Some readers have informed us they appreciate Clippings’ incisive, retrospective commentary about the week in copyright and digital media, but have suggested that we break out some of our longer passages into distinct entries. Doing so, they have argued, will make certain longer entries easier to read, and will ensure that our readers can link to the longer entries without losing them within a broader Clippings publication.

We couldn’t agree more.

Therefore, beginning this week, we will make remix and republish select individual stories from each edition of Clippings, including all our Article of the Week and Quote of the Week entries. These new entries often will add extended commentary and analysis. The remixed versions will be published throughout the 7-day period between Clippings editions.

In the end, we believe this effort will make the content more readable and accessible. Thank you to all who suggested improvements.

In this week’s huge edition of Clippings, we look at registration reform; news media inaccuracy; a challenge to the DMCA “safe harbor”; ICANN seeking independence; and the wireless spectrum auction.

This is Copycense.

Articles of the Week

Public Knowledge. Don’t Trust the Media to Get Copyright Right: Scrabulous Coverage Scores Few Points. Jan. 22, 2008. Often, we have taken the press to task for its frequently errant and one-sided coverage of intellectual property issues. When IP was a backwater issue, poor (and sometimes inaccurate) coverage was a problem, but was not evident. Now IP often warrants front-page, above-the-fold coverage, and the mistakes not only are evident, they are harmful. A news organization’s primary professional objective is to get it right. Writing flowery prose like Selena Roberts is optional. Talking loud and saying little like Stephen A. is optional. Whining while cashing checks like Mr. Tony is optional.

Getting it right, on the other hand, is mandatory.

Marc Fisher got it wrong in a big way last month, likely because he relied on second-hand reporting and did not do the requisite amount of fact- and document checking. Now, as PK points out, several media outlets seem to have gotten the Scrabulous/Facebook story wrong, attributing to an alleged copyright infringement problem what really is an alleged trademark infringement problem. Not only is this unacceptable, it is grossly unprofessional. If the news media can’t get it right, above all else, it’s useless. Categories: Broadcasting & Journalism; Infringement; Trademarks.

Dan Heller’s Photography Business Blog. Proposal for Privatizing the Copyright Registration Process. Jan. 21, 2008. Citing other instances of government outsourcing — including U.S. Postal Service allowing Mail Boxes Etc. and other commercial mail receiving agencies to manage mail delivery and pickup — Heller suggests that the U.S. Copyright Office accredit private sector business to handle copyright registrations. (Although Heller does not mention this specific example, America already is quite familiar with registration outsourcing: domain name registrations are outsourced to hundreds of registrars that are accredited by the Internet Corporation for Assigned Names and Numbers (ICANN).)

We already have some businesses that purport to handle copyright registrations, but many of these firms seem suspect at best. A rigorous accreditation process (similar to the one ICANN uses), overseen by the U.S. Copyright Office, likely would weed out the fly-by-night firms. Further, the U.S. Copyright Office already has received poor marks for its online registration system, so there remains a legitimate question as to whether the agency can implement a solid solution. And online registration clearly is the way to go, since (a) USPS mail to federal government agencies still gets delayed because of anthrax screening; and (b) it’s 2007 and our federal government should have online services like this down pat by now.

Further, broadening the registration process may encourage more people to register their works. Currently, copyright is the only one of the Big Three forms of intellectual property where neither registration nor public review is required prior to the government granting monopoly status. This leads to several problems, not the least of which is a huge orphan works nightmare, and a suppressed, downstream licensing market that suffers because no one can find the correct copyright owner.

This is a marvelous idea in so many ways. Categories: Registration; U.S. Copyright Office.

Eric Bangeman. Debating Copyright Reform: Time for Compulsory Licenses? ArsTechnica. Jan. 21, 2008. Ars reports on a copyright panel convened at the Consumer Electronics Show entitled Washington, Intellectual Property and Your Living Room, which was moderated by Ars editor Kenneth Fisher. The panel seemed fairly balanced, which is unusual for these panels, and everyone allegedly agreed some sort of copyright reform was necessary. Surprisingly, though, compulsory licensing was discussed, and at least one panelist positioned compulsory licenses as a way of providing compensation in light of the fact that copyright owners no longer can control their works.

There are two basic arguments here. On one hand, a compulsory license would force media companies to license their works at an established, set rate. (For example, royalties for cover songs are paid according to a rate set in a compulsory license.) Additionally, it would eliminate the often licensing negotiations, many of which can be ridiculous and random. (The music industry, in particular, suffers this problem when it comes to digital sampling.) On the other hand, U.S. Register of Copyrights Marybeth Peters is on record as opposing compulsory licenses because it hurts “creators.” As we mentioned last week, though, one must be careful with the label “creators”: are we talking about individuals, or multinational corporations that own and control the copyright monopoly? We’re unsure what Peters means when she refers to “creators.”

Nevertheless, this is the first time we recall hearing someone — anyone — talk seriously about compulsory licensing as an option worth investigating. Also, it is the one of the first times we can recall any person who deals with copyright for a living bluntly proclaim that control of protected works no longer is possible or realistic. Categories: Bundle of Rights; Licensing & Permissions; U.S. Copyright Office.

Quotes of the Week

“One way to look at plaintiff’s difficulties here is as further evidence of the disproportionate difficulties African-Americans have had in getting the benefits of IP protection.” — Rebecca Tushnet.

43(B)log. Strikeout: Baseball Player’s Claim Against Cards Fails. Jan. 5, 2008. Georgetown law professor Tushnet (no, the junior Tushnet) ends her analysis of a lawsuit against the Topps trading card company with this interesting comment. The lawsuit (which was based on right of publicity, trademark and related claims) was brought by the daughter of legendary Negro Leaguer James “Cool Papa” Bell, alleging that the trading card company did not have permission to print Bell’s likeness on a trading cards released earlier this decade. Tushnet’s summary says Bell granted to the Baseball Hall of Fame permission to use his name and likeness on various products. (Bell was inducted into the National Baseball Hall of Fame in 1974.) Tushnet’s comment raises interesting issues about IP protection and race.

Stories are legion about the extent to which creative, technical, or scientific achievements by African-Americans have been appropriated without initial or residual compensation. And strains of complaint often make it into the lyrics of contemporary music. (Even Jay-Z once said in “H.O.V.A.” “I’m overcharging labels for what they did to the Cold Crush.”) We would be very interested in seeing any articles, reports, books, or scholarly work that addresses this phenomenon and estimates the lost value therefrom. Categories: Licensing & Permissions; Trademark.

Copycense: Incisive IP.

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This week’s edition of Clippings is huge, with gadget news and copyright implications from the Consumer Electronics Show. This week we plumb why 24 hours is not enough time to watch an iTunes movie rental; more evidence that Canadians consider copyright a serious political issue; elevating copyright to human rights status; the Seinfelds being accused of infringement and defamation; and the chair of the House’s copyright committee leaving the building.

This is Copycense.

Article of the Week

The Patry Copyright Blog. Appeals to Human Rights: The Next Battlefield? Jan. 17, 2008. If there’s any single writer that can make copyright humorous, it is William Patry. When describing the push to equate copyright (a relatively minor issue in the broader scheme of world affairs) with human rights (an extraordinarily important issue), Patry comments with typical sarcasm: “I confess to being moved to tears by European human rights attorneys taking up the cause of very large U.S. broadcasting corporations: Donald Rumsfeld was so wrong.”

Seriously, though, the injection of copyright into international affairs has been steady and dangerous since the trend results only in more rights for multinational corporations. Talk about “authors” and “creators” has little to do with individuals who create original works fixed in a tangible medium of expression. Those words merely are code designed to make readers think Grandma needs more rights to protect her cross-stitch designs. In reality, “Grandma” is a global commercial behemoth with business presences on all continents that is hell bent on leveraging copyright and other intellectual property schemes to foster dollar-driven hegemony.

(Well, perhaps not the dollar these days. Substitute the Euro.)

In fact, one could argue reasonably that here in the U.S., the effort to move copyright past what Patry calls its “current Incredible Hulk level” is occurring at least as much on the international and local levels as it is in Congress. We have reported several of the entertainment and content industries’ lobbying efforts have resulted in a sort of “paracopyright” at the state level. (California’s passage of AB 307, which ties school funding to a copyright “education” program influenced by the RIAA, is one example.)

And, of course, we have chronicled at several junctures the Special 301 process under the Office of the U.S. Trade Representative. The Federal Register notice that effectively asks multinational corporations and their trade groups to tell the Trade Representative which countries have failed to draft (or enforce) copyright law at America’s “Incredible Hulk level” was published last week. It is due on Monday, February 11. The copyright choke hold is in full effect and running on all eight cylinders. Categories: Bundle of Rights; International; Politics & Government.

Quotes of the Week

“Clearly, content creators deserve to be sufficiently rewarded for their work to make their endeavour worthwhile. At the same time, consumers have the right to enjoy the full capabilities of the equipment they’ve purchased, free from restrictions on what they can record and the use they make of content once it has been legitimately obtained. A revised copyright law must strive to find a balance between the rights of creators and ‘fair use’ by consumers.” — Vancouver Sun editorial board.

Vancouver Sun. Reformed Copyright Laws Shouldn’t Suppress Creativity. Jan. 16, 2008. Since there is no byline on this story from a major Canadian newspaper, we presume this is an editorial. If so, the tone is remarkably (and refreshingly) strident for a mainstream news outlet. Categories: Broadcasting & Journalism; Bundle of Rights.

“Surveys reveal that both adults and children (aged 12-15) have very high levels of awareness and understanding of the basic principles of intellectual property. However, young people feel that copyright regimes are unfair and unjust and a big age gap is opening up. The implications for libraries and for the information industry of a collapse of respect for copyright is potentially very serious.” — University College London.

Information World Review. My Generation. Jan. 17, 2008. This passage on copyright is but a snippet of a report whose main focus is on information seeking behaviors. We find it interesting, however, and would like to see an independent American researcher conduct a rigorous, well designed social science study of high school and college children to gain their perspective on copyright. Categories: Libraries & Information Science; Web & Online.

Copycense™: Incisive IP.™

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Editor’s note: Copycense writers and editors compiled this version of Clippings during our annual holiday break. It was published in mid-January.

Article of the Week

projectb15ck. UCSC Network Woes. Jan. 9, 2008. According to an e-mail within the body of the post, the information technology department at University of California, Santa Cruz is using Cisco’s Clean Access appliance and software to “help speed up the network for legitimate uses and reduce the risk of ‘accidental’ copyright infringement.” In the e-mail, John Rocchio , a UCSC IT administrator, says Clean Access will be configured to block file sharing services such as Gnutella and Bittorrent. The poster notes UCSC is a public university, therefore it is spending public funds to block Internet access. The unnamed writer asks incisively what difference is there between UCSC’s action’s and Comcast’s reported filtering of P2P traffic. Categories: File Sharing, P2P & Downloads; Education; Music; Networks; Privacy & Security.

Quote of the Week

“2008 has to be the year we get real or the business as we know it goes away.” –Fred Goldring, entertainment attorney.

Elizabeth Montalbano. Digital Music Industry Challenged to Follow Fans’ Lead. PCWorld.com. Jan. 9, 2008. You’re kidding us, right?

Copycense™: Incisive IP.™

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Editor’s note: Copycense writers and editors compiled this version of Clippings during our annual holiday break. It was published in mid-January.

Article of the Week

The Patry Copyright Blog. What RIAA Has Said About Home Taping. Jan. 7, 2007. Yes, Washington Post columnist Marc Fisher got the “RIAA says ripping to CD is illegal” story so very wrong. Unfortunately, what the RIAA has said about its stance on home taping (or ripping to CD) is clear as mud. Patry sifts through the RIAA’s stance on these issues, and gives credence to the contention that fuzziness in this area does consumers no good, especially since the RIAA has shown it will sue even if a rightful owner does anything that does not involve a paid license. Categories: Bundle of Rights; Fair Use & Other Exceptions; Music.

Quote of the Week

“[A] good sign of a dying industry that investors might want to avoid is when it would rather litigate than innovate, signaling a potential destroyer of value. If it starts to pursue paying customers — which doesn’t seem that outlandish at this point — then I guess we’ll all know the extent of the desperation. Investor, beware.” — The Motley Fool.

Alyce Lomax. We’re All Thieves to the RIAA. The Motley Fool. Jan. 2, 2008. The Fool, along with several other news outlets, reported the erroneous information that the RIAA argued ripping to CD is copyright infringement, an error we caught and explained in our Dec. 11 edition of Clippings. The key portion of this post is an investment Web site’s advice to readers to divest themselves of stock holdings in the four multinationals that include record companies among their holdings. If investment industry officials no longer have faith in your business model, that’s fatal. Categories: Business & Commerce; Music.

CommuniK. Clippings

TorrentFreak. Oscars Veteran Resigns Over DVD Screener Piracy Threat. Jan. 5, 2008. The film award season always is a special time of year for those that think such things have life significance. It also means bucket loads of DVDs will criss-cross the country, as members of the Academy screen the films and are feted “for [their] consideration” of an Oscar nomination. Until recently, Oscar nominations or wins never factored into any sort of movie marketing. (We first recall a notable push to market a film’s quality based upon the number of Oscar winners when we saw trailers for the 2002 film Insomnia.) Now, every two-bit film that has a single nominee makes sure the audience knows that factoid. It’s as if the producers imply with this sort of marketing that “because we have this Academy Award winner and that Academy Award nominee, this film won’t be an utter and complete waste of $100 million (or more).”

But we digress.

Film distribution season also means that the films will get copied and, as always happens, find their way onto the Web. This is the first year we’ve heard about the Academy taking strong steps to halt the copying, and also the first time we’ve heard that an Academy member resigned in protest. We presume all the brouhaha is about protecting the nominated films’ lucrative downstream DVD market, but we’re sure screeners don’t like being made out to be criminals. Categories: DRM & Copy Restrictions; Film & Video.

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The final Clippings edition of this year features a novel approach to copyright reform; the Canadian citizenry stopping cold the march of restrictive copyright; and using P2P for marketing purposes.

Thank you for continuing to follow Copycense. We will resume Clippings coverage early next year.

This is Copycense.

Article of the Week

Pamela Samuelson. Preliminary Thoughts on Copyright Reform. The UC-Berkeley law professor offers “preliminary thoughts about what a model copyright law might include and how one might go about getting rid of some of the clutter in the existing statute,” using the example provided by the American Law Institute’s model laws. Categories: Legislation & Regulation; Research.

Quotes of the Week

“It is undisputed that Defendant possessed unauthorized copies of [] copyrighted sound recordings on his computer. … Virtually all of the sound recordings … are in the ‘.mp3′ format. … Defendant admitted that he converted these sound recordings from their original format to the .mp3 format for his and his wife’s use. The .mp3 format is a ‘compressed format [that] allows for rapid transmission of digital audio files from one computer to another by electronic mail or any other file transfer protocol.’ Napster, 239 F.3d at 1011. Once Defendant converted Plaintiffs’ recording into the compressed .mp3 format and they are in his shared folder, they are no longer the authorized copies distributed by [plaintiff recording companies].” — Recording Industry Assn. of America brief in Atlantic v. Howell.

MacNN. RIAA Claims CD Rips Are Piracy in Lawsuit. Dec. 11, 2007. The MacNN headline is provocative, but not quite accurate. What the music industry lobby argues that ripping copyrighted music from CD (i.e. the “original format”) to another format (e.g. .mp3 files, for example) and posting to a shared folder on a peer-to-peer program (like Kazaa) means the music becomes de facto illegal, and therefore copyright infringement. While most coverage of this brief focuses on the alleged illegality of ripping music from compact disc to another format, to us the real story is about the recording industry’s attempts to extend into judge-made law the “making available” doctrine, which the industry argued strongly in the Jammie Thomas trial. Although the RIAA does, in fact, think that making personal copies of music is illegal, we’d like to think the likelihood of them trying to enforce that principle alone is far fetched. We’ve seen stranger things occur, however. Categories: Bundle of Rights; Cases & Litigation; File Sharing, P2P & Downloads; Music.

“We are willing to purchase media, and have thousands of music and movies; we are the entertainment industries best friend when it comes to spending money on entertainment. But as with all end of an era kind of things, everything we do is somehow proscribed, regulated, or locked. Those heady days of being 14 or 40 and copying something so it can come with us are over, and that is a shame.” — Techwag.

Techwag. The End of An Era Over Copyright. Dec. 12, 2007. We disagree that the days of copying something to come with you are over, but it is a shame that too many citizens feel proscribed from doing this very fundamental networked activity. Categories: Bundle of Rights.

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Plagiarism Today. The Copyright Office’s Online Registration System. Dec. 4, 2007. A comprehensive review of the U.S. Copyright Office’s Electronic Copyright Office registration system. A commenter hit the nail on the head when he points out the system should be better than a 3 out of 10 when it has been in development for so long.

(Editor’s Note: Copycense editors originally commented on this article in the Dec. 11, 2007, edition of Copycense Clippings.)

Copycense™: Incisive IP.™

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This week’s edition of Clippings features extended commentary on our three Articles of the Week; an update on Radiohead’s online distribution play; Tim O’Reilly analyzing e-book possibilities in the face of the Kindle’s introduction; and two thumbs down for the Copyright Office’s online registration system.

This is Copycense.

Articles of the Week

The Iconoclast (News.com). Major Copyright Bill Boosts Penalties, Creates New Agency. Dec. 5, 2007. Intrepid News.com tech reporter Declan McCullagh summarizes the entertainment industry’s latest legislative gambit, called the “PRO IP” bill. All the usual monopoly enforcement and extension concessions are present in “PRO IP,” but the kicker is the creation of a Cabinet-level post that would serve as the president’s principal advisor and spokesman for intellectual property matters, as well as identifying countries that don’t adequately protect IP rights. This is particularly important, since American intellectual property law now is one of America’s chief exports, courtesy of the Trade Representative’s Special 301 process. Arguably, this new post — which McCullagh says would have an initial budget totaling $25 million — would supplement the Trade Representative’s efforts to make U.S. intellectual property law the global standard.

It does not concern us that the entertainment industry is trying once again to make copyright law even more restrictive than it is; to echo a Chris Rock skit, this is what the entertainment industry is supposed to do. Instead, what concerns us is the ventriloquist-like effect the lobby has on members of Congress, who seem to mindlessly parrot the industry’s propaganda about things like “global competitiveness,” “piracy,” and “economic losses.” The industry’s “evidence,” so much of it without a shred of empirical or objective validity, should not be the basis for public policy. Categories: Bundle of Rights; Legislation & Regulation; Politics & Government.

Eric Bangeman. Colleges Serious About Dealing With Copyright, P2P Issues. Ars Technica. Dec. 5, 2007. Now that we’ve ranted about the entertainment industry’s use of meaningless statistical data, we voice similar concerns about the Brandeis University DMCA survey. Survey studies are like teaching: easy to do, difficult to do well. This study has some holes in it. The first thing that concerns us is the low number of respondents (79); that is too few from which to make reasonable popular generalizations. The second issue that concerns us is the nature of the questions themselves. For example, Question 2 asks “What non-punitive measures have you taken to reduce DMCA complaints?” Two of the possible responses mention “education.” What is copyright “education”? How is it done? How often? Who does it? Are rights and exceptions reviewed in the educational initiative? There are too many questions to answer.

Third, the researcher does not make clear what he intended to measure with the questionnaire. Finally, it alarms us that Question 6 begins with the phrase “If you have a DMCA agent …” If you run a network and do not have a DMCA agent, that is a problem: you’ve lost “safe harbor” protection under Section 512(c). We applaud Brandeis for having the idea and taking the initiative. This is the sort of data educational institutions should be gathering on their own initiative. Unfortunately, the strength of the idea is diminished by weak execution, leading to meaningless data. Ultimately, this survey cannot say conclusively whether or not colleges are serious about dealing with copyright issues. Categories: Computers; DMCA; Education; Networks; Research.

TorrentFreak. Charity Forced to Pay Copyright Fee So Kids Can Sing Carols. Dec. 9, 2007. “Happy Birthday,” the sequel. We can’t imagine this stuff. Categories: International; Music; Licensing & Permissions.

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