With disappointing repetitiveness, I stumble across some bozo up in arms over some company that’s attempting to “steal your copyright.” These are usually in a lather because they’ve actually read the Terms of Service for [insert web-based application here] and noticed language that looks something like this:
“the submitting user grants [company] the royalty-free, perpetual, irrevocable, non-exclusive, transferable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, and display such Content (in whole or part) worldwide and/or to incorporate it in other works in any form, media, or technology now known or later developed, all subject to the terms of any applicable license.”
A good example is this comment on the Slashdot story last week about Adobe launching an online version of Photoshop Express. I’ve had to deal with these kind of complaints for the web properties I’m responsible for, but my annoyance is nothing new. The first time I remember coming across complaints about these kind of terms is almost a decade ago when Yahoo! took over Geocities. It annoyed me even back then when I was just a humble ed tech trainer, not a product manager responsible for honest-to-goodness web applications.
Although I am not a lawyer and you definitely shouldn’t take legal advice from me, let me explain to you what the heck is going on here: it’s called the Internet.
Intellectual Property, Technology & Internet
The Washington Post got the message (if not from me, then from other sources with a wider audience), and published a correction to Marc Fisher’s inaccurate story on Atlantic v. Howell. The correction reads:
A Dec. 30 Style & Arts column incorrectly said that the
recording industry “maintains that it is illegal for someone who has
legally purchased a CD to transfer that music into his computer.” In a
copyright-infringement lawsuit, the industry’s lawyer argued that the
actions of an Arizona man, the defendant, were illegal because the songs were located in a
“shared folder” on his computer for distribution on a peer-to-peer
At least they corrected it. But it reminds me that the standard print newspaper practice of burying corrections someplace deep in the paper (and, in the case, website) is as atrocious as it has always been. Corrections, especially for regular columns, should run in the same space that the original ran and run above the lede, not at the bottom of the column.
If I had any doubt that my interpretation of the RIAA’s Atlantic v. Howell brief and the Washington Post’s lousy reporting on the case was dead on, those have been washed away by William Patry, current Senior Copyright Counsel at Google and former copyright counsel to the House of Representatives Committee on the Judiciary. Patry also pretty much wrote the book on copyright, the “book” being a 7-volume, 5500-page treatise on copyright with a foreword by former Supreme Court Justice, Sandra Day O’Connor.
On The Patry Copyright Blog, he writes:
On page 15 of the brief, we find the flashpoint:
“Once Defendant converted Plaintiffs’ recordings into the compressed
.mp3 format AND they are in his shared folder, they are no longer the
authorized copies distributed by Plaintiffs.” I have capitalized the word “and” because it is here that the RIAA is making the point that placing the mp3 files into the share folder is what makes the copy unauthorized. The RIAA
is not saying that the mere format copying of a CD to an mp3 file that
resides only on one’s hard drive and is never shared is infringement.
This is a huge distinction and is surprising the Post didn’t understand
Pretty much spot on the argument I was making. Vindicated! :-)
Yesterday, Marc Fisher of the Washington Post wrote a piece entiled “Download Uproar: Record Industry Goes After Personal Use.” (Free registration might be required to view.)
One of my favorite bloggers, Daring Fireball’s Jon Gruber, referenced this briefly yesterday. I’ve seen this crop up on lots of other blogs and various media outlets, and the story is always presented in basically the way that Fisher presented it:
[I]n an unusual case in which an Arizona recipient of an RIAA letter has fought back in court rather than write a check to avoid hefty legal fees, the industry is taking its argument against music sharing one step further: In legal documents in its federal case against Jeffrey Howell, a Scottsdale, Ariz., man who kept a collection of about 2,000 music recordings on his personal computer, the industry maintains that it is illegal for someone who has legally purchased a CD to transfer that music into his computer.
The industry’s lawyer in the case, Ira Schwartz, argues in a brief filed earlier this month that the MP3 files Howell made on his computer from legally bought CDs are “unauthorized copies” of copyrighted recordings.
The problem is that’s not what the brief says at all.
From Rolling Stone, comes this article, “Clear Channel Limits Live CDs:”
In the past few years, fans leaving some concerts have discovered a souvenir far better than a T-shirt: a live recording of the show they just attended. Bands including the Allman Brothers, moe. and Billy Idol have sold instant concert discs, and the Pixies and the Doors plan to launch similar programs this summer. The recording-and-burning company DiscLive estimated on April 12th that it would gross $500,000 selling live discs this spring alone.
But in a move expected to severely limit the industry, Clear Channel Entertainment has bought the patent from the technology’s inventors and now claims to own the exclusive right to sell concert CDs after shows. The company, which is the biggest concert promoter in the world, says the patent covers its 130 venues along with every other venue in the country.
Gah! Clear Channel, not file-sharing, should be held responsible for declining audio CD sales because they’re radio division is almost singlehandedly responsible for the lack of diverse programming on commercial radio. This move by their concert promotion division only confirms my low opinion of them.
Interesting essay/blog entry (is it an essay? is it a blog entry? who cares — ridiculous distinction, anyway!) on the Free Culture AudioBook Project.
The Tech, an MIT newspaper, has published an interview with Jack Valenti, CEO of the Motion Picture Association of America (MPAA). Valenti comes off as uninformed about the nuances of the copyright debates and seems only capable of speaking about the issues in soundbites that feel, to me, a bit pre-programmed — like this is going to be his response to any question regarding copyright, no matter the nuance. I imagine his PR flack reminding him before the interview, “Stay on message, Jack!”
It’s all the more apparent because I’m about halfway through Free Culture, by Larry Lessig, which you can purchase in the bookstore or download for free. In a testament to Lessig’s point, I read a couple chapters in PDF format, then bounced over to Amazon to purchase the physical object for more efficient and comfortable Metro and coffee-shop reading.
Anyway, Lessig, the anti-Valenti (or maybe the Valenti antidote, we can hope), presented both sides of the issue in a comprehensive, nuanced, and not-so-propagandic way. Highly recommended reading.
More so I don’t forget these links than for you, dear readers:
Yesterday, Robert Scoble, who works for Microsoft, wrote a long entry (choosing a media player. Scoble’s basic point is if you plan to buy DRM-protected music online, you should buy a media player powered by Windows Media software instead of an Apple iPod because it’s likely there will be more Windows Media powered devices (e.g. moving the DRM-protected song from your media player to a car stereo) than there will be Apple devices.
Scoble’s logic — or lack thereof — was so brain-spinningly ass-backwards that when I began to write about it yesterday, I got so frustrated I gave up. Glad I did, because today Cory Doctorow managed to explain the flaws in Scoble’s argument better than I could have:
In this world where we have consumer choices to make, Scoble argues that our best buy is to pick the lock-in company that will have the largest number of licensees.
That’s just about the worst choice you can make.
If I’m going to protect my investment in digital music, my best choice is clearly to invest in buying music in a format that anyone can make a player for.
Ray Kurzweil, a well-known inventor, has received a patent (NY Times, free registration required) for software that creates poetry by reading poems, learning the style of the poet, and imitating it.
It’s probably a bit more complex than that, and the results are likely underwhelming as poetry (the example in the article certainly is), but what I’m more interested in the potential impact of providing a software patent (which are dodgy patents anyway) on the computerization of common artistic practices.
Can the patent holders litigate against human students of poetics for patent infringement if those students create poems by reading and imitating the style of existing poets?!? Think of the repercussions on graduate creative writing programs!
Books, Writing & Literature, Intellectual Property
A good introduction to the FCC’s broadcast flag ruling on Slate:
Broadcast-flag technology works like this: Digital TV signals that are broadcast over the air, rather than transmitted via cable or satellite, will include an invisible data tag — the broadcast flag — along with the picture and sound. By FCC fiat, any digital TV tuner built after July 1, 2005, must refuse to allow broadcast-flagged programs to be recorded in such a way that they can be redistributed in their high-definition format. You’ll be able to record Letterman tonight and watch him tomorrow but you won’t be able to e-mail a copy to your friends.
Link via Scripting News.