Denise Howell is a seasoned appellate and intellectual property litigator based in Los Angeles. Denise writes one of the first and most popular law-related blogs, Bag and Baggage, coined the term "blawg" and helped pioneer podcasting for lawyers. Microcontent obsessed since 2001, she is frequently quoted in the media on legal issues involving intellectual property and technology law. "Sound Policy" is Denise's show at IT Conversations, and it's also what she hopes results from the briefs she submits to court. Email Denise at dhowell@gmail.com.
Dennis Kennedy is a computer lawyer and legal technology expert based in St. Louis, Missouri. An award-winning author, a frequent speaker and a widely-read blogger, he has more than 300 publications on legal, technology and Internet topics, many of which are collected in his e-books. Dennis has been described as someone who knows almost every rock song in existence and, more importantly, how they apply to technology and law. Email Dennis at his gmail address.
Tom Mighell is Senior Counsel and Litigation Technology Support Coordinator at Cowles & Thompson in Dallas. He has published the Internet Legal Research Weekly newsletter since 2000 and blogged about the Internet and legal technology at Inter Alia since August of 2002. With Tom's singing, Ernie on guitar and Dennis' encylopedic knowledge of rock music, we may have the beginnings of a good band, if this whole blog thing doesn't work out. Email Tom at tmighell@swbell.net.
Marty Schwimmer left a partnership in the largest trademark practice in the world and founded Schwimmer Mitchell, a full-service IP micro-boutique in Westchester County, New York, where he represents owners of famous and not yet famous trademarks. He founded The Trademark Blog, the first IP law blog and the one with the most pictures. He is the first to come in and the last to leave in his firm. Email Marty at marty@schwimmerlegal.com.
Ernest Svenson practices law with a mid-sized law firm in New Orleans, specializing in business-related lawsuits. Most of his practice takes place in federal court, especially the Eastern District. He is best known for his weblog Ernie the Attorney, which he started as an experiment. Like many experiments it got out of control. Nevertheless, he continues to practice law and, occasionally,
to seek enlightenment. Email Ernest at esvenson@gmail.com.
About this blog
Between Lawyers provides just-in-time group commentary on the issues
raised when technology, culture and the law intersect. We take you
behind the firewalls and conference room doors to show you how
experienced lawyers deal with these issues and help you prepare for
the new challenges we all face. For more, see our introductory post.
So — what should Nixon Peabody have done when its embarrassing firm non-theme song made its inevitable way onto the Web? (And into the atmosphere of countless homes and offices, as its hapless victims hum and mutter it against their will and better judgment?)
If they'd have asked me (or perhaps 95% of the over 1,000 people who have voted in the Volokh Conspiracy poll), I'd have told them the last thing they should be doing is invoking the DMCA. Instead I'd have recommended:
applying an appropriately liberal Creative Commons license,
holding a mashup contest, and
showcasing the winner and the top 9 runners up on the firm's home page.
The other side of the professional blogging coin is looking at the business ramification of making money with your blogging. This session will cover the things to consider and that you may regret if you wait to long to address: copyright protection, tax ramifications, managing personal vs. paid-for blogging, your site policies, and blogging ethics.
Here are my top ten legal issues pertinent to this discussion; what are yours?
1. Communications policies (your own, or someone else's which may apply)
2. Intellectual property (your own and third parties')
3. Indirect liability for third party acts
4. Civility
5. Ethics
6. Privacy
7. E-commerce
8. Data ownership, responsibilities
9. Minors
10. Special considerations for regulated businesses/industries
Defining community and loosely-joined individuals and interest groups
Community goals and governance (or lack thereof)
External innovation communities such as Procter & Gamble's and ownership issues
Intellectual and liability concerns for company-owned or associated communities
Whether an initiative similar to the Creative Commons movement has or is in the process of emerging
Ownership issues and risk-minimization around products or services that emerge from external ideas
Variations on open source licenses
Individual rights and protections for community contributors and participants
Anonymity and accountability
Nefarious community exploitation: gaming, hacking, spamming
Trust and reputation management
The use of trademark law to use and manage community involvement; selective enforcement, the expansion of certification marks
Insurance industry mechanisms and models
Defamation
Company-sponsored (and owned) communities, and the actions taken by participants who find the terms and conditions of such initiatives too draconian
"Innovator's dilemma" management and patent strategy and the tension between old, successful products and those developed with help from outsourced customer communities
Our rescheduled conference call in anticipation of Community 2.0 (details here) takes place today at 1:00 p.m. PST/3:00 p.m. EST. Call-in details are here, please join us if you are interested.
In connection with our session at the the upcoming Community 2.0 conference, law professor Mike Madison and I will be hosting a public conference call on Monday, February 26 beginning at 1:00 p.m. PST, and we'd love your participation to help us hone in on the ownership considerations (IP; attention; identity), and issues of governance and liability, most critical to the creation, maintenance, and long-term health of business communities. The call will be recorded and made available as a podcast from The Future of Communities blog. You can join us as follows:
From Skype: +990008275785861
From a regular phone (long distance costs apply): US: 1-605-475-8590
In Europe, call: Germany 01805 00 7620 UK 0870 738 0763
[Update, Monday 2/26 @ 1:15 p.m.:] Unfortunately, we had problems with the conferencing service lined up to support this, so are having to reschedule. I'll post the new date, time, and call-in details once they're available, sorry for the delay.
The United States Copyright Code (Rappable Rhyming Version)
U.S. statutes often lack any rhythm and meter, making them difficult to read, let alone understand or memorize. Yehuda Berlinger's The United States Copyright Code, in Verse addresses the problem and might give you an enjoyable way to learn about the basics of copyright law.
A little caveat, however:
You can do a lot worse
than learning copyright by verse,
but please be sure to think twice
before acting without a lawyer's advice
Gawker, re posting (and substituting) thumbnails of Shiloh Nouvel Jolie-Pitt to illustrate coverage of how "exclusive" magazine photos had leaked to the Web: "[W]e can’t even keep track of what we are and aren’t allowed to do anymore." (The Gawker "Legal" tag is worth following.)
Our co-blogger Dennis Kennedy is quoted today in the New York Times: Interns? No Bloggers Need Apply. Dennis' interesting, and I'm sure far more nuanced, discussion with reporter Anna Bahney was distilled down to a truth about modern attitudes toward personal values and employment — "It's like, 'This is who I am. Consequences are what they are. I'll go work for someone who doesn't have a problem with it.'" Just as she missed the chance to round out her piece with more of Dennis' well-considered insights on this topic, the reporter missed the opportunity to tell the more accurate, important, and complicated story. Specifically, Ms. Bahney took the approach that the issue of individuals, their blogs, and their employers, is one of youth culture vs. Killjoy Lawyer III and co. E.g.:
[T]he line between what is public and what is private is increasingly fuzzy for young people comfortable with broadcasting nearly every aspect of their lives on the Web, posting pictures of their grandmother at graduation next to one of them eating whipped cream off a woman's belly. For them, shifting from a like-minded audience of peers to an intergenerational, hierarchical workplace can be jarring.
(Emphasis added.) While I appreciate the clever juxtaposition, and the point that there undeniably is a generation gap between the online mores of under-thirty-somethings and their elders, to suggest that boundary blurring of this sort is an issue unique to the young is to ignore at least the last six years of Web-enabled communications. And to note almost in passing that "some bloggers" say "[a] blog and a job don't necessarily have to clash," is to ignore at least three years worth (and counting) of seismic shift in corporate attitudes toward communications with the outside world. Yes, it's a slow change. But to suggest the change isn't happening — "No Bloggers Need Apply" — misses the boat, and here, I fear, resulted in an alarmist headline and a story that attempted to paint the varied picture of today's business attitudes and relationships with a two-color palette.
In one of our occasional posts on what goes on behind the scenes at Between Lawyers in which we open the door on how lawyers really discuss legal issues of the day, here's the very learned discussion that ensued:
Dennis (note that Dennis did not realize that Denise had already posted on this topic):"Here's an interesting list on IP extremes [from Mother Jones mag], but when you read the blurb about John Cage below, it makes you wonder whether Marty might have been the lawyer in the case."
The blurb: "FOR INCLUDING a 60-second piece of silence on their album, the Planets were threatened with a lawsuit by the estate of composer John Cage, which said they’d ripped off his silent work 4’33”. The Planets countered that the estate failed to specify which 60 of the 273 seconds in Cage’s piece had been pilfered."
Marty: "I've never heard one of Cage's actual pieces. Are they 'dead air' or is the point that you hear the ambient noises (musicians sitting quietly)?"
Dennis: "Well, 4'33" is an anomalous work in Cage's canon - an intellectual witticism and a response of sorts to critics who thought his music was so darn weird. The answer to your question on the piece is, therefore, "yes." The intention of the silence would be to force you to reconsider what music, sound, silence and performance really are - a riff on Magritte's "Ceci n'est pas une Pipe" painting. It's kind of one trick pony, though, because you can only do something like that once. In its context, then, the lawyer's response to the lawsuit is the perfect artistic response and, in my mind, perhaps the artistic zenith of the legal profession in the last however many hundreds of years. Another contemporary analogy, of course, would be Lou Reed's Metal Machine Music. Excuse me, while I go crank that up and meditate on these artistic thoughts. Just my two cents."
Marty: "I guess my question really was, how did Cage's lawyers know that it was Cage's silence at all? Agreed that it is a truly great response."
Denise: (who noticed that neither Dennis nor Marty had been aware of her post on the topic) "Given that I blogged the Mother Jones List on BL, PLEASE blog at least some of the delightful context set forth in these emails there as well. (And don't be callin' ME no one trick pony, because there obviously are no limits to how many times I can persuasively urge you/all to "blog it.")"
But whose? "YouTube co-founder Chad Hurley says in some cases, the same company is both uploading video and ordering YouTube to take it down. 'There's been a few examples of marketing departments uploading content directly to the site, while on the other side of the company their attorney is demanding we remove this content.'" From Cory Bergman, via Boing Boing.
Danny Sullivan has this thorough and link rich post describing Google's new program that enables its Book Search partners to sell works online. (Note the messages in BOLD CAPS, and read all the links.)
Fred von Lohmann's fascinating post on EFF Deep Links called "RIAA Says Ripping CDs to Your iPod is NOT Fair Use" suggests that the RIAA's aggressive policy on how NOT to make friends and influence people continues unabated.
The money quote:
So your ability to continue to make copies of your own CDs on your own iPod is entirely a matter of [the RIAA's] sufferance.
Although it was predictable that the RIAA would take this position, it's still sad to see that they want to go down this road. Wouldn't it make more sense to do things that help people enjoy music rather than to try to exact a tribute payment for each way people normally use music?
Though I think there's the possibility an implied license argument could prevail in the right case(s) involving syndicated material, I don't for a second think it would fly in circumstances where the feed is automatically provided by a third party host, and it communicates applicable Creative Commons license commercial use restrictions. See (or more accurately, listen to) Adam Curry'sDaily Source Code #320. What do you think?
Shelley "Burningbird" Powers in her post called "That Old Copyright Song" is asking all the right questions about how full text RSS feeds may be "repurposed" by other sites and whether and to what extent the copyright rules limit this usage or even apply in this context.
I noticed that Denise Howell, among others has added some comments to Shelley's post (and posted about the issue on Bag & Baggage).
I encourage our intellectual property lawyer audience to consider participating in the conversation in Shelley's comments section.
I've been intrigued by these questions, for which I have not found good answers, since I first saw my full text posts appearing on pages at Bloglines in a way that someone could have easily considered to have been my actual blog.
What I've found that interests me most is that there is an technological argument that "repurposing" full text RSS feeds involves a form of linking rather than a reproduction of the type classically associated with the current copyright law. If that is the case, then it may be that the early web page framing cases, rather than the copyright laws, provide the legal framework for analyzing these issues. To the extent that we call can learn more specifically what is actually happening when feed items are aggregated or repurposed, the discussion of the legal issues will become more focused and more helpful.
At this point, I think it's safe to say that most authors will have at least a visceral reaction to seeing someone making money, by ads or otherwise, by repurposing or publicly aggregating their feed content. On the other hand, most bloggers would probably give permission if asked.
Unfortunately, as Denise noted in her comments to Shelley's post, resolution of these issues in the courts could take years and still leave us with open questions. In the meantime, we all still need to make decisions about how to address these issues. In a nutshell, that points out one of the growing problems with a legal system 1.0 in a web 2.0 world.
Eric Mack has started a discussion on another of those seemingly simple questions about copyright fair use that ends up appearing to be far more complicated than you might initially think.
Here's the basic premise:
Eric wants to scan a textbook for a class he's taking and read and annotate it in digital form on his Tablet PC. He's already bought the book. As he started to think about it, he became concerned about whether he could legally do that. As a result, he's started a discussion in the comments to his post and plans to use this topic for a research paper. I encourage you to join in, because these straightforward, practical questions should not be so difficult for people who aren't copyright lawyers to determine.
I'd enjoy seeing whether Eric can get the publisher's answer to his question.
A few observations:
1. Is / should this be any different from underlining, highlighting and annotating the book itself?
3. This question raises the issues of time-shifting and personal convenience not in the areas of video or music where it has been traditionally considered, but in the classic book context. To use Nicholas Negroponte's "bit and atoms" framework, are we seeing copyright law written for a world of atoms run into difficulties as we move into a world of bits.
I invite you to read Eric's post, the comments so far, and add your own thoughts and analysis to the comments for Eric.
The Grateful Dead ended the controversial reversal in policy made to their long-time concert recording and sharing policy that I mentioned here a few days ago. In other words, the reversal was reversed, as Fred D. mentioned in the comments to my original post.
Fred Wilson sets the story in a traditional holiday framework in his "A Deadhead Carol."
It is difficult to estimate the number of articles and blog posts that have used as an example,the way the Grateful Dead allowed its fans to record concerts and share those recordings. Often, the Grateful Dead's approach was used as a counter-point to the "aggressive" policies of the RIAA. Some even suggested that this approach pointed us toward a future "enlightened" approach to fair use and other copyright policies toward music that reflected the ways people actually used and wanted to use music, especially as part of a community. Some even argue that the approach points to a highly-effective alternative business model for musicians.
Recently, Deadheads and more than a few pundits were surprised by a drastic change in the Grateful Dead's policy.
Dave Bollier's post called "The End of a Long, Strange Journey" does a nice job of summarizing the story (and launching a flurry of references to Grateful Dead song titles).
He reports:
As reported in today’s New York Times (November 30, 2005), they are trying to stop downloads of Dead music from an independent website that has made thousands of recordings of Dead concerts available. The band has asked the Live Music Archive – part of the indispensable Internet Archive run by Brewster Kahle – to make the music available for online streaming only, not downloads.
This has enraged many fans, who consider this move a deep violation of trust with the community of fans. They consider it a betrayal of the band’s deepest ideals. A petition drive has been launched calling for a boycott of Grateful Dead recordings and merchandise unless the decision is reversed.
Yes, in other words, and here comes the obligatory Grateful Dead title reference, the fans plan to keep on truckin' this petition until the policy gets changed.
Why is this important? As Bollier says, "The long, strange journey of the Grateful Dead has taken a new twist, one that forces us to ask – Who really owns music, the artists or the fans? Who owns the value (and values) generated by a band and its fan base, and how should that “wealth” be controlled and allocated? "
And the money quote:
A band spokesman, Dennis McNally, told the Times that Internet music-trading is radically different from the previous kind of sharing because the former does not build community: “One-to-one community building, tape trading, is something we’ve always been about. The idea of a massive one-stop Web site that does not build community is not what we had in mind. Our conclusion has been that it doesn’t represent Grateful Dead values.”
For a band that once celebrated its mystical idealism and blithe defiance of mainstream culture, this explanation has the whiff of lawyerly b.s (emphasis mine). Market control and profit maximization were never high on the list of Dead values. The band was cavalier about intellectual property because its members reaped an ample livelihood, not to mention great fun and joy, by concentrating instead on their be-here-now performances and humanity. The Dead’s franchise was based on their passion and purity, forged in collaboration with an adoring fan community. This not only made them a legend. It was a fantastic business model.
Has that been jettisoned by what remains of the Grateful Dead, who now want to cash in on their archives? Is this the real end of the long, strange journey – a fork in the road that the fans will reject?
The outcome of the dispute will say a lot about who really exerts control in the networked environment and where value resides. It’s a struggle that is playing out in countless permutations in other corners of the Internet. For myself, I’m betting that the Deadheads are likely to be the more enduring and powerful champions of Dead values than the band itself, R.I.P.
That's a big question: Who really exerts control in the networked environment and where does value reside? Another big question is whether our current copyright laws balance those interests and answer that question in a way that makes sense in our networked environment and reflects people's reasonable expectations and, in this case, a pattern of practice upon which people have relied?
In any event, I could not agree more with Bollier that "it’s a struggle that is playing out in countless permutations in other corners of the Internet."
It also raises one of my favorite questions: why isn't it OK to purchase/own a recording of a live concert that you bought a ticket for and attended?
Expect fans to be living under a dark star until this issue gets resolved.
I tend to shake my head in disbelief as the entertainment industry lurches from one audience-alienating position to another on copyright, digital rights management and other issues. Recent talk about entitlement to some kind of fee or royalty on iPods seems like the "topper," but you never know how far the recording industry is prepared to go to protect their 20th century business model.
According to Michael Geist, the CRIA may have taken things a bit too far for our Canadian friends with recent efforts to conduct surveys "that seek to link seemingly all teenager problems and recording industry woes with file sharing."
Geist notes, "The claims are so over-the-top - as if a reduction in file sharing would somehow lead to less shoplifting or cheating on school tests - that the press release would be more at home as an article in The Onion, than in the traditional media."
Geist also shares this storys: "Perhaps the most telling response, however, came at the Bill C-60 Open Forum yesterday. The CRIA release was mentioned by one of the speakers. The entire audience from all sides of the copyright debate just laughed."
Red Herring, Bloggers Face the Law: "Bloggers are an unstable subset of many categories, so it’s not always clear which precedents apply." (Thanks, Buzz!)
I enjoyed B. L. Ochman's succinct summary of the recent story of the New York and San Francisco transit authorities sending cease and desist letters to a blogger who was making available iPod versions of the printed subway maps they provide for free.
She says:
Go figure. Cease and desist letters are a bit of a joke in the blogosphere. Once you see them, and how seriously preposterous they are, it's hard to take the writer seriously.
There are many lawyers who see every issue as a legal issue for which only legal options, such as cease and desist letters, are the only conceivable options. How much better it would be for everyone if the lawyers here had simply suggested that the people involved talk to each other and work together to see how they could make the useful downloadable versions of the maps available to users of the transit systems?
Since I've seen at least a half-dozen mentions of this public relations fiasco today, I'm guessing that some people might be reconsidering the wisdom of acting purely on legal advice without considering real-world consequences and common-sense alternatives.
This story also raises the issue I've seen raised on the PR blogs over the past year or so - are companies looking to public relations, marketing and other professionals rather than lawyers to handle issues with real-world implications? Would you rather have B.L. Ochman advising you on how to handle this issue or a lawyer who is firing off cease and desist letters? I simply ask the question.
I'm a bit behind in discussing this (and Copyfight has already mentioned the issue here and here), but it appears the Internet Archive has been sued for making archived web site pages available after the plaintiff had attempted to block them from being displayed.
I'm no copyright lawyer, and there's a terrific discussion of the legal issues at the Patry Copyright Blog, but this whole thing seems pretty flimsy to me. Any thoughts from the more IP-enlightened here?
I don't have anything to add to Dennis on the parallels (or desired parallels) between tax and copyright policy, except that I enjoyed it (and I assume his concluding sentence is either rhetorical or hoping to prompt a discussion). In somewhat similar vein, don't miss Marty's post on blogs, print, and trademarks.
From today's SmartPros newsletter comes a fascinating story about tax compliance that I invite you to think about in the context of copyright compliance in digital music, Internet content and the like, as well as the role that an actively-managed Creative Commons licensing system might play. The article is called Taxpayer Advocate Says Voluntary Compliance Is Key.
From the summary:
"Excessive focus on enforcement at the expense of taxpayer service could have the effect of both reducing voluntary compliance and alienating taxpayers, according to a report delivered to Congress last week."
The money quote:
Commenting on taxpayer service research, Olson points out the IRS strategic plan for 2005-2009 -- "Service + Enforcement = Compliance" -- and states that the IRS has not conducted research seeking to determine the optimal allocation of resources between service and enforcement. "Consequently," Olson writes, "the IRS does not know whether recently proposed reductions in customer service will save the government money, since the potential impact on taxpayer compliance can not be quantified."
As we try to determine what you can and can't do in putting music you think you already own on iPods and how you can use music legally on your podcast, it is a worthwhile exercise to think about ways to set clear guidleines and make it easy for people to comply with the law. If you make it easy for people to comply with the law, they generally will comply with the law.
Here's a great example. I listened to a podcast interview with Brian Ibbott of Coverville on Podccast 411. The interview is a tremendous resource for anyone who uses or wnats to use music on a podcast. I listened to all the efforts Brian has made to talk to the appropriate people to get the licenses he needs to use music on his podcast. His experience has been Kafkaesque. There comes a point in the interview where he says that he hopes that they won't come after someone like him who has made a concerted effort to comply with the law and the licensing procedures and instead focus on people who have made no efforts. He then acknowledges that he's not sure that he hasn't made himself a bigger target by trying to do the right thing in a public way. That's sad.
If, ultimately, you are after more of the revenues that you are entitled to, is it better to focus on making it easy for people to voluntarily comply or spending most of your money and effort on expensive enforcement efforts that generate ill-will and negative publicity? In copyright aas well as taxes, should we be tipping the balance more toward voluntary compliance than on enforcement?
Monday, June 27.Grokster decision issues from U.S. Supreme Court. Court concludes that "statements or actions directed to promoting infringement" should trump the safe harbor represented by the Sony-Betamax decision. Applies to secondary liability for user infringement in connection with all products "capable of both lawful and unlawful use." Fact of probable "staggering" scope of direct infringement by users, while not controlling, undeniably shades the analysis.
Tuesday, June 28. iTunes 4.9 debuts, now with podcasts. The good news: many podcasts are copyright friendly. The bad news: many, not so much.
Wednesday, June 29. The Wall Street Journal reports that "Apple will weed out podcasts that include full-length songs for which [sic] podcasters don't have permission to use," and that "Mr. Jobs says Apple has an agreement from music companies that allows podcasters to play 30-second song clips in their shows."
Hmm. I begin to understand what Ernie Miller meant by "ironically." Like the business models of Grokster and StreamCast, the iPod business model hinges on users having worthwhile, perhaps frequently infringing, listening material. In podcasting then, Apple has the proverbial Tiger (no pun intended) by the tail. Will it behave, or not? (Playing with fire and bargaining with the devil are two other hackneyed but apropos expressions that come to mind.) Will podcasts strengthen Apple's ability to fend off secondary liability claims, or just multiply the number of direct user infringements being facilitated? It's tough to say, but I bet it's got legal in a tizzy.
So here is this important opinion, freshly squeezed from the High Court this morning. And already we've got, not one, but two or more discussion threads going between some major legal/tech eagles. I realize these discussions do not conform to the Bluebook Uniform System of Citation and haven't been sub-and-cited (see duty #3) by bookish law students, but this is some pretty amazing stuff. And five years ago the possibilities of this sort of technology wasn't more than a gleam in some techie's eyes.
I wonder what the future holds for P2P file sharing? I don't know, but I doubt anyone else does either. The Supreme Court opinion will have a strong short-term influence. But the fact is that information is hard to contain, and I think that routing around obstacles is now built into our information-matrix. I hate to say that the Supreme Court opinion is a mere obstacle, but somewhere out there is a techie or two that will see it that way. That much, I do know.
For cutting edge and up to the minute discussion and analysis of the today's Grokster decision, check out the Wall Street Journal's Grokster Roundtable, which includes Denise Howell of Between Lawyers among its imposing list of expert panelists.
The other central issue permeating much of this discussion here at Gnomedex is how the law will deal with the commonplace uses of mass produced entertainment made possible by technology. (e.g., incorporating music, video, etc. into other works; time-and-place shifting entertainment you have purchased.) Will there be a legal solution? A commercial one? Both? Neither? Lots of opinions in all directions.
I'm at Gnomedex, taking in the comprehensive schedule that focuses on what's new and important in Web communication and technology, and what's on the horizon. Here are what I perceive to be the critical legal issues swirling around the talks so far:
Feeds and copyright. The notion of whether an implied license or waiver exists by virtue of the publication of a feed is going to get litigated, somewhere, somehow. A wrinkle I haven't seen discussed much yet: the fact that mom and pop users posting text or other material to the Web using today's ever more sophisticated and syndication-aware authoring tools might have no idea they are, in addition to creating a Web page, syndicating their material. In order for a court to conclude that a publisher has relinquished otherwise applicable copyrights, I think at minimum someone would have to show that an express intent to authorize broad re-use was present. There's thus an education gap on the user side that is poised to either work against those who urge an implied license or waiver, or against the tool providers. (I.e., "What? No one told me there might be copyright ramifications of publishing a feed.")
Someone needs to register and populate noninfringingbittorent.org.
I'm struggling with how the legal panel is going to compete with all new product previews and launches here. It's already past close of business for the week on the east coast, so maybe the Pacific time zone can come up with some radical new legal framework before day's end? Let me know!
Any person in a business or other organization who cares about the entity's financial and technological well being would be better off for listening to Dan Bricklin's Software Licensing Podcast.
Ernie Miller has kicked off an interesting discussion on whether the DMCA's notice-and-takedown provisions are so intrinsically messed up they should be avoided altogether.
I've enjoyed reading the discussion here and elsewhere this week about the uncertain and unpredictable nature of copyright law today and whether and why it matters. (Some links aggregated here.) To answer Marty's earlier question to Dennis, the reason I worry about this stuff is to me it's anotherexample of a problem we've historically created and relatively recently identified, but haven't solved and now threaten to foist upon our kids and grandkids.
Copyright law is like an aging house. Though it may still serve its central purpose of providing a roof overhead for its owners, its infrastructure and plumbing have reached the end of their useful lives, and need to be updated if the whole structure is to remain sound for decades to come. The areas most desperately in need of renovation are:
The scope of copyright. What does and does not need to be protected in today's day and age, and when should protection attach?
The definition of infringement. Where should the focus be, e.g., on copying, or as Ernie Miller suggests, distribution? Certain forms of copying and distribution deserve to be treated differently than others from a policy standpoint, and they should be definitively carved out of the definition.
The requirement of harm. In cases where an activity is technically infringing but actually confers economic benefits on the rights holder and cultural benefits on society, there should be more roadblocks to a legal recovery than are in place today.
How do we know the current copyright structure really needs this remodel? Dennis' post is illustrative, and one could devote many hours (indeed, manyalreadyhave and regularly do) to chronicling similar examples. The cornerstones of "thievery" and "piracy" have been eroded by technology and utility, and by the old fair use standbys of news, commentary, art, education, and science. When your child takes something from a store, you explain why that was wrong and take her back to apologize and return it. When she mods her Xbox so she can back up her games to its hard drive and improve its performance, a similar trip to Redmond is the last thing on your mind. You're too busy considering her prospects and potential.
Who are the general and sub-contractors of this remodel? We all are. Participatory journalism gets a good deal of attention, but with the kind of unprecedented, unmediated, and distributed influence on the lawmaking process becoming possible today, "participatory law" is just as important, if not more so. Conversations like this one can become part of the analysis, and so can ideas generated around Creative Commons, collective licensing, and collaborative editing of scholarly texts. Keep hacking and hammering folks, and just maybe our children will inherit fewer constraints and uncertainties, and a better world.
Marty asked why I worry about this sort of stuff. I worry about this sort of stuff because I want to be the voice of the common people on this blog - the people who want to play by the rules and do the right thing, only to find a legal system that is so impossibly confusing that they don't know what the right thing to do is.
Of course, I also worry because the borrowing CDs from the library idea hit me and it seemed to good to be true, so I thought I'd post about it on Between Lawyers to see what people thought about it.
Marty, you might also notice that, just from the Trackbacks that post already received, this sort of stuff is thought about by people all around the world, including our Corante blogging colleague, Ernest Miller (who has an excellent post on these issues, despite his somewhat disconcerting habit of calling me "Kennedy" throughout the post - it's more than OK to call me Dennis). Perhaps the world doesn't revolve around trademarks, eh, Mr. Trademark Blog?
As an interesting aside, Miller's post shows the all-too-frequent divide between lawyers and legal academia where lawyers (for example, me) raise issues that seem to show that they are pretty much unaware of debates that have been raging in academic circles on the issues for years. On the other hand, I might be more aware of these debates than you might expect, but might have decided to take another approach in my original post. Who can be certain about copyright law interpretations or blogger's intentions these days? Not me.
As for me, I just want to play Columbo in all this: "I just have a simple question - it shouldn't take more than a minute to resolve."
When we started the Between Lawyers blog, we wanted to look at the question of how do you try to comply with the law when the application of the law is uncertain and there are no settled cases to give you any good level of comfort, let alone certainty. In other words, what do we do when technology starts to outpace the law?
My usual approach to these areas is to ask the simplest, most basic practical questions I can and see whether there are clear answers. Then I complicate the matters a bit to see where we get into the gray areas. I also assume that most people really do want to do the right thing and behave in ways that comply with the law.
Lately, I’ve been thinking about copyright law, music, and changing technology, with the iPod as my example.
I want to think about what I can confidently do with my music collection today. I’m looking for what I’m certain I can do if I take a very cautious approach to the legal issues.
Let’s assume that I want to make no commercial use of musical recording whatsoever – I just want to listen to the music. Here’s what I’m certain of (until someone corrects me):
1. If I buy a music CD, I am certain that I can play it on one CD player. I’m quite confident, or at least I was until those DVDs with geographic limitations came out, that I can probably safely play the CD on all of the CD players I own, wherever I might take them. I am assuming there are no limitations under a license that I don’t realize exists.
2. If I download a song from the iTunes store, or a similar online digital music store, I can play the song where the license permits me to play it. In most cases, I won’t run into any limitations that will bother me, but I must admit that I do not understand completely what limitations there may be in pulling a song off my iPod and using it on another device.
In example #1, there are some standard copyright principles, some specific laws, some history, and some common sense at play. In example #2, a specific license governs our use. Let’s assume that cassettes, LPs, videocassettes and the like fall into category #1 and commercial digital music probably falls into category #2.
The famous Betamax copyright decision focused on the notion of time-shifting, or, in a difference sense, control over when we watched a program we recorded so we could view it at a more convenient time. Despite the anguish at the time, history suggests that allowing the normal types of copying and time-shifting resulted in a great economic boon for the entertainment industry.
We now live in an amazing time when I can listen to a song on a variety of players, indoors, outdoors, in the car, on a network, wirelessly, and many other ways. Increasingly, especially after I own an iPod, I want to listen to my music where I am, in the most convenient way possible. I do not to become a licensing or copyright specialist.
Here’s where the difficulty lies. I believe that what I am doing is playing my music and listening to it. Unfortunately, in our digital world, what is also happening is that we (or our computers, other hardware and software) are making many, many copies of the digital information carrying the song as we listen to our music in many ways and in many places.
Copyright law deals with reproductions and copies. What copying is allowed and what is not? Is automatic “copying” as part of the normal mechanical or computer process (e.g., your browser caching a copy or two of this page while you read it) an infringing kind of copying? There certainly have been court decisions that would lead you to that conclusion, even though that’s a very unexpected result
Historically, we have looked at “fair use” to cover the normal, expected ways that someone might make use of a creative work without infringing the copyright. There’s a well-known four-part test for determining whether a use is a fair use. One of them is the extent of the copying. .In a digital copy of a song, you have a perfect copy of 100% of the work. You fail that part of the fair use test every time and you have to make your stand on the other factors, which, frankly, don’t relate to playing your favorite music wherever you want to play it.
I’m coming to the conclusion that “fair use” really doesn’t apply in the setting of the normal use of copyrighted works, especially when you consider the common examples of what uses “fair use” is meant to protect - , comment, news reporting, teaching, scholarship and research In fact, fair use is a notion that applies to certain specific types of public uses rather than private or personal use. You can’t really stretch it to the point of covering the standards uses we all make in the normal course of playing our music.
Here’s a list of a few things that I might do with music these days and my thoughts about whether it is clear under current law whether I can do them.
1. “Ripping” songs from CD I have purchased to copy the songs so that I can play them on my iPod, computer(s), PDAs, and other devices. Make no mistake, this is copying. I feel reasonably comfortable about ripping a song into iTunes and putting it onto an iPod, but I must admit that my comfort comes from the fact that “ripping” is a feature of the software and that Apple and the recording industry seem to have come to an accommodation on this issue. I’m not sure that I would have the same level of comfort if I only looked at the statutes and case law. When someone starts to have a half dozen or more copies of the same song file on various drives and devices, probably in a variety of file formats, I start to wonder whether you reach a point where it can be argued that having “too many” copies can expose you to liability.
2. Converting analog recordings to a digital file format. Again, largely because of the hardware and software that is available for this purpose, I’m reasonably comfortable, but I wonder about copying and reusing old recordings with technologies that were not contemplated at the time of the pressing of the original vinyl.
3. For convenience, storing all my digital music files on a server on the Internet so I can access all of my songs wherever I am. On convenience grounds, this is a very reasonable action to take, especially if I’m concerned about device failures. However, the Napster-era decisions make me nervous about this use, even if I have password-protected access to my server.
4. Using CDs or digital files that I haven’t purchased to make copies of analog recordings that I own. If you have read this far, you now understand where I was going with all of this. If you rip your CD collection and put it on your iPod, you’ll notice that you have songs on cassettes and LPs that you’d also like to have on your iPod. You have three standard choices. (1) Purchase the songs you want individually from the iTunes store or an equivalent source. Unfortunately, if you have thousands of songs, you potentially pay thousands of dollars for copies of songs you already purchased once. (2) Buy some hardware and software and convert your analog songs to digital in a real-time fashion that could take months. (3) Pay a service something like $6 to convert your analog recordings to digital files.
However, once you start thinking in terms of control, convenience and time-shifting, other options become quite logical, if you proceed from the premise that you already bought the song once. For example, you could save time by checking out CDs of albums you own from a public library and ripping them. You might borrow CDs or copy digital files from a friend. You might have other ideas as well. For example, think about a website where you signed an electronic affidavit that you owned a cassette tape of LP version of an album and then could download the digital files at a very small cost. After the Napster-era litigation and decisions, that one, logical as it may be, is probably a non-starter.
Again, assume that your purpose is always simply to listen to the music how and where you want.
Let’s consider some other examples outside the music realm. Assume that you want to print out a copy of this blog post to read at a more convenient time because the post is too damn long. That should be OK. There’s probably an implied license to print out a copy. How about two copies? Three? Emailing a copying to a friend? A few hundred friends? Printing as a PDF file and keeping the PDF files on several computers?
How about this one? What if I routinely print out paper copies of blog posts I like and store them in manila folders in a file cabinet? Should be OK, right? What if I “print” them as PDF files, store copies of several computers and use the features of Adobe Acrobat to create a great research collection or personal knowledgebase? Same answer, right? Maybe not. I don’t feel as comfortable with my answer as I did with the file cabinet answer. I’m not sure why – either why I’m uncomfortable or why there should be any difference.
I’ve lately started to feel, as have others, that there is a certain common sense approach to the use of digital copyrighted materials that (1) reflects our normal expectations about what we should be able to do with a copyrighted work just to use it in ordinary ways that do not seem to hurt the author of the work and (2) recognizes that the more we try to stretch the notion of fair use to cover these normal uses, the more we risk fracturing the protections that the fair use doctrine does provide.
My thought, and what prompted the title of this post, is that we are overdue for a reconsideration of the practical meaning of copyright law for real people in a digital world and that the subject of defining a “personal use” exception to copyright infringement that reflects the way people normally behave that would be separate from “fair use” should be considered and debated, while leaving the “fair use” doctrine in place to cover what it was intended to cover. In a sense, I’m advocating something in the spirit of what my friends at rethink(ip) raise in the title of their blog.
This area now seems to be one where the technology, and the uses of the technology, have zoomed way ahead of where the law is. Unfortunately, it seems to have moved so far ahead that I can’t see that there are any certain answers to very basic questions about what confidently can be done under the copyright law, as it now exists. I’m hoping that other people can help me. As a practical matter, we all have to make a determination about what level of legal risk and uncertainty with which we are comfortable. As you move to the conservative and cautious end of the spectrum, I think that you find very little ground to stand on.
As I said, I don’t have the answers, but I’m happy to raise the issues and offer Between Lawyers as a forum to discuss the issues.
Note that I did not go so far yet as to suggest that I should be permitted to buy bootleg recordings of concerts that I actually attended because they are simply ways to supplement the memories I already have.
Shelley Powers has a new theme that rings a bit familiar. What do you think of her interpretation of the Creative Commons license we applied to Between Lawyers? If she's wrong, does she have a good parody argument? If we and/or Corante wanted to make sure the Web does not suddenly become a uniform, 3-column, red-white-and-gray place, would some minor adjustments to the notice announcing the BL CC license do the trick?
Birdfood for thought.
[Update:] Though Shelley makes some excellent points and she and I have been having fun, I had to go and get a little lecture-y about the risks of this kind of thing. And you should read the whole comment thread.
My wife, my daughter (the young drummer) and I recently went to the St. Louis stop on the Steve Gadd drum clinic tour (details here). Gadd, perhaps the most respected drummer in the music business today, played drums and answered lots of questions.
Of special interest to me were his comments about the culture of drumming and creativity. He explained how he used to play records at slow speeds to learn how drummers played on certain tracks. He talked about all the drummers he had learned from, drummers he borrowed ideas from and how drummershave always shared ideas and techniques and learned from each other.
He stressed the notion of a great continuing conversation between drummers and that the learning of drumming was transferred by drummers talking to each other and sharing what they knew.
He painted a picture of an exciting, creative space where drum ideas were put out into the world at large and used and modified by other drummers to create an evolving, vibrant music.
He pointed to a number of his tracks that were subtle variations on other drum tracks and how ideas were incorporated into some of the most famous drum tracks in popular music.
When people talk these days about the “remix culture,” I see the world of drumming that Gadd described. With a culture of sharing, music and art grows, evolves, honors the past and creates the future. And that’s how it’s been for thousands of years.
Today, we look at “intellectual property rights,” digital rights management,” ownership and control with a such a fierce determination and a fixation on “property” that I worry about whether we’ll be left owning bundles of more and more elaborate IP rights to less and less interesting works and leave a legacy of art and culture that is much poorer than when it was turned over to us so that we could leave our own mark on human culture.
Laws have consequences, often unintended ones. Let’s be very careful out there. Marty points to efforts to control and exploit for financial gain the ownership of weather data. Maybe it’s important. Maybe it’s very important. But I can’t say that it’s not important. Try explaining to your children how someone can “own” the weather information.
In fact, there’s an important kind of creativity based on reorganizing, recasting and repositioning existing ideas and materials in new and unexpected ways that let us see new connections and see with “new eyes.” Are we now in danger of legislating and litigating this type of human creativity out of existence?
What is the value of your song if you’ve made it so only a few can hear it? I can’t dance to a copy of your copyright registration form.
Monetarily, it might be greater, at least by record company calculations, but the musicians I’ve known want as many people as possible to hear his or her song. It’s about hit records and hearing your song played and enjoyed by people.
Let’s not forget that there is a lot at stake in almost every intellectual property legal issue we face today. I hope we are not creating a world where my daughter can’t learn Steve Gadd’s drum techniques or play his tracks and try to evolve them into her own without having lawyers negotiate for her rights to do so.
Note: This post was inspired by my first listen to Bruce Springsteen’s new Devils and Dust CD.
My dad just let me know about this interview with Adobe's CEO Bruce Chizen in the San Francisco Chronicle. There's a lengthy discussion of his views on software piracy (he's "con"), including his hope that the U.S. Supreme Court winds up "making it illegal for companies like Grokster to share intellectual property."
Ouch. Maybe this was just a misstatement. (With all due respect to Mr. Chizen, whatever your views on P2P networks there's no getting around the fact the sense of this sentence could have been greatly improved by the addition of just one word, e.g.: "unlawfully share intellectual property," or, better and shorter, "share our intellectual property." A great deal of the intellectual property being shared on P2P networks is there because its creators want it there. Also problematic is the fact that based on this phrasing Mr. Chizen might be confused about just who is doing the sharing.) But misstatements like this from CEOs of major technology companies are just...sad. Maybe the rethink(ip) folks are right that in this day and age intellectual property law needs to become part of the standard educational curriculum.
Well it's official: our back and forth here has resulted in consensus, and we'll be applying a Creative Commons license to Between Lawyers. Thanks to everyone who provided input and feedback. Our new licensing will show up here graphically and in our feed very soon.
Dennis wrote: "...as in the CC licenses, you can disclaim warranties, limit liability and cover other important matters. The second point is very important." I remember seeing recently that VentureBlog is doing this kind of thing via "terms of service." From a purely personal and nonlawyerly standpoint, terms of service strike me as a little off-putting and overbearing on a weblog as opposed to a Web site. But as a practical matter there's not much "as opposed to" about it, and I'll wager Venture blog isn't/won't be the only one to go this route, so I guess I'd better start thinking more sympathetically about the idea.
In this episode, Denise and Tom begin to persuade me, but it's the notion of evolving toward open source law that I find convincing.
I have to admit that Tom and Denise are so darn reasonable and I seem, well, a little petty, almost as if I still hold some kind of grudge since the day the CC group amended the first set of licenses and pointed out the names of people who had suggested the changes and LEFT OUT A MENTION OF MY NAME. Fortunately, I don't let that kind of stuff bother me.
There's a comment on one of the posts in this thread from Karl-Friedricha Lenz, who has written as much and as well about the details of the CC licenses as anyone I know. He raises a great point - maybe now is a good time to consider simplifying the license language and making it a little easier to understand.
I'd also like to see a greater effort made to collect and maintain analysis and interpretative materials. I'd also like to see a stronger leadership role from the CC in letting us know how to enforce these licenses.
I was talking to Tom today about some other things and we discussed this issue a bit.
Tom asked, "Aren't we better off with some license than no license?" You can argue that not having a license allows you to retain as many of your copyright rights as possible and allows a user/publisher to claim as few rights as possible. However, you leave the scope of what someone else can do to later interpretation.
If you use a license (of any kind), you gain the benefit of (1) explicitly setting out the terms of the license and (2) as in the CC licenses, you can disclaim warranties, limit liability and cover other important matters. The second point is very important.
You'll probably agree that these two points make us want to have a license agreement rather than not have one.
That brings us to the second part of the analysis: CC license or custom license. Let's put aside for the moment that my
Denise Howell
Dennis M. Kennedy
Tom Mighell
Marty Schwimmer
Ernest Svenson
