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Updated: 2013-11-23T17:59:03Z

 



Google Book Search is a Fair Use

2013-11-23T17:59:03Z

Back in 2005, I wrote that Google Print "may single-handedly keep the copyright-related blog world in business for the next few years." Eight years later, the Southen District of New York decisively granted Google's motion for summary judgment that the... Back in 2005, I wrote that Google Print "may single-handedly keep the copyright-related blog world in business for the next few years." Eight years later, the Southen District of New York decisively granted Google's motion for summary judgment that the book scanning project is fair use. The Authors Guild v. Google (SDNY, Nov. 14, 2013) The book search does not provide a competitive substitute for the actual book: "An 'attacker' who tries to obtain an entire book by using a physical copy of the book to string together words appearing in successive passages would be able to obtain at best a patchwork of snippets that would be missing at least one snippet from every page and 10% of all pages." 1. The Purpose and Character of the Use Google use of the scanned books' text to create a search index and display search result snippets is "highly transformative. Google Books digitizes books and transforms expressive text into a comprehensive word index that helps readers, scholars, researchers, and others find books." While books are used to convey information, Google uses the text differently: "Google Books thus uses words for a different purpose -- it uses snippets of text to act as pointers directing users to a broad selection of books. Similarly, Google Books is also transformative in the sense that it has transformed book text into data for purposes of substantive research, including data mining and text mining in new areas, thereby opening up new fields of research. Words in books are being used in a way they have not been used before. Google Books has created something new in the use of book text -- the frequency of words and trends in their usage provide substantive information. Google Books does not supersede or supplant books because it is not a tool to be used to read books. Instead, it "adds value to the original" and allows for "the creation of new information, new aesthetics, new insights and understandings." Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. at 1111. Hence, the use is transformative. Even though Google is a commercial enterprise, it isn't using the book scans in a commercial manner: "Here, Google does not sell the scans it has made of books for Google Books; it does not sell the snippets that it displays; and it does not run ads on the About the Book pages that contain snippets. It does not engage in the direct commercialization of copyrighted works." Thus, the first factor "strongly favors" a finding of fair use. Would the outcome here be different is Google ran ads against book content and searches? If it sold books through its own book store? 2. The Nature of Copyrighted Works Books are the paradigmatic protectable copyrighted works -- after all, copyright wouldn't exist but for books. But works of fiction are entitled to greater protection than non-fiction books. Most of the books scanned by Google are non-fiction. Further, the scanned books are published and available to the public, which favors a finding of fair use. 3. Amount and Substantiality of the Portion Used Google does scan the entirety of the works. However, full-text copying is required in order to be able to index and search the books. "Significantly, Google limits the amount of text it displays in in response to a search." Because Google scans the entire works, the third factor weighs slightly against a finding of fair use. 4. Effect of Use Upon Potential Market or Value Google's book search does not replace or compete with actual books. "Google does not sell its scans, and the scans do not replace the books. While partner libraries have the ability to download a scan of a book from their collections, they owned the books already -- they provided the original book to Google to scan. Nor is it likely that someone would take the time and energy to inp[...]



Disrupt my TV, please

2013-08-19T22:32:30Z

At Time's Techland Blog, Ben Bajarin writes: Why We Want TV to Be Disrupted So Badly. I was at the Consumer Electronics Show where [Tivo and ReplayTV] debuted, and their booths were as packed as any on the show floor.... At Time's Techland Blog, Ben Bajarin writes: Why We Want TV to Be Disrupted So Badly. I was at the Consumer Electronics Show where [Tivo and ReplayTV] debuted, and their booths were as packed as any on the show floor. Both offered such a simple premise: pause, rewind and fast forward live TV. In my opinion, these two companies paved the way for the disruption we will eventually see. Why? Because they showed us how much better our TV experience could be, and how crappy the technology was that our current television providers provided us with. I remember having discussions with executives at both TiVo and ReplayTV during their startup years. In particular, I remember a conversation with Anthony Wood, one of the founders of ReplayTV and the now founder and CEO of Roku. I asked Anthony why the current TV providers didn't think of this first. His answer, plain and simple, was "because they are not technology companies." So profoundly true. And the fact that they are not technology companies is the simple reason so many of us in the tech industry want TV to be disrupted. We know the technology and the experience can be so much better. No. The reason that the existing TV companies weren't thinking about innovating the TV experience is not because they are not technology companies (which they are), but simply because they don't have to. The market to deliver television and broadband is not competitive. The major cable providers don't compete with each other in the same market. Whether any particular household subscribes to television service through Comcast or Time Warner or Cablevision depends not on that household's choice to pick one cable provider over another, but by the local monopoly franchise granted to a cable provider. Cable companies are not competing with each other to win market share at the consumer level, but are competing with each other to win market share at the municipal level. They compete for the franchise right. So there's no need to push forward with technology to make the viewing experience better -- only to be generally competitive with other cable providers in other markets so as to prevent an overwhelming groundswell of desire to change. If the cable companies competed directly for the same customers, the quality of the product and experience would be far more customer friendly. In most regions, consumers have few other options for internet or television service than their local cable monopoly. DSL internet service from the phone company is no longer competitive with the speeds that cable modems can offer. Satellite television service requires installing a satellite dish and service can be disrupted by bad weather. In New York City, Verizon is supposed to provide competitive broadband/video fiber optic service to all households by June 30, 2014, but many areas of the city still lack the access to the competitive fiber optic network. NYC Public Advocate (and mayoral candidate) Bill Diblasio notes Verizon is not yet serving many areas of New York with Fios. Outside of the Fios service area, Google is wiring cities with fiber optics, and an impressively ambitious internet and TV service, but its rollout is limited to Kansas City (and then coming to Provo, UT and Austin, TX.) Otherwise, no cable company has to deal with a truly competitive service provider. Arms-length competition, where providers simply need relative parity to each other, doesn't force providers to innovate in the same way that they would with direct competition. And since Tivo and ReplayTV launched more than a decade ago, the DVR market has become less innovative and competitive. In more than seven years since Tivo introduced its first HD device (the Series 3), the Tivo software interface still is not fully updated to HD -- a substantial amount of the user interface in th[...]



Transparency May Be Required

2013-07-23T03:51:04Z

Apple's Developer Site was hacked. All Things D reports; Apple Developer Center Was Hacked; Site Remains Down While Company Overhauls Security In their notification, Apple notes that they are letting developers know about this attack "in the spirit of transparency."... Apple's Developer Site was hacked. All Things D reports; Apple Developer Center Was Hacked; Site Remains Down While Company Overhauls Security In their notification, Apple notes that they are letting developers know about this attack "in the spirit of transparency." Without knowing more information about what information was obtained through the data breach incident, there are a number of scenarios where state laws would require that Apple notify its users that their personal information may have been accessed by an unauthorized third party. In the US, each of the fifty states (as well as DC and Puerto Rico) has its own data breach notification law. Compliance is based not on the state in which an entity that stores personal information actually resides or stores that information, but, because we consider privacy to be a personal right, it is based on the home state of the person whose data is being stored. Most states define personal information to include: An individual’s first name or first initial and last name plus one or more of the following data elements: (i) Social Security number, (ii) driver’s license number or state- issued ID card number, (iii) account number, credit card number or debit card number combined with any security code, access code, PIN or password needed to access an account and generally applies to computerized data that includes personal information. Personal Information shall not include publicly available information that is lawfully made available to the general public from federal, state or local government records, or widely distributed media. In addition, Personal Information shall not include publicly available information that is lawfully made available to the general public from federal, state, or local government records. But, some states have a broader definition of personal information than this. Some states require that the state is notified in case of a data breach that affects a certain number of residents. Some states offer a safe harbor from notification if personal information is encrypted and not access in an unencrypted format. BakerHostetler has a straightforward and comprehensive summaries of data breach notification laws Data Breach Charts. With each of the states having a different requirement, Apple's notice to its developers wasn't solely in the spirit of transparency, but also in the spirit of legal compliance. A security researcher claims to have accessed secure Apple data after filing a bug report to encourage Apple to fix the hole that he found. iMore reports Security researcher claims to have reported bugs shortly before Apple took down its developer portal. Whether or not the data was leaked by a white hat hacker instead of a black hat hacker, that doesn't affect the fact that personal data was delivered to a third party, which requires the company storing the personal data to report it to the individuals, and depending on the number of people affected, also to certain states. Last week, the House Energy & Commerce Committee Subcommittee on Commerce, Manufacturing, and Trade held hearings on whether a federal data breach notification statute is necessary. Subcommittee Explores State of Data Breaches in United States Earlier this month, the California Attorney General released her report on data breaches affecting California residents in 2012, when 2.5 million Californians had personal information put at risk through an electronic data breach, but more than half of those citizens' would have been protected if the companies storing their personal data better encrypted the data. [...]



API Madness

2012-08-22T13:28:00Z

This week, the inter webs went all aflutter when Michael Sippey of Twitter announced the Changes coming in Version 1.1 of the Twitter API. In general, Twitter is seeking to more tightly control the user experience and discourage active development... This week, the inter webs went all aflutter when Michael Sippey of Twitter announced the Changes coming in Version 1.1 of the Twitter API. In general, Twitter is seeking to more tightly control the user experience and discourage active development of third-party client applications. Yet it seems like so much of the success of Twitter comes from the origin in lack of control. It was simple and the users built most of the conventions that Twitter relies on. For a service like Twitter that is so simple and basic, will attempting to make it into something different end up killing it off? Will App.net or something else be the Facebook to Twitter's Friendster or Myspace? Even though much of the use of Twitter is on its own website, it seems like the most active users, and the reason that the service became successful comes form client software, all of which came from third-parties. Twitter's official clients were originally written independently by Loren Brichter as Tweetie and then acquired (and then apparently left for dead.) As Twitter is trying to build itself into a business, it's also changing to dictate how the service is used, rather than building on the conventions that have evolved. Web communities tend to take on their own unique and individual character and personality. Some, like Metafilter or Reddit are largely supportive and collaborative. Others, like 4chan or Funnyjunk take on personalities that are more anarchic or antagonistic. The communities that tend to have stronger community values are the ones who tend to have stronger moderation enforcing community norms, whether that is individual moderators like at Metafilter or the community norms that Twitter's users established. In particular, the @username convention and the #hashtag convention both came from use, not from Twitter. Image uploads were supported by third-party clients long before Twitter launched it's own image hosting service. And while if hoping to extend the Twitter service and sell it to advertisers, it makes more sense for it to be a website rather than a service that works across different software. But it seems more likely to alienate the user and developer ecosystem that Twitter enables. And because Twitter as it is today provides tremendous value to the users and developers, trying to recapture some of the value from the users and developers, rather than sell those users' attention to advertisers seems like the better way to capture value, because it will encourage the users to use the site more. By carefully and narrowly designating what the Twitter service is, rather than listening to what the most active users want, is Twitter going to be driving its most active users and third-party developers away from its service? The most-active Twitter users seems to interact with the service mainly through Tweetdeck*, Tweetbot, or the rapidly stagnating Twitter apps rather than the website. *Yes, Twitter own Tweetdeck, but it seems to be a vastly different experience than the Twitter website. Developer Rules of the Road, Terms of Service and Display Guidelines, which will become display rules. Marco.org, Interpreting some of Twitter’s API changes: "I sure as hell wouldn’t build a business on Twitter, and I don’t think I’ll even build any nontrivial features on it anymore." [...]



Doubling Down

2012-06-19T03:03:18Z

Here's an example of how overly aggressive tactics blow up in one's face. And then taking that explosion and doubling down aggressively. Matthew Inman writes and publishes The Oatmeal, one of the funniest comics on the web. Users at Funnyjunk.com...

Here's an example of how overly aggressive tactics blow up in one's face. And then taking that explosion and doubling down aggressively.

Matthew Inman writes and publishes The Oatmeal, one of the funniest comics on the web. Users at Funnyjunk.com reposted many of Inman's comics. So Inman asked his readers how he should respond and then had some dialogue with the proprietor and denizens of Funnyjunk.

Then last week, Inman received a demand letter from Funnyjunk: FunnyJunk is threatening to file a federal lawsuit against me unless I pay $20,000 in damages. Alleging that The Oatmeal violated made false accusations of willful copyright infringement and infringed on Funnyjunk's rights under the Lanham Act, Funnyjunk's attorney demanded $20,000.

Inman's attorney replied, as did Inman, who used IndieGoGo to ask his readers to raise the $20,000 and donate it to the National Wildlife Foundation and the American Cancer Society (as well as send a crude cartoon to the owners of Funnyjunk.)

After Inman raised more than $100,000, Funnyjunk's attorney Charles Carreon went full Rakofsky to personally sue not only Inman, but also IndieGoGo, the National Wildlife Foundation and the American Cancer Society. The Oatmeal v. FunnyJunk, Part IV: Charles Carreon Sues Everybody: "On Friday, June 15, 2012, attorney Charles Carreon passed from mundane short-term internet notoriety into a sort of legal cartoon-supervillainy."

Wow.




Testing

2012-02-17T00:48:17Z

This is a test entry. Feel free to not get excited....

This is a test entry. Feel free to not get excited.




Once More With Feeling -- Fox v. FCC back at SCOTUS

2012-01-11T16:01:59Z

We've been here before, but now the Supreme Court is again hearing arguments on the FCC's indecency standards, in particular the First Amendment aspects and the rule on fleeting expletives and broadcast. Transcript: FCC v. Fox (Oral Arguments, Jan. 10,...

We've been here before, but now the Supreme Court is again hearing arguments on the FCC's indecency standards, in particular the First Amendment aspects and the rule on fleeting expletives and broadcast.

Transcript: FCC v. Fox (Oral Arguments, Jan. 10, 2012)

Lyle Denniston, SCOTUSblog Many options on TV rules, "With one Justice testing the ultimate constitutionality of government controls on broadcast TV, another trolling for an exceedingly narrow approach, two others suggesting that technology may be overtaking the constitutional dispute, one signing himself up for rigorous morality policing, and one whose vote may really be crucial staying entirely silent, the Supreme Court on Tuesday wandered widely in its new exploration of the state of profanity and nudity on television and radio. The lively argument in the latest round of that controversy even had a lawyer pointing out portrayals of nudity in the courtroom decorations above the Justices' heads."

Adam Liptak, The New York Times, TV Decency Is a Puzzler for Justices, "In a rollicking Supreme Court argument that was equal parts cultural criticism and First Amendment doctrine, the justices on Tuesday considered whether the government still had good reason to regulate cursing and nudity on broadcast television. The legal bottom line was not easy to discern, though there seemed to be little sentiment for a sweeping overhaul of the current system, which subjects broadcasters to fines for showing vulgar programming that is constitutionally protected when presented on cable television or the Internet."

Nina Totenberg, NPR: High Court Hears Arguments In FCC Indecency Case
"Inside the Supreme Court on Tuesday, Solicitor General Donald Verrilli, representing the Obama administration, said that Congress intended broadcast licenses to come with an obligation to meet certain decency standards -- standards that would provide a safe haven for family viewing."

Ruthann Robson, Constitutional Law Prof Blog FCC v. Fox Argument: On Naked Buttocks, Regulated Media, and the First Amendment "Both Fox (represented by Carter G Phillips) focused on the 'fleeting expletive' sanction based on Cher's statement at an award ceremony and ABC (represented by Seth Waxman) focused on a nudity sanction based on an episode of NYPD Blue, argued against the FCC (represented by the Solicitor General Verrilli)."




Compare/Contrast

2011-12-12T22:41:58Z

On Thursday morning, the House Judiciary Committee will have a full committee markup of the latest version of H.R. 3261 the Stop Online Piracy Act. Here's some initial analysis from Mike Masnick at Techdirt Lamar Smith Proposes New Version Of...

On Thursday morning, the House Judiciary Committee will have a full committee markup of the latest version of H.R. 3261 the Stop Online Piracy Act. Here's some initial analysis from Mike Masnick at Techdirt Lamar Smith Proposes New Version Of SOPA, With Just A Few Changes.

Today, comedian Louis C.K. released his latest standup special, filmed earlier this year at the Beacon Theater in New York, NY as a simple $5 direct download. No DRM, payment simply through Paypal. He's aware of the risk of piracy and believes that simply offering a product that's inexpensive and simple enough that it's a better customer experience.

I hosted a podcast discussion that I'll be posting later this week -- one of the topics we discussed was the fact that a torrent download offers the best viewing experience for any way of watching television programming. (None of the glitches of streaming, none of the commercials of broadcast and none of the interminably long menus of DVDs and Blu-Rays.) Probably the only other one that compares is iTunes (which has the disadvantage of being the most expensive way to watch lots of television.)

Is the best way to compete with casual infringements simply to offer the best experience?




The New Digital Divide

2011-12-08T17:27:54Z

Susan Crawford in the New York Times on The New Digital Divide: "While we still talk about “the” Internet, we increasingly have two separate access marketplaces: high-speed wired and second-class wireless. High-speed access is a superhighway for those who can...

Susan Crawford in the New York Times on The New Digital Divide:

"While we still talk about “the” Internet, we increasingly have two separate access marketplaces: high-speed wired and second-class wireless. High-speed access is a superhighway for those who can afford it, while racial minorities and poorer and rural Americans must make do with a bike path…

"Over the last 10 years, we have deregulated high-speed Internet access in the hope that competition among providers would protect consumers. The result? We now have neither a functioning competitive market for high-speed wired Internet access nor government oversight."

The market for dial-up internet access was competitive. The market for broadband access isn't. And without competition, incumbents can simply charge a prevailing rate. There's no incentive for competition, because it's not like a homeowner can simply switch from Time Warner to Comcast without moving to a new house that is in a Comcast service area. Competition spurs innovation and reduces rent-taking. A market needs either tight regulation or stiff competition. Home broadband providers are shielded form both.




Market Failure and Piracy

2011-10-25T18:19:30Z

The historical popularity of file sharing owes as much to access as to price. Back around the turn of the century when musical lovers were clamoring for the ability to buy legal downloads, but didn't have a way to do...

The historical popularity of file sharing owes as much to access as to price. Back around the turn of the century when musical lovers were clamoring for the ability to buy legal downloads, but didn't have a way to do that easier than piracy until Apple opened the iTunes store?

Dan Messer, Not All Bits, Warner Bros. Locking Down Harry Potter and Screwing Themselves "Hey, they tried to give someone, anyone, some money for this product and they were denied a legal avenue to do so at every turn. So, right or wrong, ethical or not, they acted upon the wantingness, the desire, created by Disney, and then removed Disney from the equation. Then they went out and gave that money to someone who would sell them some popcorn to snack on while watching the movie."

All else equal, music, TV and film buyers don't mind spending money on media when they know that it will be convenient and high quality. The hassles and risks of file sharing make sense when the paid alternative is both more difficult and more expensive or simply does not exist at all.




Termination Station

2011-08-18T03:23:02Z

Larry Rohter, The New York Times, Record Industry Braces for Artists’ Battles Over Song Rights: "Since their release in 1978, hit albums like Bruce Springsteen’s “Darkness on the Edge of Town,” Billy Joel’s “52nd Street,” the Doobie Brothers’ “Minute by... Larry Rohter, The New York Times, Record Industry Braces for Artists’ Battles Over Song Rights: "Since their release in 1978, hit albums like Bruce Springsteen’s “Darkness on the Edge of Town,” Billy Joel’s “52nd Street,” the Doobie Brothers’ “Minute by Minute,” Kenny Rogers’s “Gambler” and Funkadelic’s “One Nation Under a Groove” have generated tens of millions of dollars for record companies. But thanks to a little-noted provision in United States copyright law, those artists — and thousands more — now have the right to reclaim ownership of their recordings, potentially leaving the labels out in the cold." Here's the relevant section of the Copyright Act: § 203. Termination of transfers and licenses granted by the author (a) Conditions for Termination. — In the case of any work other than a work made for hire, the exclusive or nonexclusive grant of a transfer or license of copyright or of any right under a copyright, executed by the author on or after January 1, 1978, otherwise than by will, is subject to termination under the following conditions: (1) In the case of a grant executed by one author, termination of the grant may be effected by that author or, if the author is dead, by the person or persons who, under clause (2) of this subsection, own and are entitled to exercise a total of more than one-half of that author's termination interest. In the case of a grant executed by two or more authors of a joint work, termination of the grant may be effected by a majority of the authors who executed it; if any of such authors is dead, the termination interest of any such author may be exercised as a unit by the person or persons who, under clause (2) of this subsection, own and are entitled to exercise a total of more than one-half of that author's interest. (2) Where an author is dead, his or her termination interest is owned, and may be exercised, as follows: (A) The widow or widower owns the author's entire termination interest unless there are any surviving children or grandchildren of the author, in which case the widow or widower owns one-half of the author's interest. (B) The author's surviving children, and the surviving children of any dead child of the author, own the author's entire termination interest unless there is a widow or widower, in which case the ownership of one-half of the author's interest is divided among them. (C) The rights of the author's children and grandchildren are in all cases divided among them and exercised on a per stirpes basis according to the number of such author's children represented; the share of the children of a dead child in a termination interest can be exercised only by the action of a majority of them. (D) In the event that the author's widow or widower, children, and grandchildren are not living, the author's executor, administrator, personal representative, or trustee shall own the author's entire termination interest. (3) Termination of the grant may be effected at any time during a period of five years beginning at the end of thirty-five years from the date of execution of the grant; or, if the grant covers the right of publication of the work, the period begins at the end of thirty-five years from the date of publication of the work under the grant or at the end of forty years from the date of execution of the grant, whichever term ends earlier. (4) The termi[...]



Urban Cycling and Digital Copyright Norms

2011-06-09T20:27:26Z

This year, cyclists in New York City are contending with increased scrutiny from police officers, who are attempting to crackdown on any and all infractions of code. Bike Ticketing In New York, Widespread, On the Rise Eben Weiss, Bicycling Magazine,... This year, cyclists in New York City are contending with increased scrutiny from police officers, who are attempting to crackdown on any and all infractions of code. Bike Ticketing In New York, Widespread, On the Rise Eben Weiss, Bicycling Magazine, In Crackdown on Cyclists, History Repeats Itself: "Nevertheless, this perception in New York City of bicycles as dangerous and the people who ride them as bullies has not changed. In an unprecedented investment in cycling infrastructure that gave even Portland an inferiority complex, New York City has added hundreds of miles of bicycle lanes in the past few years. As a result, the number of bicycle commuters has doubled since 2005. So, it seems, has resentment, and people have been blaming bike lanes for everything from harming local retail businesses (uh, it couldn’t have anything to do with that little recession we’re having, could it?) to somehow making the streets more dangerous for children and senior citizens, who would presumably prefer to be mowed down by cars instead of bicycles." Filmmaker Casey Neistat was ticketed for riding outside of a bicycle lane, and made this amusing video to show how often bike lanes are obstructed: width="640" height="390" src="http://www.youtube.com/embed/bzE-IMaegzQ" frameborder="0" allowfullscreen> Also this week, this video highlighting the interactions between cyclists, pedestrians and cars: src="http://player.vimeo.com/video/24572222?title=0&byline=0&portrait=0" width="400" height="300" frameborder="0">3-Way Street from ronconcocacola on Vimeo. Cyclists in NYC have a reputation for riding aggressively, weaving in and out of traffic, ignoring red lights and riding dangerously and erratically. In large part, cyclists perpetuate these stereotypes because neither the city's infrastructure nor law enforcement allow cyclists to ride safely while also compling with the law. A bicycle rider is much smaller and slower than the cars, trucks and buses with which he would share the roads, and much faster than – and thus dangerous to – the pedestrians who use the sidewalks and crosswalks. Absent a complete network of dedicated, physically separated, safe bicycle lanes, cyclists need to ride more aggressively in order to attempt to feel safe riding among the much larger and faster vehicular traffic. Riders who started cycling in the city prior to the Sadik-Kahn bike lane bonanza were accustomed to riding aggressively without much regard to the letter of the law, because the infrastructure did not create a respected space for cyclists to behave prudently and responsibly as cyclists. Cyclists riding in traffic lanes were (and still are) treated by motorists as interlopers into their dedicated space. Cyclists riding on the sidewalk in violation of the law were doing so because it could be safer than riding alongside traffic. In at least two ways, copyright in the digital age also reflects a similar dynamic, with remixers and P2P file sharers acting without strict adherence to the law in order to route around the market and copyright regime knowing how to meet their needs. During the dawn of the era of digital music, users turned to P2P file sharing when they found it impossible to legitimately buy digital downloads. Before the launch of the iTunes Music Store, 8 years ago, there was no systemic legal way to buy individual songs for a reasonable price. Buyers who were willing to pay $0.99 for a hit single, but not $12 for the album including that single[...]



Not all is fair in bo.lt and links

2011-04-22T15:07:44Z

Brian Morissey, Digidaily, Publishing in the Remix Era "The latest exhibit is page-sharing service Bo.lt. The pitch is it’s “YouTube for web pages.” It sounds benign, but the results could be scary for publishers. Bo.lt lets anyone dump a URL... Brian Morissey, Digidaily, Publishing in the Remix Era "The latest exhibit is page-sharing service Bo.lt. The pitch is it’s “YouTube for web pages.” It sounds benign, but the results could be scary for publishers. Bo.lt lets anyone dump a URL into the platform, and then start editing a web page for sharing. The result: the New York Times story on President Obama’s Medicare panel? Change the headline. Better yet, take out the comments. Also, let’s strip out the related. Now it’s ready for sharing to the world -- on a user's own Bo.lt URL. Oh, and there’s no easy way for The New York Times to block its content from Bo.lt." Or better yet, take a look at the same article, shared on Bo.lt by David Berkowitz, More BS from Digiday: Publishing in the Remix Era. Now go back to the original. And the bo.lt link. Who expects this to last long in its present form? Bo.lt appears to be copying the entire web page, reproducing the entire work, presenting it in its original form and letting users modify the content, creating a derivative work. Can anyone make a non-frivolous argument that this specific behavior is protected by fair use? The purpose and character of the use is commercial. Even though users may have an academic or creative purpose for using the service to transform works, on a large scale basis, the service is backed by venture capital, so it would seem to be meant to make money without any specific pedagogical or analytical goals. The nature of the works copied will be articles by major newspapers, magazines and literary sites. (Who else would we expect to bring any eventual litigation?) The amount of the work copied is generally the entire work, which isn't always a barrier to a finding of fair use, but not particularly favorable for Bo.lt. Is the work transformative? There is an interesting application for linking and commenting that might draw the ire of web publishers that should be protected by fair use, but Bo.lt is probably insufficiently transformative. Yes, it allows its users to change the text of pages they share, but it doesn't recontextualize the copyrighted material in any significant way. The pages capture the entire page source site, rather than just article text to put into a new context. The annotations are integrated with the text to change the text into a derivative work, rather than to stand alone in any way as annotations. And even if this kind of reproduction was judged to be fair use, Bo.lt is likely to run head-on into trademark infringement. Since the page reproduces logos and branding completely with only subtle hints to the user-generated changes, readers are likely to be confused about Since many Internet users are now used to link shorteners, particularly for Twitter users, there can be some confusion as far as what is a canonical link and what is reframing. SharedCopy is a more interesting service, because it allows its users to annotate web pages with more transparency. Even though SharedCopy is copying entire web pages, it is distinguishing the annotations from the original author's text. However, it is copying entire pages and republishing articles outside of login/paywalls for users to share. Is it necessary for SharedCopy to copy the entire web page to allow users to link, annotate and comment on pages? Flipboard and Readability are also doing interesting things with contextualizing and reformatting full text of web pages, but generally [...]



Surprise: Authors Like Copyright

2011-02-16T03:10:55Z

The Authors Guild, via Scott Turow, Paul Aiken and James Shapiro, published an Op-Ed in the New York Times today wondering if Shakespeare would have been able to succeed as a playwright and author without the ability to earn money...

The Authors Guild, via Scott Turow, Paul Aiken and James Shapiro, published an Op-Ed in the New York Times today wondering if Shakespeare would have been able to succeed as a playwright and author without the ability to earn money from his works: Would the Bard Have Survived the Web? "At day’s end, actors and theater owners smashed open the earthenware moneyboxes and divided the daily take. From those proceeds dramatists were paid to write new plays. For the first time ever, it was possible to earn a living writing for the public. Money changed everything. Almost overnight, a wave of brilliant dramatists emerged, including Christopher Marlowe, Thomas Kyd, Ben Jonson and Shakespeare. These talents and many comparable and lesser lights had found the opportunity, the conditions and the money to pursue their craft."

Shakespeare created his works in late sixteenth and early seventeenth centuries, a century before the Statute of Anne and the first copyright. So copyright wasn't the motivator for Shakespeare to write, but the ability for the author and the performers to make a living from their work.

Julie Hollar, writing for FAIR notes that Shakespeare's work may not have even been possible due to copyright: Would the Bard Have Survived U.S. Copyright Law? "Shakespeare's classics Romeo and Juliet, Othello, As You Like It and Measure for Measure, among others, were based on works of fiction published in the decades before Shakespeare's career. They thus would have been illegal under current U.S. copyright law, which keeps works out of the public domain for 70 years after the death of the author, or a total of 95 years for works for hire. Copyright protection for decades after Shakespeare's death would have had no impact on his ability to produce work and limited impact on his incentive to do so--while the inability to retell contemporary stories would have directly restricted his creativity."

But if Shakespeare published a full century before copyright and yet somehow managed to have sufficient incentive to create, doesn't that mean that copyright is far from the only incentive to create?

In the centuries since the Statute of Anne, copyrights now belong more to entities other than individual authors. Individual copyrights are increasingly packaged as assets to generate profits, often for entities who purchased the copyright from the author. The question isn't not: how to we manage to ensure that copyright owners maximize their profits? Rather, shouldn't the Authors' Guild be asking, how do we create incentives for authors? How do we use copyright to maximize value to our Copyright has managed to do this, but is a consistent movement towards stronger copyrights a movement towards creating a vibrant culture?




Second Circuit: FCC Indecency Rules Are Still Too Vague

2011-01-05T22:33:43Z

The Second Circuit ruled this week that ABC stations should not be fined for violations of the prohibition on broadcast indecency for an episode of NYPD Blue "that depicted an adult woman’s nude buttocks for slightly less than seven seconds."...

The Second Circuit ruled this week that ABC stations should not be fined for violations of the prohibition on broadcast indecency for an episode of NYPD Blue "that depicted an adult woman’s nude buttocks for slightly less than seven seconds." The court found that the FCC regulations prohibiting indecent speech on broadcast that were unconstitutionally vague in Fox v. FCC were still too unconstitutionally vague. ABC v. FCC

"Indeed, there is no significant distinction between this case and Fox. In Fox, the FCC levied fines for fleeting, unscripted utterances of 'fuck' and 'shit' during live broadcasts. Although this case involves scripted nudity, the case turns on an application of the same context-based indecency test that Fox found 'impermissibly vague.' According to the FCC, 'nudity itself is not per se indecent.' The FCC, therefore, decides in which contexts nudity is permissible and in which contexts it is not pursuant to an indecency policy that a panel of this Court has determined is unconstitutionally vague. Fox’s determination that the FCC’s indecency policy is unconstitutionally vague binds this panel." (Citations omitted.)

David Oxenford, Broadcast Law Blog: Court of Appeals Throws Out FCC Fines in NYPD Blue Case "We have likely not heard the end of the indecency story yet. These decisions may yet end up back in the Supreme Court for consideration of the constitutional issues. So stay tuned as these issues are sorted out."

Adam Bonin, Daily Kos: Courts: FCC can't ban partial nudity from primetime, "Another victory for the First Amendment, and a defeat for the pearl-clutchers who still insist that America will go to ruin if there's an occasional flash of nudity on network tv."