Morgan Wilson: copyright

ads with air guitarists and the idea / expression of the idea dichotomy

Mon, 11 Aug 2003 06:44:32 GMT

Ads Ape Apple's Air Guitarists. Upstart BuyMusic.com is doing more than just offering a music service that mimics iTunes. Its commercials are strikingly similar to Apple's ads, too. Flattery? Perhaps, but it also could be a lawsuit in the making. By Danit Lidor. [Wired News] [A blog doesn't need a clever name]

"The fair-use doctrine does provide a defense to copyright- and trademark-infringement claims," Crowther said. "The critical issue will be whether the BuyMusic.com is a parody of the Apple ads."
"When the second work just borrows from the first work to get attention or to avoid having to develop something new or fresh and does not make fun of the original work [sigma] it is not a parody and may not have protection," Crowther said.
Parody or not, a copyright-infringement suit wouldn't necessarily be an open-and-shut case. "The dichotomy between 'ideas' and 'expression' is hard to get across," said Blaney Harper, an intellectual property attorney at Jones Day.
"Showing average people air guitaring their way through a song against a white background" is not enough to show BuyMusic is copying Apple's expression, he said.

I haven't seen these ads, but I admit that they would really annoy me. It would seem that BuyMusic is stealing numerous ideas of Apple. But this happens all the time - in business, in art and science. Stealing an idea (unless it's patented) is different from violating intellectual property rights. This is a really good thing - even if it is infuriating to see BuyMusic use this legal point to peddle its lame Windows knock-off of the iTunes Music Store. It's corny, but the law is meant to be blind, (if people stay within its bounds) it protects the good and the bad, the creative and the exploiters. To change the law to stop the "bad" BuyMusic would be opening the possibility of flooding more of the "good" public domain under a torrent of copyright claims. It could shut down or severely damage the blogosphere. The idea / expression of idea dichtomy is being undermined enough already by contract law, without this happening. So what can be done? Protest this protected form of idea theft in non-legal ways. Try to shame BuyMusic into changing its behaviour.

Music (legally downloaded from iTunes): Moby, 18, I'm not worried at all

metaphor watch: exploded content

Wed, 18 Jun 2003 04:01:23 GMT

firstmonday on eldred. ... In my view, reclaiming it would make it relevant. Exploding the content within the public domain in a context where it can be built upon and spread (ie, now, with the internet) will make people see again why the public domain is important. And if they see that, then they will again defend it. ... [Lessig Blog]

musings about Content

Mon, 09 Jun 2003 16:21:38 GMT

I was thinking of adding something like "a radical law librarian's perspective" at the end of the description, but decided against it, because I didn't like the idea of my description being 3 lines long.

I was also toying with the idea of capitalizing the word Content or putting the word in quotation marks because I find it deeply ironic the way that all of the important things on the web have been reduced to being just one form of content or another. Sometimes I get the impression that some techie people think that one sort of content is interchangeable with any other sort of content. Of course, in a way this is true, but this attitude defeats the whole idea of content in the first place. The whole point is that words, images, sounds etc have context, and are not interchangeable! Also it leads to travesties like the Digital Millennium Copyright Act, which side-steps the crucial idea/expression of idea distinction by declaring everything to be digital media.

Anyway, I didn't do this because a capital letter would have stood out like a sore thumb and some people think the ironic use of quotation marks to be pretentious - or something which Dr Evil likes to do :) Not that I really care if somebody thinks I'm pretentious - that's her/his problem - but I am aware that quotation marks lose their effectiveness if they're used too frequently.

contact your Representatives and Senators about the Public Domain Enhancement Act

Wed, 04 Jun 2003 12:54:29 GMT

reclaiming the public domain. We have launched a petition to build support for the Public Domain Enhancement Act. That act would require American copyright holders to pay $1 fifty years after a work was published. If they pay the $1, the copyright continues. If they don't, the work passes into the public domain. Historical estimates would suggest 98% of works would pass into the pubilc domain after 50 years. The Act would do a great deal to reclaim a public domain. This proposal has received a great deal of support. It is now facing some important lobbyists' opposition. We need a public way to begin to demonstrate who the lobbyists don't speak for. This is the first step. If you are an ally in at least this cause, please sign the petition. Please blog it, please email it, please spam it, please buy billboards about it -- please do whatever you can. And most importantly, please help us explain its importance. There is a chance to do something significant here. But it will take a clearer, simpler voice than mine. [Lessig Blog]

the iTunes Music Store is what I've been waiting for, mostly

Wed, 30 Apr 2003 14:30:17 GMT

Louis Louis.

Forbes' Arik Hesseldahl ("Apple Tunes Up"):

[A]fter a short tryout and a tad of obligatory skepticism, we can honestly say we're impressed. The iTunes Music Store, an online music download service that is integrated into Apple's iTunes 4 digital jukebox software, is enormously easy to use and dangerously addictive.

On the user-friendliness front, I can observationally add it was far easier for my Dad to set himself up than it can be for him to edit a Word document. He was thrilled to find plenty of Louis Prima.

[Bag and Baggage]

I must confess that for all my criticisms of the RIAA and its attempts to stifle technologies which do not fit into its outdated business model, I have never used Napster, Kazaa, Morpheus, Grokster or any other file trading services. There are a few reasons. Lack of bandwidth for one (not an issue now thanks to my new EarthLink dsl connection at home). Also I have vague fears of viruses or adware that might hijack or embed itself in my computer. Finally, although I oppose the RIAA's rhetoric that brands all online music consumers as thieves, my own moral compass has cautioned patience, to wait until there is a legal and safe alternative.

Well, I'm glad that I'm a Mac user and that some very cool software is available for us (and that the Windows world will have to wait for months for an alternative! *gloat*). Maybe it's because I've never looked at the other services that I'm so impressed with the iTunes Music Store. It's a fabulous time-waster for one thing. I spent at least an hour browsing through their catalogue, just listening to the free 30 second streaming samples which they provide for each song. Some of these are daggy songs from my childhood & teens which I haven't heard for years, which I'd never think of buying - although at 99 cents a song, I guess that I could. It is dangerously easy to buy music on iTunes. Once you've given them a credit card number, it's all "one-click" purchasing. Before I knew it I had bought 5 songs. I am yet to test the features of transferring the purchased songs to other computers (up to 2 others) or burning the songs to a CD (up to 10 times), so I can't comment on how the DRM works in practice. The catalog is extensive enough to keep me busy & poor. It does have gaps in its content. For example, I noticed that a few prominent artists are missing (the Beatles & Madonna). Also, most of the catalog is mainstream in that the artists are somehow connected with a major record label. There's no reason why local and more independent artists (such as Australian alternative bands) couldn't appear on iTunes - or is there? Finally, the coverage is often incomplete for the artists which are on the catalog. For example, the only Crowded House albums on the catalogue are Woodface and the self-titled album. Also, not necessarily all the songs in an album will be on the catalogue - such as only 2 songs of Crowded House's self-titled album are included. None of this is very surprising or intimidating - as a law librarian, I'm very used to dealing "selected coverage" issues with electronic journals. Just because the library supposedly has access to an electronic version of a journal - it doesn't mean that the particular article which I'm looking for will be covered.

You can find music by browsing through their catalogue or using their search engine. The search engine works well, especially if you're looking for something specific. One drawback with browsing is that you might not have the same definitions of "alternative", "pop" and "rock" as iTunes' catalogers. On the other hand, browsing gives you the chance to serenditously find music which you've long forgotten about.

On the whole, I am very impressed with the iTunes Music Store. It's easy, legal and cheap - at least in my opinion. Most importantly, it seems to work. I'm sure that as it gets more established, it will improve in coverage and other functionality.

By the way, there is a very interesting article about this in Salon - to read it you need to subscribe or watch an ad to get a daily pass.

copy-protected CDs designed to have a lower sound quality when played on a computer

Tue, 15 Apr 2003 04:03:15 GMT

Copy-control CD complaint:Qld businessman complains to ACCC about EMI's copy-control discs, by SamVarghese, Sydney Morning Herald.

The complaint by Tom Dullemond, who runs a small company in Gladstone that sells software for writers, is based on the fact that these discs, when played on Windows and Apple PCs, do not produce the high quality CD sound one might expect from what looks like a music CD.

Dullemond, who has like many others had his email bounced when writing to EMI, said the discs stated (in tiny print) that they would only play on audio CD players and the Windows/Apple operating systems.

Due to this, complaints from people who were unable to play these discs in PC CD-Roms or any CD-drive that strictly adheres to the redbook specs for CDs (audio-CD players can play copy-control discs because they are more error-prone; DVD drives or other high-precision CD drives will most likely not play the new discs) could not be followed up, Dullemond said.

My complaint, however, stemmed from the fact (confirmed by EMI) that CC (copy-control) discs when played in Windows and Apple PCs do not play the high quality CD sound one might expect from what looks like a music CD. They play back a low bitrate compressed .WMV file in a proprietary software audio player, he said.

Dullemond, who lodged his complaint in early March, said he received a call from the ACCC soon after.

The ACCC lady who spoke to me conceded that not disclosing this information to consumers (I had to do some serious internet digging and EMI tooth-pulling to find this out) could be pursued by the ACCC. After all, a consumer is told the CD they buy can't be copied - they're not told that the CD plays back low quality sound on computer systems.

The ACCC refused to confirm that any complaint had been lodged.

[A blog doesn't need a clever name]

what happens when the US government can seize any .com domain name?

Fri, 28 Feb 2003 02:47:29 GMT

In Web disputes, U.S. law rules the world, by Michael Geist, in the Toronto Star. ... [A blog doesn't need a clever name]

The [Anticybersquatting Consumer Protection Act] statute, which applies to dot-com, dot-net, and dot-org domains, reaches that conclusion by referring to the fact that the domain name system's root server, the database that houses all domain names and their corresponding numeric addresses, is located in Virginia. The use of the in rem jurisdictional provision is a classic example of legislating outside national borders. For example, the provision surfaced in 2000 in a dispute between two Canadian parties over the technodome.com domain name. Although the trademark holder could have launched a trademark infringement action in Canada, where the courts have addressed cybersquatting issues on several occasions, it chose instead to launch an ACPA action in Virginia where it successfully invoked the in rem jurisdiction clause by suing the domain name, rather than its owner.

So it looks that at least for disputes concerning most important domains, all roads lead to Virginia and US law will apply. This is still going to be a contentious area. I remember how outraged people were that the High Court of Australia dared to assume jurisdiction in the Dow Jones v. Gutnick case - and dared to reach a different outcome than an American court would have. But that tussle over jurisdiction is miniscule compared with what could happen. This week the news has come out that the US Government has seized domain names for non-cybersquatting purposes. The Department of Justice has seized the isonews.com domain because of the Digital Millennium Copyright Act. The site sold mod chips and was a forum for people wanting to play bootlegged console games. In related news the DEA took over sites that sold drug paraphenalia.

So what do you get when ultimate power of domain names rests in the US, and a US government that is willing & able to use this power to advance its political agenda? This could be very messy indeed. If the DEA could seize a domain in the name of the war on drugs, imagine what could be done in the name of the war on terrorism or the war on Iraq? If the PATRIOT Act and PATRIOT Act 2 are any examples, I don't think that the US Government is interested in being restrained with this power.

creative commons licenses

Mon, 24 Feb 2003 06:14:49 GMT

Questions about Creative Commons licensing. Tim Hadley has a good post, which he is going to keep updating, on legal issues regarding use of the Creative Commons license. [Ernie the Attorney]

copyright protection and economics

Mon, 24 Feb 2003 06:08:29 GMT

Does Copyright Protection Make Economic Sense?. According to this Brookings Instititute paper, the answer is no.... [bIPlog]

article in Searcher about the digitial divide in legal research

Fri, 14 Feb 2003 06:00:26 GMT

Slashdot has reported (& discussed in typical Slashdot style) an article in Searcher magazine by Melissa Bar called "Democracy in the Dark: Public Access Restrictions from Westlaw and LexisNexis." It is a very interesting and well-written article that highlights the important issue of public access to the law.

In my biased opinion, this article has one major flaw, which is that it seems to totally ignore the role of law libraries - particularly academic law libraries and court libraries. I can only speak for the academic law library where I work. Although we mainly exist to serve our students, faculty and alumni, we never turn anyone from the public away who needs help with legal research. We are trained to help people find what they want or need without crossing over into the area of unauthorized practice of law. At the risk of blowing the profession's own horn too much, I say that the the assistance of a good law librarian - who is armed with a standard collection of printed materials and the resources available on the "free web", including the Legal Information Institute, West's FindLaw and LexisOne - will usually do a much better job for the pro se patron than free access to LexisNexis or Westlaw. The printed sources aren't all bad. They are very strong with the older materials, which Ms. Barr uses as an example, and they make it more difficult to fall into the full-text infoglut trap - where the few pearls are hidden in a tonne of garbage.

Law libraries should do a better job of communicating all this to public libraries. I know that some of the professional associations, including the Minnesota Association of Law Libraries are already doing some work in this area.

None of this is to say that I don't have my issues with LexisNexis or Westlaw - or think that they're perfect, altruistic companies. But now there are more free electronic alternatives (or cheap ones, like VersusLaw) available for legal research. They don't have the all the fancy bells & whistles of Westlaw or Lexis, but they still offer the public access to primary legal materials that would have seemed unthinkable 15 years ago.

contrast this with Jack "Fair Use is not a Law" Valenti

Tue, 11 Feb 2003 05:41:40 GMT

ALA on Fair Use. Fair use is an important element in maintaining the balance that current law embodies and that ALA has always sought... [LibraryPlanet.com]

yes, please

Tue, 28 Jan 2003 01:07:58 GMT

Eric Eldred Act. Lawrence Lessig is proposing the Eric Eldred Act, which would require copyright holders to perform an action to preserve copyright... [LibraryPlanet.com]

language in the copyright debate

Tue, 28 Jan 2003 01:01:32 GMT

Choose Your Metaphors Well. Doc Searls on Eldred talks about different conceptual views of the copyright battle --legal, political and metaphorical. The last is most interesting: "Watch the language. While the one side talks about licenses with verbs like copy, distribute, play, share and perform, the other side talks about rights with verbs like own, protect, safeguard, protect, secure, authorize, buy, sell, infringe, pirate, infringe, and steal." Searls thinks that if the side on the commons wants to change... [bIPlog]

linking

Tue, 28 Jan 2003 00:59:38 GMT

A Sensible Con Argument in the Linking Debate?. If you place an unprotected resource on the web, others should be free to link to it. This notion is so fundamental to the web that the digerati were completely flabbergasted when some groups and corporations had the audacity to suggest otherwise. If you don't want a resource linked to on the web, don't put it on your web server. If you need to have the resource on the web, but don't want to the... [bIPlog]

Wondering about the DMCRA

Tue, 31 Dec 2002 06:48:09 GMT

Recently I was reminded (not in the blogosphere, but by a library trade group publication) of the existence of the DMCRA [links to a pdf version of the Bill]. This is a most modest Bill which seeks to curb the two most outrageous excesses of the DMCRA's evil twin, the DMCA. It promises to tone down the anti-circumvention provision by allowing circumvention of protected devices which don't result in copyright infringement - i.e. for fair use purposes. Secondly, it requires copy-protected CDs to have labelling stating that the product mightn't play in all devices which play ordinary CDs, that it may not recordable. There are a few other stipulations such as displaying system requirements for the usage of the product and return policies.

It will interesting to see if anything becomes of this in 2003. Of course this Bill goes nowhere near as far as a radical law librarian like me would want - I use "radical" in the descriptive sense, meaning that I want a fundamental overhaul of copyright law (which will never happen in Washington D.C. or Brussels). But this Bill is certainly better than a poke in the eye with a sharp stick.

The paranoid side of me wonders if this is just a bone that information consumers are being thrown. Copyright owners converted ten acres of the old analog commons to gated digital intellectual property, then Congress realizes things have gone too far, so they give back one acre to the commons. And so justice is restored!

Don't get me wrong, this law will ameloriate the nasty razor-wire cutting edge of copyright that would adversely affect many people. Congressmen Boucher & Doolittle are to applauded (& supported) for their work.

can public comment tame the DMCA? what hope for the DMCRA?

Tue, 24 Dec 2002 04:29:19 GMT

Critics Weigh In on Copyright Act. The U.S. Copyright Office asked for public comment on the Digital Millennium Copyright Act, and it got it. Critics worry about everything from losing great art to restricting blind people's access to information. By Joanna Glasner. [Wired News] [A blog doesn't need a clever name]