, which suggests ASU is looking to bully a smaller institution into ceding its nickname. Categories: Education; Trademark.

Rewind: Ones We Missed
(Interesting stories we missed after we sent previous editions to press.)

Nate Anderson. Copyright Lawyer Tells Universities to Resist “Copyright Bullies.” ArsTechnica. Sept. 28, 2007. Northeastern University School of Law professor Wendy Seltzer talks (RealMedia player needed) to an audience at Cornell, and urges universities to fight the RIAA. We find it significant that Seltzer’s talk occurred at Cornell because around this time last year, Cornell decided not to fight the Association of American Publishers and its accusations of copyright infringement. Categories: Education; Events; File Sharing, P2P & Downloads.

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