Prince and the Internet

Prince is known to dislike the Internet, or at least unauthorized publication of his work, via phones, tablets, etc. onto the Web or Internet. Over at NPR, Hasit Shah writes about that the reasons it’s a troubled relationship in Poor Lonely Computer: Prince’s Misunderstood Relationship With The Internet:

First is an attempt to preserve the purity of the live music experience, to encourage people to watch and absorb the show rather than their screens. Apart from a woman who used her phone flashlight to look for something she’d dropped, earning a stern word from an alert member of staff, everyone seemed to respect the rules. At one point, while he scrolled through his iPad, deciding what to play next, Prince playfully asked why everyone was looking at him. Later, I could only find a single, blurry image from the show on social media.

The other reason is Prince’s fierce commitment to protection of copyright. He does not take kindly to unauthorized recordings and images. There is surprisingly little to be found in places like YouTube. What does exist is usually unauthorized and only survives for as long as it takes to issue a takedown notice. Which Prince, or whoever he’s paying to handle this task, does with great regularity. There is plenty of Prince material on non-U.S. video sites, which are harder to deal with under American law.

The article describes Prince’s views, but issues and debates in copyright, too. Well worth reading in full.

Hiltzik on Harper Lee and HarperCollins

Over at the Los Angeles Times, columnist Michael Hiltzik writes about the withdrawal of mass-market rights to a classic:

The latest chapter in the saga has just been written. Following the author’s death at the age of 89 on Feb. 19, the Harper Lee estate has eliminated the mass-market edition of “To Kill a Mockingbird.” List-priced at  $8.99 by its publisher Hachette Book Group (but available for as little as five dollars and change), this is the edition through which a couple of generations of schoolchildren first encountered the book in class–and often encountered the joys of reading for the first time.

According to a March 4 notice issued by Hachette to booksellers and reported by the New Republic, permission for the mass-market edition has been withdrawn by the novel’s publisher, HarperCollins. (HarperCollins also brought out “Go Set a Watchman.”) Hachette can sell off its remaining copies, which it’s doing at a further discount, but henceforth “Mockingbird” will be available chiefly in a HarperCollins trade paperback edition, which lists for $14.99.

SeeThe latest news on ‘To Kill a Mockingbird’ shows how copyright law is totally broken @ LA Times.

Even believers in strong copyright protections will concede that enforcement of copyright – like any other claim against others’ actions (in this case, others’ printing of a novel) – may be contrary to a copyright holder or author’s interest.  Hitzlik continues:

Yet as we can see from the extinction of the mass-market paperback of “Mockingbird,” such extensions stifle the dissemination of creative works rather than encourage it. The squabble over the copyright to Anne Frank’s diaries, which we reported on here, also illustrates how the grip of copyright law leaves the control of creative works in the hands of people who may not share the desires of the works’ creators. Harper Lee has passed on, Anne Frank is long gone, and Walt Disney is represented in the marketplace by a corporation  that is hopelessly far removed from his artistic and even his business creation.

I’ll concede that it’s hard to see how Harper Lee would have wanted fewer people to read her books, but that is the likely consequence of the cancellation of the mass-market edition.

The implication, I think, is that copyright should be limited to the original author’s life, at the very most.

That would take us back to the copyright regime before 1976, before life-plus copyright terms.

There are few reasons to go back to 1976 (Bicentennial notwithstanding), but this may be one of those few.

Ruling Awarding DC Comics a Copyright to Batmobile Stands

One reads over at Ars Technica that although the Batmobile is not a character, the U.S. Supreme Court let stand a Ninth Circuit ruling that DC Comics can (and does) hold a copyright in the Batmobile.  The Ninth Circuit earlier found that

….in general, the Copyright Act affords no protection to “useful articles” or items with an intrinsic utilitarian function such as automobiles. Leicester v. Warner Bros., 232 F.3d 1212, 1216-17 (9th Cir. 2000). Defendant’s argument, however, ignores the exception to the “useful article” 4 Case 2:11-cv-03934-RSWL-OP Document 22 Filed 01/26/12 Page 4 of 5 Page ID #:192 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 rule, which grants copyright protection to nonfunctional, artistic elements of an automobile design that can be physically or conceptually separated from the automobile. Id. at 1219, n.3. As the facts are pled in the Complaint, the Court can make the reasonable inference that there may be non-functional artistic elements of the Batmobile that may possibly be separated from the utilitarian aspect of the automobile. Klarfeld, 944 F.2d at 585 (9th Cir. 1991)(holding that all reasonable inferences must be drawn in favor of the non-moving party in a motion to dismiss). As such, the Court finds that the Batmobile and all of its relevant embodiments are not, as a matter of law, excluded from copyright protection….

See, from the Ninth Circuit, the opinion in DC Comics v. Mark Towle, embedded below:

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Apple (and Friends) Consider 5th Amendment Defense in Encryption Case

Over at Ars Technica, David Kravets writes that in addition to a First Amendment defense against the federal government’s efforts to gain access to the data on an encrypted iPhone, the tech company will use a Fifth Amendment defense.  See,  Forget the 1st Amendment, Apple to plead the 5th in iPhone crypto flap.

The First Amendment defense is straightforward:

Apple will also argue in its legal papers to be filed by Friday that computer code and its cryptographic autograph are protected speech under the First Amendment and that the government cannot compel speech by Apple. Bloomberg reported:

Apple is expected to argue in federal court that code should be protected as speech. The company is fighting a government order requiring it to write software to help the Federal Bureau of Investigation unlock an iPhone used by one of the San Bernardino shooters. Apple views that as a violation of its philosophy. Just as the government can’t make a journalist write a story on its behalf, according to this view, it can’t force Apple to write an operating system with weaker security.

Here’s a sketch of the Fifth Amendment claim:

….the Fifth Amendment goes beyond the well-known right against compelled self-incrimination. The relevant part for the Apple analysis is: “nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

The idea here is that the government is conscripting Apple to build something that it doesn’t want to do. That allegedly is a breach of its “substantive due process.” The government is “conscripting a company’s employees to become agents for the government,” as one source familiar with Apple’s legal strategy told Ars. The doctrine of substantive due process, according to Cornell University School of Law, holds “that the 5th and 14th Amendments require all governmental intrusions into fundamental rights and liberties be fair and reasonable and in furtherance of a legitimate governmental interest.”

(One small nitpick, about my alma mater’s name: it’s the Cornell Law School (no one calls it anything else).

Kravets writes that the ACLU “is to file a friend-of-the-court brief in the dispute that cites the Fifth Amendment in Apple’s defense. “If this legal argument sounds novel, it’s because the government’s claim is unprecedented,” [ACLU staff attorney Alex] Abdo said in a telephone interview.”

The next court hearing is 3.22.16.


Stephen Witt’s ‘How Music Got Free’

There’s really no American who hasn’t felt the effects of digital technology. The last generation has transformed media, and the law has been – and still is – racing to catch up.

What, however, do we remember accurately even of changes that have swept all around us?

Above, I’ve embedded a interview with Stephen Witt, author of How Music Got Free: The End of an Industry, the Turn of the Century, and the Patient Zero of Piracy.

His book is a recounting of a tale we may know only in part, and only imperfectly.

The interview is well worth watching, and Witt’s book well worth reading.

Is Intellectual Property Really Property?

At the Cato Institute, there was a forum last week on the topic of whether intellectual property is property in a hard or soft sense:

Conservatives and libertarians are sometimes divided on the question of whether intellectual property is really property, and how much protection it deserves. On one hand, intellectual property is a product of mixing labor with material in the public domain, and it’s freely alienable, able to be bought, sold, licensed, or used as the owner sees fit. On this view, intellectual property is a bedrock natural right, central to economic and personal freedom, which the United States Constitution empowers Congress to protect. The contrary position, taken by some libertarians, views intellectual property as a government-conferred right that encourages political rent-seeking, restricts liberty, and thwarts innovation. Please join us as our panel of experts debates who has the better of the argument.

Here’s a recording of the forum:

Via Intellectual Property and First Principles @ Cato Institute’s Center for Constitutional Studies and the Federalist Society for Law & Public Policy Studies.

Prosecuted for Sharing a Master’s Thesis?

The Electronic Frontier Foundation (of which I am a member) shares the case of Diego Gomez:

Today and tomorrow [2.1 and 2.2], there’s an oral hearing taking place for Diego Gomez, a Colombian student being prosecuted for sharing another student’s Master’s thesis with colleagues over the Internet—something that thousands of researchers do every day. Diego faces the possibility of years in prison, thanks to the steep penalties for copyright infringement that Colombia implemented as part of a 2012 trade agreement with the United States.

EFF has long held that extreme criminal copyright rules chill people’s rights, especially in countries where copyright law doesn’t protect users’ freedom of speech through robust fair use exceptions….

SeeStand with Diego. Support Open Access @ EFF.

I’ll update as news becomes available.  The EFF, by the way, describes fair use correctly: fair use provisions are exceptions to another’s copyright, not standalone rights, or rights at all.

Entrepreneurial Bookseller Goes Back to the U.S. Supreme Court

Supap Kirtsaeng won a victory at the U.S. Supreme Court in 2013, and now he’s heading back to seek attorneys’ fees. Here’s the background:

Supap Kirtsaeng built himself a business on eBay buying textbooks in Asia and reselling them to students in the US. That practice made him the target of a copyright lawsuit by John Wiley & Sons, a large textbook company that didn’t like Kirtsaeng undercutting their US prices. Lawyers for Wiley said that they should control the right to import their copyrighted works.

Kirtsaeng won a resounding victory in 2013, when the Supreme Court said he was protected by the first-sale doctrine. He’d bought the books legally and could resell them, even if that involved moving the books across the border.

See, Supreme Court takes up copyright case over resold textbooks—again @ Ars Technica.

What’s the issue, now? Although copyright law allows Kirtsaeng to receive attorneys’ fees, it’s not mandatory that he receive them (and it’s uncommon, generally, to receive attorneys’ fees in America). The district court and the Second Circuit Court of Appeals both denied Kirtsaeng’s request for fees, but he argues that he would have received them had he filed suit in another federal circuit.

He’s consequently claiming a circuit split, and asking the U.S. Supreme court to close that split by applying a uniform standard for all America (and of course, a uniform standard that would award attorney’s fees in his case).

See, also, the petition of Supap Kirtsaeng and the brief in opposition of John Wiley & Sons (contending that there’s no circuit split at all), both documents by way of the ScotusBlog.

Monkey Copyright Case Is About More Than A Monkey‘s Copyright

Still in the public domain.

At first blush, a case in which People For the Ethical Treatment intervened on a monkey’s behalf to secure a copyright in a photograph that the money took (and receive monetary damages from its infringement)  is about the possibility of a monkey holding a copyright.  That’s not a particularly hard question, as the Copyright Act as now written cannot reasonably be understood to apply to animal photographers:

SAN FRANCISCO—A federal judge on Wednesday said that a monkey that swiped a British nature photographer’s camera during an Indonesian jungle shoot and snapped selfies cannot own the intellectual property rights to those handful of pictures.

US District Judge William Orrick was tasked with hearing a lawsuit brought by the People For The Ethical Treatment of Animals (PETA). The Animal rights group was trying to represent the 6-year-old monkey, Naruto, in a case brought against the human photographer, David Slater, and his self-publishing platform, Blurb of San Francisco….

The judge said during a brief hearing that he would dismiss the suit in an upcoming order, and at one point said PETA’s argument was a “stretch.”

“I’m not the person to weigh into this,” Orrick said from the bench in San Francisco federal court. “This is an issue for Congress and the president. If they think animals should have the right of copyright they’re free, I think, under the Constitution, to do that.”

SeeJudge says monkey cannot own copyright to famous selfies @ Ars Technica.  (At the bottom of this post, I have embedded Judge William Orrick’s order from 1.7.16.)

There’s more to this than a six-year-old primate, however: photographer David Slater, British photographer whose equipment Naruto used to snap a selfie, received a copyright in the photograph in Slater’s home country.

Although Slater’s copyright claim wasn’t at direct issue in this matter, it’s certainly another aspect of the episode.  Stater contends that it’s his copyright because of the work he did carrying his equipment, setting it up, etc.:

“The facts are that I was the intellect behind the photos, I set the whole thing up,” he said in an email. “A monkey only pressed a button of a camera set up on a tripod — a tripod I positioned and held throughout the shoot.”

That kind of copyright claim – one Slater contends is recognized in Britain – depends on both Slater’s human effort, and no subsequent legitimate effort that would supersede his own.

Over at Lexology, Nicholas O’Donnell observes that human effort (although not likely Slater’s efforts) might be enough to establish a copyright for a photographer.

So, for now, it’s no to the monkey, but maybe to the man.

Download (PDF, 109KB)

You Can Sing Now (More Safely)

It’s now (probably) legal to publicly sing the world’s most popular song, thanks to an opinion handed down yesterday by a federal judge in Los Angeles. After years of litigation, the court held that the lyrics1 of “Happy Birthday To You” are not restricted by Warner/Chappell’s copyright, handing a solid victory to a group of filmmakers producing a documentary about the song, not to mention the general public.

Via Happy Birthday To Everybody: Victory For The Public Domain (With An Asterisk) @ EFF.