Last week, the Associated Press issued several DMCA takedown notices on a Web site called Workbench, claiming the site had infringed its copyright when it posted ledes and titles from a handful of AP stories. The Associated Press, which is a cooperative owned by more than 1,000 newspapers, which contribute content to the collective and use content from it. I am intimately familiar with the AP and how it works, and think that the cooperative has evolved into an influential, primary news organization because so many newspapers have abandoned original reporting in so many areas due to real or perceived financial pressures.

(Next time you read your local newspaper, take notice of how many stories are wire service stories from AP, Reuters, Agence France Presse, or a similar agency.)

AP’s tactics, however, raise some interesting issues about copyright’s use and applicability in a networked information environment, where virtually every action invokes one of the six exclusive rights.

I address these issues in no particular order.

1. The DMCA Takedown Process: I’ll address both sides of the same coin. The first side is an opinion many hold: “The DMCA takedown process is flawed and must be amended.” The safe harbor provisions under Section 512 allow a “service provider” to avoid infringement liability so long as the “service provider” removes or disables access to the allegedly infringing content upon being served with the takedown notice. As Wendy Seltzer illustrated last year, the takedown provisions do not provide for any assessment of fair use (or any other copyright exception), and provide weak safeguards against abuse. (For example, retailers like WalMart abuse the process every Thanksgiving holiday by issuing takedown notices for holiday sales information that, by any reasonable measure, is factual — and therefore not subject to copyright protection.)

The flip side is equally compelling, yet not quite as popular: “Service providers should not roll over reflexively and accept such DMCA notices without investigation.” Granted, there are costs associated to training staff to handle these notices properly, but those are fixed costs that come with this particular business. An ISP would have to train its staff to handle any sort of legal notice, including a subpoena, so DMCA notification training should not be an issue.

(See Section 512(k)(1) for a definition of “service provider.”)

Further, I see nothing in the takedown procedures that requires any sort of investigation into the paper’s validity or credence, and a strict reading of the statute may prohibit such an investigation … so long as the “service provider” is satisfied simply to comply with the DMCA and punt on any extralegal responsibility it may have to its customers. My reading of this tortuously long statute indicates that it “service providers” are required to expeditiously remove, or disable access to allegedly infringing material in order to qualify for the “safe harbor.” Absent qualifying for the safe harbor, I see nothing that requires “service providers” to expeditiously remove, or disable access to allegedly infringing material.

What is the worst that could happen if a “service provider” decided to question the takedown process, and in the process disqualify itself for the “safe harbor”? It gets sued for copyright infringement? Surely, no person or entity wants to get sued, but is it too much for ISPs to show a little spine on this issue, especially if the spine showing results in bad press for the copyright owners? (Oddly, bad press for the copyright owners may actually help keep the issue out of the courts. And bad press may be the only effective tactic left in stemming the inexorable march toward narrower interpretations of copyright exceptions that don’t require compensation or permission.)

Besides, an ISP recently showed some spine and objected to some of the DMCA’s provisions: Verizon, for example, litigated the DMCA subpoena provisions … and actually won.

2. The Trial Balloon: Once The New York Times got hold of the story, the Associated Press had retreated from its initial, aggressive actions, calling them “heavy-handed.” The implication is that an overzealous legal department ran amuck without consulting the business side of the building.

This is garbage. The AP knew exactly what it was doing, and the legal department had full sanction from (and was in consultation with) the business side of the building. In fact, I’d go so far as to say that AP did not consider their actions to be “heavy-handed” until the Times inquired about this issue. (It is significant that the Times is a cooperative owner of AP, and also has increased its implementation of blogs in the newsroom and on its Web site.)

This is not an accident at all. The AP wanted to see how aggressive it could get, and for how long, before its actions were (a) noticed by business partners (or at least entities or executives it respects), and (b) questioned or criticized by those partners. AP will use this incident (and the reaction) in the future as a barometer for how aggressive it can be in proscribing uses of its content that are not explicitly licensed. Next, what we’ll likely see is a new AP content license that is promoted specifically for bloggers. Part of the market research for such an initiative, however, is occurring now, with this shot across the bow.

The concept of a content license for bloggers is neither new, nor necessarily negative. But that license will be positioned as an insurance policy: buy the license and we won’t sue; but if you don’t buy the license, then we make no guarantees. It is the proverbial Corleonic proposition.

Implicit in the “no guarantee” part of the equation is AP’s behavior in this situation. When this issue arises in the future, the AP’s rationale will be that while there were no (or fewer) licensing options when AP approached Workbench in June 2008, now (whenever that time in the future is) you have options … in the form of the license. The options won’t be “fair use or some other exception,” “fair use or not fair use,” or even “fair use or license,” but instead “license or risk getting sued.”

I think AP is beta testing future business initiatives (and perhaps stalling for time to get its initiatives together) while using allegations of copyright infringement and the hammer of a lawsuit. This is not the first time a large copyright portfolio has done this: I think the RIAA has done this for years, for example. I think the three academic publishers who sued Georgia State University for alleged infringement via electronic reserves are doing exactly the same thing, under the guise of “protecting authors” and maintaining incentives for future authors to publish.

The problem I see with this tactic is that it narrows attempts to render irrelevant any discussion of the bevy of copyright exceptions that are allowed under the law. Muting discussion of exceptions works consistently with promoting licensing as a solution to avoiding copyright infringement. “Don’t worry about copyright; it’s too complicated. Buy the license and be secure in knowing that you (or your organization) are in compliance,” goes the pitch. What the pitch really is saying though, is “Pay for everything without referring to the copyright exceptions that, under certain circumstances, will allow parties to use, access, reproduce, distribute, or remix portions of protected works without having to ask for permission and without having to pay.” That’s not a solution; that’s a surrender.

Dastardly? Perhaps. Cynical? Maybe. Beyond the realm of possibility in an overheated copyright environment? Absolutely not.

3. Fair Use & the Inverted Pyramid: In the same Times story, writer Saul Hansell reported the following:

Even if The A.P. sets standards, bloggers could choose to use more content than its standards permit, and then The A.P. would have to decide whether to take legal action against them. One important legal test of whether an excerpt exceeds fair use is if it causes financial harm to the copyright owner.

“The principal question is whether the excerpt is a substitute for the story, or some established adaptation of the story,” said Timothy Wu, a professor at the Columbia Law School. Mr. Wu said that the case is not clear-cut, but he believes that The A.P. is likely to lose a court case to assert a claim on that issue.

“It’s hard to see how the Drudge Retort ‘first few lines’ is a substitute for the story,” Mr. Wu said.

Associated Press, obviously, thinks differently. In a June 3 letter to Rogers Cadenhead, Workbench’s editor, the news cooperative’s Intellectual Property Governance Coordinator wrote the following:

… you purport that the Drudge Retort’s users reproduce and display AP headlines and leads under a fair use defense. Please note that contrary to your assertion, AP considers that the Drudge Retort users’ use of AP content does not fall within the parameters of fair use. The use is not fair use simply because the work copied happened to be a news article and that the use is of the headline and the first few sentences only. This is a misunderstanding of the doctrine of “fair use.” AP considers taking the headline and lede of a story without a proper license to be an infringement of its copyrights, and additionally constitutes “hot news” misappropriation.

(By the way, isn’t “Intellectual Property Governance Coordinator” a great title? I would have settled for “IP Majordomo,” but Intellectual Property Governance Coordinator sounds magisterial.)

There is a practical problem with Professor Wu’s statement, and it is connected to Associated Press’s interpretation of fair use: journalists write news stories using a technique called the inverted pyramid. In the inverted pyramid form of writing, a news story’s most substantive, important, and informative information appears near the top of the article, while contextual information falls further down into later paragraphs. Essentially, the inverted pyramid form of writing requires news stories to answer the most important questions — who, what, when, where, how (and set the tone for answering “why”) — within the first three paragraphs. In the tightest news writing, a reader should be able to answer the most important questions in the first 3 to 5 sentences, which include the “lede” (or lead).

The rationale behind the technique is quite sensible: it allows readers with little time a way to be informed quickly, particularly if one is scanning the paper. The technique, which has been around and used for centuries, represents a CNN-style of reporting that existed before Ted Turner even was born.

From a legal perspective, though, one could argue reasonably that the inverted pyramid technique, combined with contemporary blogging practices, has an effect on fair use. If you look at the four-plus factor test in Section 107 and compare it to how news writers construct their stories using the inverted pyramid, the first 3 to 5 lines of a news story essentially constitute factors three (”amount and substantiality of the portion used in relation to the copyrighted work as a whole”) and four (”the effect of the use upon the potential market for or value of the copyrighted work”). Said another way, the inverted paragraph form of writing — which includes “the first few lines of a story” that Wu claims could not be a substitute for a story — is a substitute for the story. That what it always has been designed to be. By extension, if online writers are using the first few lines of a news story, and news stories (almost universally) are written in the inverted pyramid format, then online writers that use those lines are substituting for the news story.

Let me take it a step further. If findings for or against fair use are based upon a theory of commercial substitution, then it seems that every use of a news story’s first few lines is, a commercial substitution that finds against fair use. Fair use should not be winnowed down exclusively to commercial substitution, but given Harper & Row v. Nation Enterprises, 471 U.S. 539, 566 (1985) (”[the fourth factor of Section 107] is undoubtedly the single most important element of fair use”) and the fair use’ otherwise vague and inaccessible nature, most folks will use commercial substitution as the clearest guideline in an otherwise foggy doctrine. (This is especially true of copyright portfolio owners, because they can argue that virtually any invocation of the exclusive rights rights is (or may be) a commercial substitution, and therefore, beyond the scope of fair use.)

To be fair, William Patry has called “erroneous” the Harper & Row court’s assertion that the fourth factor is “undoubtedly the single most important factor,” but I do not know of any comparable holding that explicitly overturns that analysis, or any trend that suggests federal courts are no longer relying on it.

For these reasons, I see Associated Press’ actions last week as having long-lasting commercial, political, and journalistic importance.

Update (June 23, 2008): In a Friday, June 20 posting to The New York Times’ Bits blog, writer Saul Hansell reported that Associated Press and Workbench editor Roger Cadenhead “consider the matter closed” as of Thursday, June 19. Hansell’s post links to Cadenhead’s reportage about the dispute’s end. Cadenhead’s post, in turn, discusses AP’s use of tracking technologies from a company called Attributor, a Redwood City, Calif. company that has had AP as a client since May 2007. (Interestingly, Cadenhead notes, Attributor posted a blog earlier this year that advised its clients to send a link request instead of a DMCA takedown notice.)

Cadenhead also notes that AP already offers fee-based services whereby customers pay for headlines and lede paragraphs. (We presume Cadenhead is referring to AP Exchange or AP Digital.)

Additionally, Cadenhead also mentioned the willingness of parties like the Electronic Frontier Foundation and Public Knowledge to assist his legal fight. Since both organizations seem to choose their issues and legal fights with extreme care, it is fair to say both parties were as interested in the potential for positive publicity as the legal issues.

Finally, Hansell’s report surmises what occurred between AP’s issuance takedown notice of the takedown notices, and the apparent detente late last week. In the end, none of the thorny legal issues got resolved and no one seems to want to discuss the key issues on the record. The veil of silence that surrounds the “settlement” reinforces our conviction that AP was using this issue as a trial balloon, both to gauge public opinion and to use as a test case for future business initiatives.

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Jon Stokes. Proposed EU ISP Filtering and Copyright Extension Shot Down. ArsTechnica. Jan. 22, 2008. Just as AT&T begins considering filtering on its network for alleged copyright infringement violations, the European Union decides not to allow it for now on ISP networks in member countries. But as long as intellectual property is seen as an “economic engine” — and who’s not looking for an “economic engine” with this credit crisis upon us — this issue will not go away easily.

(Editor’s Note: Copycense editors originally commented on this article in the Jan. 29, 2008, edition of Copycense Clippings.)

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Nate Anderson. Warner Sues “Playable Search Engine,” Tests DMCA Safe Harbor. ArsTechnica. Jan. 25, 2008. Warner Bros. trots out all the goodies in its 57-page complaint (.pdf) that alleges copyright infringement by search engine SeeqPod. One of the ways in which SeeqPod tries to differentiate itself is by providing links to music or video files that others make available on the Web. (For example, we typed in a search “jay-z” and received about 20 hits, many of which were links to YouTube videos. We were able to watch the YouTube videos within the SeeqPod site instead of having to link out to YouTube to get the content.)

Apparently, SeeqPod compiles search results not only through the work of its own search robot, but also through user-contributed submissions. Warner Bros. has seized on this second aspect to frame SeeqPod as a business that “aims to capitalize on the illegal use of ‘free’ music to grow its user base rapidly and inexpensively,” accusing the search provider of direct infringement, contributory infringement, vicarious infringement. WB also throws in MGM v. Grokster’s inducement liability theory (just for kicks and giggles).

One of the interesting things about this case is SeeqPod’s technology was born in the Lawrence Berkeley National Laboratory; the Lab also has a 5% stake in the spin-off company. So, in essence, Warner Bros. also is suing the federal government. Another interesting tidbit: Anderson notes that Last.fm has a similar search capability, but also has licensing deals in place with the major music labels, while SeeqPod has no licensing deals and seems to rest its business model on the DMCA ISP safe harbor at Section 512(c). We hate to see a promising technology like this get ensnared in litigation so early in its life, but in the unlikely event this goes to trial, this could be an interesting case.

(Editor’s Note: Copycense editors originally commented on this article in the Jan. 29, 2008, edition of Copycense Clippings.)

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Tim Wu. Has AT&T Lost Its Mind? Slate. Jan. 16, 2008. Columbia law professor Wu rhetorically poses the obvious question in response to news that AT&T is considering proposals to filter content, ostensibly to halt alleged copyright infringement. Wu delves more deeply into the “safe harbor” provisions of Section 512 than we did when we first reported this story in last week’s Clippings, and offers some interesting thoughts about why AT&T would even consider such an effort.

(Editor’s Note: Copycense editors originally commented on this article in the Jan. 22, 2008, edition of Copycense Clippings.)

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Bits (The New York Times). AT&T and Other I.S.P.’s May Be Getting Ready to Filter. Jan. 8, 2008. Apparently not content with the “safe harbor” provisions that the Digital Millennium Copyright Act affords (it and other ISPs) pursuant to Section 512(c) of the Copyright Act, the former Ma Bell floats a filtering trial balloon at the Consumer Electronics Show. Comcast already faces scrutiny concerning its alleged filtering of Bittorrent traffic, so it will be interesting to see how this issue plays among Washington regulators who have jurisdiction over communications and trade.

(Editor’s Note: Copycense editors originally commented on this article in the Jan. 15, 2008, edition of Copycense Clippings.)

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Last winter, Northeastern University School of Law professor Wendy Seltzer tested the application, limits, (and to some degree) silliness of the DMCA’s takedown procedure. In early February, she posted on YouTube a 33-second snippet of the NFL’s copyright warning, which she recorded from a Fox television broadcast of the Super Bowl. Seltzer’s snippet ended just as a group of Chicago Bears converged on a kick from Indianapolis Colts place kicker Adam Viniateri to begin the second half of Super Bowl XLI. (Note: Seltzer was a visiting professor at Brooklyn Law School when these events occurred.)

As we have come to know, the NFL filed a DMCA takedown notice with YouTube, alleging Seltzer’s post infringed the League’s copyright. The filing set in motion a series of actions (which Seltzer called “the DMCA dance”) in which the video was alternately removed, replaced, removed again, and replaced again. The Seltzer-NFL battle received coverage in the mainstream media, including in The Wall Street Journal.

Further, Seltzer’s DMCA demonstration likely was the event that led the Computer & Communications Industry Association to launch its “Defend Fair Use” campaign. This campaign includes filing a complaint (.pdf) before the Federal Trade Commission that alleges that copyright warnings from the NFL and Major League Baseball constitute “unfair and deceptive trade practices.”

Fast forward to today, the Friday before NFL’s Week 1. USA Today has published a front page story that outlines the NFL’s attempts to exert tighter control over media footage. The league’s changes include introducing a rule that limits to 45 seconds the amount of footage that news organizations can show on their Web sites.

Of course, the news organizations are all in a tizzy about this, even though one could ask if competition and ratings are so important, why does any station share any footage with another outlet? It seems the sharing arrangement has developed as an industry custom, not as a law. Therefore, the NFL’s move to exercise tighter control over its property arguably is consistent with the nature of commercial competition, even though it’s inconsistent with industry custom.

We think the NFL’s 45-second policy has copyright implications as well, even though it’s anyone’s guess whether the League’s tiff with Professor Seltzer was part of the reason it announced the policy. In short, we see the 45-second rule as NFL’s attempt to codify a “fair use” guideline for media organizations. The current 45-second policy is less time than the previous policy, which allowed “reasonable” posts to new Web sites. The 45-second policy, though, does introduce some level of certainty.

Now, we have a few rhetorical questions for The Ligg (as Tony Kornheiser calls it):

1. Are you willing to allow other members of the public to post 45 seconds of footage to their Web sites? (After all, “fair use” is not limited to news organizations.)
2. Are you willing to allow members of the public to post 45 seconds of footage to any site if such footage reasonably qualifies as “fair use”?
3. What will happen if news organizations post more than 45 seconds of footage? (After all, “fair use” isn’t necessarily limited to 45 seconds.) Will the league issue a DMCA takedown against the news organization’s Web site?
4. By allowing news organizations to post 45 seconds of footage, are you suggesting that the NFL does not recognize that other applications or interpretations of fair use do not exist?
5. Is the NFL’s policy that any online entity, regardless of ownership or purpose, that fails to follow the 45-second rule for news Web sites is subject to a DMCA takedown?

If anyone has NFL press office contacts, Copycense would be interested in sending these questions along to see if we can get some answers.

See also:
Michael McCarthy. NFL’s Bold Steps in News Blur Media Boundaries. USAToday.com. Sept. 7, 2007.

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We have provided a full slate of Clippings before the holiday break, with stories and commentary on a small, middle America music publishing company that effectively has halted musical sampling; the real importance of YouTube; Apple’s response to Zune; legislative wheeling and dealing during Congress’ lame duck session; and the growing problem of a new disease called EDTS (errant DMCA threat syndrome).

Best to you and yours over the Thanksgiving holiday.

Article of the Week

Nolan Strong. Bridgeport Music Files Lawsuit Against Jay-Z Over ‘Justify My Thug.’ AllHipHopNews.com. Nov. 6, 2006. The Sixth Circuit’s 2004 decision in Bridgeport Music v. Dimension Films, in which the court held that the Copyright Act’s fair use clause is inapplicable within the context of music sampling, will continue to have a huge affect on contemporary music for two reasons. (See CopyCense coverage on how this decision halted sales of Notorious B.I.G.’s Ready to Die.) First, the plaintiff music publisher controls the copyright to several integral soul and funk compositions that are popular with the hip hop community. Second, much of hip hop still implements sampled recordings.

Third, contemporary popular music is rooted in (or influenced by) hip hop implements, leading to a higher possibility that a composition will contain samples. Fourth, and finally, the Bridgeport decision is so inconsistent with prevailing fair use constructs from other federal circuits that the Supreme Court may actually decline to hear the appeal on certiorari because most of the other circuits are not as stark in rejecting fair use. The Court typically will hear a case when it determines it is clear there is a wide divergence in opinion in several circuits. If, however, only one of the circuits holds anomalously on a broad concept that has been addressed across the federal court system, the Court is more likely than not to let that anomaly stand.+

Quote of the Week

What makes [YouTube] so revolutionary is that it’s one of those Internet moments where something that used to be hideously difficult — to the extent that you didn’t do it — all at once, almost overnight, became easy. Video just used to be a terrible experience on the Web: files wouldn’t load, or you’d be told you needed software. Or you’d wind up seeing the dreaded word: buffering. And almost overnight, YouTube made that go away. You saw video on Web sites, and you weren’t afraid to click on it. If you were a Web site designer, you weren’t afraid to use it. That was a remarkable change in opening up the promise of video. – Jason Fry, assistant managing editor, The Wall Street Journal Online.

Fry’s comments on NPR’s Talk of the Nation last week echo what he wrote in a Nov. 13 article published in The Wall Street Journal Online. We believe the NPR broadcast (.ram) is superior because it includes an interview with James Boyle, a Duke law professor who also is one of the masterminds behind Tales From the Public Domain: Bound by Law?, the first copyright comic book.

For all the talk about YouTube and the copyright issues at stake, Fry reminds us of why YouTube (and protecting the underlying sharing principle it manifests) is so important. Insightfully, Fry tells host Lynn Neary that the real importance of YouTube’s posting of Saturday Night Live’s “Lazy Sunday” skit was more than a copyright issue: in many ways, it made SNL relevant again to viewers who had abandoned the show. We’d add that this consumer-driven identification of relevance and freshness is stronger than any advertising a content creator could conceive.

Yet, Neary points out the inherent double standard that YouTube’s presence manifests. Content creators can benefit from the audience driven legitimacy a strong showing on YouTube presents, but they also exclusively control when or how to remove that content. We would agree that copyright owners should have primary control over how others use their works, but we also would demand a counterbalance to that control, one which does not seem to be evident in today’s hyperactively protective environment.

Separately, we look askance at Big Content’s intentional exploitation of the double standard. They act like a cop who allows every car to exceed the speed limit by 20 miles per hour, only to arbitrarily choose which driver among dozens will receive a speeding ticket. This sort of selective prosecution not only is inconsistent; it fosters a fundamental distrust of large, corporate content-owning entities. Some of the deep seated distrust consumers have of Big Content — everything from rigged CD prices, to ridiculous concert ticket prices, to computer viruses being marketed under the doublespeak of “digital rights management” — contributes mightily to many consumers’ unwillingness to play by traditional rules.

But there is really no stopping YouTube. For one, it represents a chance — however brief — for consumers to “stick it to the man” by remixing other’s work. Additionally, YouTube has a great technology: it legitimately and greatly simplifies the traditional problems consumers have had with watching video online. Finally, we think people honestly think that they are sharing works they post to YouTube and, in some way, helping to bring to broader light events that others may have missed. (Increasingly, YouTube has been used to document abuse such as police brutality and human rights violations.)

For these and other reasons, we believe it is appropriate that Time Magazine has called YouTube the “Invention of the Year” for 2006. The questions that remain include whether YouTube ever will be allowed to evolve beyond its current position. If not, what we will remain is exemplified by a column written by ESPN’s Bill Simmons. The article, “The YouTube Hall of Fame,” has been rendered irrelevant by links to videos that had been on YouTube, but which have been removed for copyright reasons.

Is this swiss cheese, residual approach to content what people really want?

Things We Missed

Google Blog. Spot On. Oct. 31, 2006. With all the hubub about YouTube and Google, we missed the fact that Google bought JotSpot, the popular wiki software.

CommuniK. Clippings

Ars Technica. Best Buy Tries to Copyright Sales Prices. Nov. 14, 2006. As we approach the Thanksgiving holiday in the States, we also approach that gross cultural abomination called the holiday shopping season. And for about five years now, holiday shopping season has ushered in a new, legal abomination: errant DMCA threat syndrome (”EDTS”). EDTS is a severe, seasonal affective disorder in which major retailers such as Wal-Mart and Best Buy threaten informational Web sites with a DMCA-sanctioned blackout pursuant to Section 512 should those sites publish so-called “Black Friday” sales information before those stores are ready to publish that information. (”Black Friday” is a term the retail industry uses for the Friday after Thanksgiving, which officially begins the holiday shopping season. The term was coined as a play on the financial phrase “in the black,” or profitability.)

Of course, it doesn’t matter that advertising information is clearly factual information, and therefore ineligible for copyright protection. Under the DMCA takedown and safe harbor rules, this critical fact actually is irrelevant. Of course, the defending Web sites could bring legal action, but (a) this costs money many of them do not have to spend, and (b) would do nothing to avoid having their Web sites shut down for the mandatory 10-day period. Conveniently for the retailers, this 10-day period would span the entire Black Friday weekend.

EDTS has become rampant over the last few years, and to date, the only known cure is an amendment to the DMCA (or a judicial decision) that would codify and enforce automatic financial damages against any entity that invoked the takedown procedures for clearly factual information. This has a snowball’s chance in hell of ever happening.

The Patry Copyright Blog. Why UK Scholars Eat Our Lunch. Nov. 14, 2006. William Patry weighs in — rather heavily — on American legal scholarship’s dirty little secret: its system of scholarship is questionable, its peer review process non-existent. Law reviews are managed, operated, edited, and produced by second- and third-year law students, almost none of which have the requisite legal (or writing, or editing) skills to properly challenge, audit, or improve serious legal scholarship. What makes the situation worse, though, is that legal scholarship increasingly is interdisciplinary. For example, we just came upon a new publication, Empirical Legal Studies, which covers the emergence of empirical scholarship in the legal academy. In other words, this group of law professors is seeking to apply social science methodology, both quantitative and qualitative, to the law, resulting in a data rich level of case analysis, content analysis, and statutory analysis. In contrast, many third year law students are ill-equipped to do statutory analysis properly; how, then, would these students be in a position to edit or gauge the quality of an empirical legal study as the editor of a law review? Patry’s post points to a 2004 article by Seventh Circuit judge Richard Posner that more thoroughly analyzes this system.

Clippings

• Greg Sandoval. Movie Studios Sue DVD-to-iPod Service. News.com. Nov. 17, 2006. So, let’s get this straight. You go to your local store (physically or virtually) and you pay full price for Season 6 of The Sopranos. You want to view these discs on your iPod. You’re in a hurry.You ask a commercial service to load the DVD content — the content you’ve already paid for — onto the iPod you’ve bought, also with your own money. And this allegedly is illegal? Electronic Frontier Foundation includes the complaint (.pdf). The organization is 100 percent correct when it says this is copyright gone too far.
• Association for Computing Machinery. Meet the New Boss: Outlook for Technology Policy in the Next Congress. Nov. 16, 2006. ACM’s public policy staff has written a good overview of how a new Congress likely will vote on technology issues. As we discussed last week, a Democratic Congress does not ensure intellectual property fairness.
• Louis E. Frenzel. Digital TV: Issues And Impacts. Electronic Design. Nov. 16, 2006. A good primer on the various issues related to serving digital television, and by extension, the broadcast flag.
• Sean Captain. So Much Music, So Few Choices. The New York Times. Nov. 16, 2006. Little new here for our regular readers, but the article does highlight that some musicians like Sonny Rollins are using the virus-free .mp3 format for online music distribution, and depending using that as an incentive for live performance participation. We’ll also note for the record that The Saxophone Colossus is leveraging YouTube’s technology to help him broadcast some of his live performance videos from his home page.
• Daniel Terdiman. Second Life Faces Threat to Its Virtual Economy. News.com. Nov. 15, 2006. This is affirmation that Second Life is as close to real life as possible. It now has a copyright problem. IPTA Blog adds an interesting perspective to this issue, as does Edward Felten’s Freedom to Tinker.
• Gigi B. Sohn. Still Sticking It to the Consumer. News.com. Nov. 15, 2006. Public Knowledge’s president warns us: beware the lame duck session of Congress. This period virtually rivals no other for the amount of Congressional wheeling and dealing that occurs in our nation’s capital. Ostensibly, this is the time of year when egregiously bad copyright laws miraculously appear on the books with little notice, no debate, and nary a whiff of negotiation. Journalistic integrity obliges us to note that Big Music capo Cary Sherman weighed in on this same issue (we presume News.com intended a mano a mano debate), but Sherman’s take on fair use is predictably narrow, and his lobby’s efforts at “educating” Boy Scouts and primary school children are offensive.
• MacNN. Apple, Airlines Offer iPod Integration. Nov. 14, 2006. And, um, what was the name of Microsoft’s new digital music player?
• Charles Hutzler. Gutierrez Urges China Piracy Crackdown. Boston.com (via The Associated Press). Nov. 14, 2006. Trade agreements are the new copyright legislation. This is significant enough that we will write about this separately, perhaps in an a CommuniK. piece or as an article for one of our print partners.
• Lifelong Learning. Of the Case for Fair Use: Digital Distribution of Course Materials — Market Failure. Nov. 13, 2006. Georgia Harper analyzes the economic calculus courts seem to use to determine the fourth factor in fair use analysis, set against the context of educational uses of protected works.
• Light Reading. BitTorrent Video Store Delayed. Nov. 13, 2006. This illustrates the enormous paradox that is occurring in the content industries. On the one hand, Big Content struggles with its irreversibly broken current business model and, in a state that is panicked, arrogant, stupid, and confused all at once, it does nothing but file lawsuits, hoping this tactic can by it some time to get itself together. Savvy companies who understand the current content environment have provided Big Content with solutions. Apple handed the entire digital music market on a platter. Instead of working with Apple to provide the best customer experience possible, Big Music has its hand out, asking for a larger slice of a pie that had no hand in making. Facing a torrent of lawsuits, which were validated by the Supreme Court’s Grokster decision, BitTorrent pledged to work with Big Content. As a distributive technology, BitTorrent is fantastic. But now the company is flailing because Big Content won’t provide … well, content. And content executives wonder why consumers get exasperated and simply ignore them.
• Richard Siklos. A Struggle Over Dominance and Definition. The New York Times. Nov. 12, 2006. Google’s YouTube purchase reignited debate over whether Google is a media company, or otherwise pushing itself toward being, effectively, the King of All Media. Google makes its money in advertising; media companies understand and operate on advertising as well. Perhaps the two camps are not as far apart as we originally thought.
• BBC News. Public ‘Support Longer Copyright.’ Nov. 12, 2006. Recall the Australian government’s assessment that Big Music’s infringement claims are “epistemologically unreliable”? Until Big Music proves otherwise, we will presume most of its survey findings are “epistemologically unreliable,” calling into question the veracity of this claim.
• Nailchipper. Implications of the Web for Free and Open Source Licenses. Nov. 12, 2006. An interesting thought piece on EULAs within the context of Web-based applications.
• Ars Technica. RIAA Defendant Argues Damages Are Excessive. Nov. 11, 2006. Finally, it seems like a legal team is stepping up to the plate and challenging Big Music on the merits of its spurious claims. We understand the economics of litigation — without cash, you can neither assert your rights nor defend yourself against questionable claims — which is why we’re surprised organizations like Electronic Frontier Foundation have not been a bit more active in protecting some of the public in the most egregious music file sharing cases.
• Gary Shapiro. Tenure Online. The New York Sun. Nov. 3, 2006. Is traditional, stodgy academia prepared to give equal weight to publication in open access journals when faculty get evaluated for tenure? The day is coming where a young faculty member will have nothing except open access citations. According to Issues in Scholarly Communication, that day is sooner than later: UMI (known to doctoral candidates and recipients as the company to which dissertations are sent for microfilm publication) is now offering an open access option for students submitting their theses or dissertations.

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