April 29, 2009

Not Just A Problem With Flu Coverage [5:25 pm]

Frankly, I believe that our last 6-9 months of financial news coverage has been an even more egregious illustration of this problem, and has really gone over this “fine line:” Coverage of Flu Outbreak Walks a Fine Line (pdf)

“I get people who see the media, and people who are anxious to begin with will use this as an outlet for their anxiety,” said Dr. Joseph Rahimian, an infectious-disease specialist at St. Vincent’s.

Without the news media the public would be dangerously unaware of the swine flu outbreak, but perhaps without saturation coverage on cable news networks and the velocity of information on the Internet, the public would not be so hysterical, medical professionals said.

“It’s a fine line between educating people and frightening them,” said Dr. Marvin J. Tenenbaum, the director of medicine at St. Francis Hospital on Long Island. [...]

[...] Phil Griffin, the president of MSNBC, said, “We have to be careful that we’re not alarmists.”

As I said, when it comes to coverage of the global financial markets, that ship has already sailed.

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Today’s Ted Rall [10:50 am]

Don’t miss it: Ted Rall; April 27, 2009 (local copy)

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Santangelo Settlement? [10:04 am]

Music Companies Agree to Settle Piracy Suit (pdf) (earlier posts)

After battling a suburban family for four years over music downloads, the recording industry has agreed to accept $7,000 to settle a federal music piracy lawsuit.

If approved by a judge, the settlement would end a four-year fight between record companies and the family of Patricia Santangelo, 46, a mother of five, who lives in Wappingers Falls, N.Y.

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April 28, 2009

Google Books == Antitrust Violation? [9:37 pm]

U.S. Opens Inquiry Into Google Books Deal (pdf)

Lawyers for the Justice Department have been in conversations in recent weeks with various groups opposed to the settlement, including the Internet Archive and Consumer Watchdog. More recently, Justice Department lawyers notified the parties to the settlement, including Google, and representatives for the Association of American Publishers and the Authors Guild, that they were looking into various antitrust issues related to the far-reaching agreement.

The inquiry does not necessarily mean that the department will oppose the settlement, which is subject to a court review. But it suggests that some of the concerns raised by critics, who say the settlement would unfairly give Google an exclusive license to profit from millions of books, have resonated with the Justice Department.

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April 27, 2009

Obituary for Barbara Ringer [7:57 am]

Barbara Ringer, 83; crafted updating of copyright law (pdf)

For years, Ms. Ringer devoted much of her time to drafting a new, comprehensive copyright act and educating members of Congress about why it was needed. Foreseeing the rise of the Internet, she inserted provisions into the law to protect authors from the unauthorized reproduction of their work, even by means not yet devised.

“The basic human rights of individual authors throughout the world,” she warned in a 1975 speech, “are being sacrificed more and more on the altar of . . . the technological revolution.”

Ms. Ringer spent 21 years drafting the legislation and lobbying Congress before the Copyright Act of 1976 was finally passed. She wrote most of the bill herself.

“It brought an essentially 19th-century law up to date with the late 20th century and 21st century,” said Arthur Levine, a copyright lawyer who worked with Ms. Ringer at the Library of Congress. “I dont believe there would have been a Copyright Act if there hadnt been a Barbara Ringer.”

The original article source: Force Behind New Copyright Law (pdf)

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April 23, 2009

A Shepard Fairey Comment [9:25 am]

From The Moment, a New York Times blog, by Steve Heller (co-chair of the MFA Design Department at the School of Visual Arts ): Shepard Fairey Is Not a Crook

Those who rebuff Fairey’s work are angry that he misappropriates (read: steals) famous art and design works; they argue that Warhol changed paradigms while Fairey makes knockoffs. I did an interview with Fairey for his recent book, “Obey: Supply & Demand,” and I admit that on occasion he has come close to crossing the line from acceptable borrowing into murky infringement territory. But after seeing the satiric art barbs that he aimed at politics, cultural icons and bêtes noires in his exhibition at the I.C.A. (where I participated in a panel discussion on appropriation), I can say this: Shepard Fairey is not a crook.

[...] The critics argue that literal replication of the originals — and this is true of Moser and Muller-Brockmann’s imagery, among others — is ethically wrong, but that charge fails to take into account Fairey’s fundamental ethos. His is a wink and a nod toward visual culture and media monopoly. No designer with Fairey’s experience and historical knowledge could be so stupid as to pinch such visible historical artifacts and call them his own. On the contrary, Fairey sees popular visual culture in terms of what Tom Wolfe has called a “big closet” of shared objects. For him, the ubiquity of the graphic design and advertising art that he relies on for source material makes it a kind of commercial folk art. Although some of what he borrows is not as anonymously vernacular as one might like, Fairey believes that the fact that it is designed for public consumption makes it free for the taking.

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A Cyberstalking Fight [8:09 am]

A followup to an earlier post: A fighter, then victim, of cyberstalking, lawyer pushes to close loophole (pdf)

Joan Lukey, a prominent Boston lawyer who has fought cyberstalking and harassment in the courtroom, is fighting back at her own stalker.

The attorney at Ropes & Gray said she is being targeted by the same person who harassed - and continues to harass and threaten - her former client, author Patricia Cornwell. So Lukey is pushing to close what she believes are loopholes in federal law that prevent victims from tracking down their stalkers and holding them accountable.

Specifically, Lukey said plaintiffs in civil suits and victims of cyberstalking need to be able to identify their attackers and trace their whereabouts.

[...] With Lukey representing her, Cromwell sued Sachs for libel in Virginia, where both had previously lived. A federal judge ruled in 2007 that at least 45 of Sach’s statements were libelous and ordered him held in contempt of court.

But in defiance of the judge’s ruling, Sachs remains in an unknown location, attacking Cornwell, and now Lukey, on various websites. He has accused Lukey of being an anti-Semite out to persecute him and says she has worked with the CIA.

Cornwell’s civil judgment is still standing. The problem is, no one knows where Sachs is. And, Lukey said, federal laws restrict ways to find out.

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April 22, 2009

More IPR Conflicts [9:13 am]

I have never, as Steven Colbert puts it, “twatted,” but we all knew that this was coming: Lawyers Enter Twitter Tempest (pdf)

In February, Adam Robb Rucinsky began poking fun at Ms. Freeman online using her byline and Restaurant Girl, which is the name of her Daily News column and her blog.

Mr. Rucinsky, a 30-year-old part-time art dealer who uses his middle name as his last name when he writes, sends silly blurbs on Twitter and writes inane blog postings that purport to reflect Ms. Freeman’s musings about New York City restaurants, like “Governor of Texas raving about Secession on TV all week. Must be great word of mouth for Bouley!” His fake Restaurant Girl also ventures into more cosmic concerns: “Does anyone know what happens to all the chocolate bunnies no one bought for Easter? Are they put to sleep?”

To try to put a stop to it all, Ms. Freeman had lawyers from a Beverly Hills firm send Mr. Rucinsky a stern letter ordering him to stop using the names Restaurant Girl and Danyelle Freeman by the end of this month.

His joke infringes on her rights to her trademark, Restaurant Girl, the lawyers wrote. He should stop using that name or Ms. Freeman’s name in parody form on the Internet, the letter said.

Mr. Rucinsky, who has been talking to his own lawyers and doesn’t plan to budge, said he started the Twitter parody and a subsequent blog as a creative writing exercise. He thought he had found a rich target in Ms. Freeman’s style, which melds the top-of-the-head immediacy of a blog with the breezy tone of a late-night phone call from a friend on her way home from a night of sangria and tacos.

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Some Copyright News and Transactions [8:52 am]

  • Rodgers and Hammerstein Catalog Sold (pdf)

    The sale represents a transfer of power over one of America’s most famous song catalogs and the licensing rights for future productions of the musicals, which until now had been controlled by the Rodgers & Hammerstein Organization, a Manhattan-based company that is widely known in the theater world for its quality control and the active involvement of two heirs, the writers’ daughters Mary Rodgers Guettel and Alice Hammerstein Mathias.

    As part of the deal — the value of which was not released — Imagem is also acquiring the Rodgers & Hammerstein Organization and retaining its management, led by its president and executive director, Theodore S. Chapin.

  • A New York Times Editorial: The Brando Brand (pdf)

    Perhaps one day movie stars and celebrities will leave their names and likenesses to the public domain. That would clear up what might be called the Brando problem — the case of a major public figure who dies and leaves behind a potent if contradictory image and no clear commercial legacy. The effort to create a Brando brand out of the Marlon Brando trust is in the hands of his rather oddly assorted trustees: a producer, an accountant and his former personal assistant. So far, their major activity has been suing companies for infringing upon Brando’s name, which is trademarked.

  • From The Boston Globe: King Family: I have a financial motive (pdf)

    The family of Martin Luther King Jr. continues its litigious crusade to “protect” the civil rights leader’s image by demanding tribute from anyone who uses it.

    A reference to this AP wire services report: Family of Dr. King Charged Group Building His Monument (pdf)

    The family of the Rev. Dr. Martin Luther King Jr. has charged the foundation building a monument to him on the Mall about $800,000 for the use of his words and image, an arrangement one leading scholar said Dr. King would have found offensive.

    [...] “One would think any family would be so thrilled to have their forefather celebrated and memorialized in D.C. that it would never dawn on them to ask for a penny,” Mr. Garrow said, adding that Dr. King would have been “absolutely scandalized by the profiteering behavior of his children.”

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April 21, 2009

I Don’t Know [3:31 pm]

I have been overwhelmed, so this is all new to me, so I can’t do much more than post this bit: EU states, lawmakers on Internet collision course (pdf)

The battle over copyright abuse has emerged as a final sticking point between EU states and the European Parliament, which have joint say. The issue was not part of Redings reform, which covers infrastructure rather than content.

To help crack down on illegal downloading or sharing of copyright material, the two sides agree that an Internet service provider should be able to cut a subscribers access if there is approval from “a competent legal authority.”

EU member state ambassadors endorsed this at a meeting on Tuesday but said the provision must be in the “recital,” or guidelines preceding the body of the telecoms law, an EU official said.

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April 20, 2009

Pricing Network Use [8:27 am]

Cost, value and intangibles: Internet Providers Try to Charge More as Costs Fall (pdf)

The debate over the price of Internet use is far from over. Critics say cable and phone companies are already charging far more than Internet providers in other countries. Some also wonder whether the new price plans are meant to prevent online video sites from cutting into the lucrative revenue from cable TV service.

Cable executives say the issue is not competition but cost. People who watch or download a lot of movies and TV shows use hundreds of times more Internet capacity than those who simply read e-mail and browse the Web. It is only fair, they argue, that heavy users should pay more.

[...] Still, critics say the image of Internet providers as restaurants about to go broke serving an endless line of gluttons simply does not match the financial or technological realities of the industry.

They point out that providers’ profit margins are stable, and that investment in network equipment is generally falling.

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A Tale of MySpace and Music [7:28 am]


MySpace hopes to turn free songs into needed cash
(pdf)

The setup gives MySpace and the music industry a share of song-download sales from Amazon, and it could bring new revenue from ads. Next, Holt plans to make MySpace into a seller of concert tickets and band merchandise, while better targeting songs, ring tones, artists and ads at the people who will probably be interested in them.

Through these efforts, MySpace’s vaunted music-promoting power could help patch the leaks that have sprung up in the recording business. Even with sales of song downloads on the rise, the music industry is not recouping the revenue lost from falling sales of compact discs.

MySpace’s objective will be to find “half a dozen new revenue streams” that will help recording labels move away from just selling song downloads and CDs, said Rio Caraeff, executive vice president of Universal Music Group’s digital strategy unit. “We’d rather have 10 healthy revenue streams than one big revenue stream prone to disruption.”

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April 15, 2009

Somebody’s Looking For A Fight [11:03 am]

Maureen Dowd finished up with Hilary Clinton; now she’s on to Google, with this trenchant presentation that misses the point while disseminating all sorts of hogwash: Dinosaur at the Gate (pdf)

Google is in a battle royal over whether it has the right to profit so profligately from newspaper content at a time when journalism is in such jeopardy.

Robert Thomson, the top editor of The Wall Street Journal, denounced Web sites like Google as “tapeworms.” His boss, Rupert Murdoch, said that big newspapers do not have to let Google “steal our copyrights.” The A.P. has threatened to take legal action against Google and others that use the work of news organizations without obtaining permission and sharing a “fair” portion of revenue. But what’s fair will be hard to prove.

“So,” I ask Schmidt in a small conference room that, disturbingly, has an ejector seat. “Friend or foe?”

[...] Why can’t Google, which likes to see itself as a “Don’t Be Evil” benevolent force in society, just write us a big check for using our stories, so we can keep checks and balances alive and continue to provide the search engine with our stories? After all, Schmidt acknowledges that a lot of what’s on the Internet is “a sewer.” He told me people don’t come to Google for “crap,” but for what’s “useful.”

He declines to pony up money, noting that newspapers could opt out of giving their content to Google free and adding, “We actually like making our own money for obviously good capitalist reasons.”

He says: “The best way to get out of this is to invent a new product. That’s the way Google thinks. Incumbents very seldom invent the future.”

Yes, the publishing industry is in trouble. Yes, the Internet is having an effect. Yes, there are all sorts of peculiar complexities that arise during the cycles of creative destruction that mark a capitalist economy. But, as I have learned from folks within this industry, it’s not like the incumbents didn’t get any warning, and it’s not like they couldn’t have acted on what they saw happening around them. And there’s plenty of economic history that backs up the fact that this is what it means to live in a competitive, innovative economy — you have to work to stay ahead, and it just doesn’t look like the people running many of these companies wanted to work that hard.

Moreover, it’s not at all obvious that Maureen’s proposed solution, to tax those on the ascendant to sustain those on the downslope, really makes any sense. And we certainly know that there are all sorts of dangers associated with simply legislating rights that never before existed.

The closing bit is good, though — at least maybe Maureen will get to work:

When I ask [Google CEO Eric Schmidt] if human editorial judgment still matters, he tries to reassure me: “We learned in working with newspapers that this balance between the newspaper writers and their editors is more subtle than we thought. It’s not reproducible by computers very easily.”

I feel better for a minute, until I realize that the only reason he knew that I wasn’t so easily replaceable is that Google had been looking into how to replace me.

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April 4, 2009

BookSense, Contracts and Enclosure [11:16 pm]

Google Claims Orphan Books, Raising Alarm in Academia (pdf)

Now millions of orphan books may get a new legal guardian. Google has been scanning the pages of those books and others as part of its plan to bring a digital library and bookstore, unprecedented in scope, to computer screens across the United States.

But a growing chorus is complaining that a far-reaching settlement of a suit brought against Google by publishers and authors is about to grant the company too much power over orphan works.

These critics say the settlement, which is subject to court approval, will give Google virtually exclusive rights to publish the books online and to profit from them. Some academics and public interest groups plan to file legal briefs objecting to this and other parts of the settlement in coming weeks, before a review by a federal judge in June.

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April 2, 2009

“Patent Exhaustion” [8:28 am]

It appears that Static Control has scored some more points in its dispute with Lexmark, this time also possibly deflating some of the notions of “clickwrap” as well. See 5:02-517 & 5:04-84, Static Control v. Lexmark, from US District Court, Eastern District of Kentucky; March 31, 2009; Judge Gregory F. Van Tatenhove.

In more general terms, “The authorized sale of an article that substantially embodies a patent exhausts the patent holder’s rights and prevents the patent holder from invoking patent law to control postsale use ofthe article.” Id. According to the Supreme Court, then, the LGE-Intel agreement did not impose conditions on the sale of the patented products, but rather attempted to impose conditions on the use ofthose products after a fully authorized sale.

In its Motion to Reconsider, Static Control asserts that “[t]he patent exhaustion doctrine articulated in Quanta invalidates Lexmark’s effort to create patent-based use restriction through its postsale Prebate terms, as well as Lexmark’s attempt to enforce the Prebate terms under patent law against Static Control.” [R. 1422-2 at 6.] This Court Agrees. Like LGE, Lexmark does not impose any restrictions on the sale of its patented products-toner cartridges. Additionally, like LGE, Lexmark attempts to reserve patent rights in its products through post-sale restrictions on use imposed on its customers. This is what Quanta says Lexmark cannot do. As Static Control puts it, “LGE could not preserve its patent rights through a postsale restriction on an authorized sale, even when the subsequent purchaser was on notice of the asserted patent rights.” Now, neither can Lexmark.

[...] In sum, after Quanta this Court is compelled to reconsider and reverse a decision that at the time was consistent with the Federal Circuit’s articulation of the law. Because Lexmark’s patent rights in its toner cartridges were exhausted by the authorized, unconditional sales of the cartridges to end users, Lexmark’s attempt to impose single-use restrictions on the cartridges fails. The Prebate Program is invalid under patent law.

For a little background, see By Tearing Open That Cardboard Box, Are You Also Signing on the Dotted Line? (pdf). The text of the Lexmark “clickwrap” can be found in a footnote in the cited decision:

RETURN EMPTY CARTRIDGE TO LEXMARK FOR REMANUFACTURING AND RECYCLING

Please read before opening. Opening this package or using the patented cartridge inside confirms your acceptance of the following license agreement. This patented Return Program cartridge is sold at a special price subject to a restriction that it may be used only once. Following this initial use, you agree to return the empty cartridge only to Lexmark for remanufacturing and recycling. If you don’t accept these terms, return the unopened package to your point of purchase. A regular price cartridge without these terms is available.

Also from the decision, a primer on “patent exhaustion,” which is essentially an application of the notions of “first sale” in conjunction with the concept of patents:

In sum, the Supreme Court’s overview of its history of statements on the law of patent exhaustion [in Quanta] reveals that the Court has consistently held that patent holders may not invoke patent law to enforce restrictions on the post-sale use of their patented products. After the first authorized sale to a purchaser who buys for use in the ordinary pursuits of life, a patent holder’s patent rights have been exhausted.

Quanta itself reaffirms the Supreme Court’s articulation of the doctrine of patent exhaustion as set forth in the cases discussed in the previous section. It represents a change in the law, however, because the Court reasserted a broad understanding of patent exhaustion in the face of Federal Circuit case law that had narrowed the scope of the doctrine. That Federal Circuit case law had been followed as binding precedent by the district courts, including this one.

Or, in other words, this decision says that the constraints that have been creeping in to limit “patent exhaustion” are probably not going to survive, in this Court’s opinion.

We’ll see, of course

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“Piracy?” [8:02 am]

While I am confident that a breach of contract has been committed, it’s not clear yet that it’s even a crime. And “piracy?” Amazing how we manipulate language these days: Piracy Puts Film Online a Month Before Theater Opening (pdf)

The troubling leak — which some people initially dismissed as an April Fool’s Day prank — occurred at a time when media companies are working harder than ever to curtail digital piracy of content. Illicit recordings of films usually appear on the Internet shortly after their theater debuts, but leaks before the premiere dates are rare. Hollywood studios spend millions of dollars to track every step of the film production process to avoid such potentially costly leaks.

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