all DRM implementations have some anti-consumer side effects. These side effects may include but are not limited to, geo-locking, tracking, device/format restrictions, interference with second-hand sales and fair use.

Last week a mountain was made out of a molehill which brought back into focus how antagonistic both sides have become. US-based e-book lender matching service LendInk was flooded with cease and desist letters from irate authors claiming that the site was a den of piracy.

The hosting provider Medialayer.com, fearing the Digital Millennium Copyright Act (DMCA), took the site offline.

Meanwhile, the authors involved boasted about shutting down a pirate site on kindleboards.com (a large kindle community site).

In reality, LendInk was acting like a book club and allowing members to discover books that they would like to read and introducing them to readers who already had the book. The match could then utilise the lending service provided by Amazon and Barnes & Noble to temporarily lend the book for 14 days. The lending service is legitimately covered by the terms and conditions of both services.

http://bit.ly/RMI21f

Are fan fiction and fan art legal? Yes if you follow a few not so simple rules….

Copyright is meant to cover the actual creative work, not abstract ideas. We have patents to cover ideas and copyrights to cover creative expression. However, that protection extends beyond the literal text of a work. Where fan works are concerned, we’re mainly interested in character copyrights. http://bit.ly/SdPXRf

Posner’s opinion is a victory for technology. The judge, writing for a three-judge appellate panel that also included judges Joel Flaum and Diane Wood, vacated a preliminary injunction against the “social bookmarking” site myVidster, which permits users to access videos recommended (or “bookmarked”) by other users. Posner distinguished myVidster’s model — which essentially embeds code from the recommended video to facilitate access to the video from the content originator’s server — from that of old-school file-sharing sites such as Napster and Aimster. In file-sharing, users upload and download actual files. MyVidster, by contrast, merely creates a link to the original site, even though that link permits free access to protected material. http://bit.ly/P2lkBt

When does inspiration violate copyright?

This ethical dilemma of inspiration versus borrowing is especially compelling to me as a young design professional at ZGF Architects. I have been fortunate enough to have the opportunity to work on several projects at the conceptual stage. In these early phases in a project, there’s significant examination of what the concept of the building wants to be. Ideas are generated by copious amounts of hand sketching, computer drafting, and model building. Some concepts come all at once and some crystallize only after weeks of hard work. *** Is this copying work? No. One is simply applying the successful ideas of others to create an entirely new idea of his own. http://bit.ly/NgB3t7

Copyright bot boots NASA rover vid off YouTube • Another example of a broken system.

NASA’s video coverage and pics are actually generally copyright-free, which made the overzealous bot takedown even more ironic as it pulled the video from the space agency’s channel for infringing on the rights of Scripps Local News.The problem, which took a few hours to fix, was flagged by online magazine Motherboard, which spotted a message on the video declaring: “This video contains content from Scripps Local News, who has blocked it on copyright grounds”. Incredibly, this isn’t the first time that Scripps has taken down one of NASA’s videos, as it was also responsible for copyright takedown of the video of space shuttle Discovery’s trip on a Boeing 747 from Cape Canaveral. http://bit.ly/P2lCIp

Scott Adams

An invitation to a wedding invokes more trouble than a summons to a police court.

William Feather

Timeo Danaos et dona ferentes (paraphrased in English as “Beware of Greeks bearing gifts”)

Virgil

For my next post I would like to invite you, the reader, to suggest areas of real estate and/or copyright law you would like to hear about. Just leave a note or link to a web news article in the comments section below. I’ll do my best to make some sense of it. Thanks for supporting this blog.

Tim O’Neill

― Voltaire

“Don’t find fault, find a remedy; anybody can complain”

― Henry Ford

Adapt or perish, now as ever, is nature’s inexorable imperative.

― H. G. Wells

I have been hammering away at the SOPA and PIPA problem for some time now. However, even if we are successful in the defeat of these bills, it will not change the fact that there is a very real piracy problem. As I have explained in prior entries the “law and order” approach employed for the last few decades is not working. Technology changes everything. Even the practice of law is beginning to peel away from the traditional model. You are never going to eliminate piracy, but you can take a large bite out of it by altering the traditional business model of the copyright owner.

I was reading the article Copyright Sage Bill Patry On What Content Owners Should Do Now
http://bit.ly/AfImA2 . First off they are not kidding when they use the word “sage” with reference to this fellow. I agree with just about everything he says in this interview, including his statement about content holders; “I want them to be wildly profitable because I love their stuff.” Books and movies are my favorite things. No profits, no books or movies. Patry makes several points worth mentioning.

1. Focus on Access Not Copies: “Control over the reproduction of books, music and movies was forever the cornerstone of the content industry’s business model. * * * content owners should focus on expanding access through technology like streaming rather than controlling copies. ‘The answer to the contraband stuff is flooding the market with authorized versions.’” Think Netflix, which has become profitable even when they don’t have access to all the latest content. I never watched Lost until I had Netflix. I had to watch about four years of it to catch up, but how awesome is that? Stream it until you drop.

    

2. Pricing Matters As Much As Piracy: “holding out for Western level pricing rather than making digital media available at prices that consumers in developing nations can afford. This means increasing the customer base and making money from a larger number of small transactions.” Tiered pricing is common in many industries. You are not going to get fifteen dollars for your dvd in many countries. It has to be a volume business, or the illegitimate copies will keep on coming.

    

3. Focus On The Product Not The Law: (Amen, Hallelujah, Amen.)
   

    

   Media products, like those in other industries, have a finite life cycle and it’s ultimately futile trying to extend that cycle after consumers have embraced a new era of products. Publishing industries, though, are fixated on passing stricter laws in an effort to wring more revenue out of dated products. This is a mistake. “You can’t control through laws a product cycle that is over. Laws aren’t going to help you force people to buy things they don’t want to buy in the first place.” Patry suggests it’s better to focus on providing consumers with new products in “formats, places and times” they will embrace. (Once again, think Netflix.) He also suggests that publishers concentrate on value-added features. They can do so for digital products but also for legacy products like hardcover books and music compilations. Patry explains he recently refused to buy a $30 DVD of Kung Fu Panda 2 because there is no added value to justify the cost. But he will happily shell out much more than that for the beauty and tactile joy of an elegant edition.

There is room for profit and common sense with copyright. The industry I beginning to understand that: passing SOPA and PIPA will not fly under the radar like the passing of the DMCA. Social media has wrested a good deal of control away from content holders on the message of piracy. Here is a new message from the American People: Adapt or die. Also, deferring to you as content holder on the state of piracy and the solution to the same is no longer possible. With SOPA and PIPA you have shown beyond a shadow of a doubt that you cannot be trusted.

“Any civil liberties agenda was a complete non-starter with Congress and the Obama administration,” said Cindy Cohn, the Electronic Frontier Foundation’s legal director. “They had no interest in finding any balance in civil liberties.” * * * All told, the government has seized more than 350 domains taken as part of a forfeiture program known as “Operation in Our Sites” that began a little more than a year ago. The authorities were using the same asset-forfeiture laws used to seize cars and houses belonging to suspected drug dealers.* * * Consider that October marked the 25th anniversary of the Electronic Communications Privacy Act, the law that allows the authorities to access your e-mail without a court warrant.* * * The silver anniversary of ECPA had prompted the nation’s biggest tech companies and prominent civil liberties groups to again lobby for an update to what was once the nation’s leading privacy legislation protecting Americans’ electronic communications from warrantless searches and seizures.

The upshot of this article is that our right to free speech and to be free from unreasonable searches is headed out the window.

SOPA’s most frightening flaw is the future it predicts
http://t.co/NCgfIPxp

The bill also gives individual intellectual property holders such as record labels and cable companies the ability to issue similar notices to ad networks and payment processors, demanding the same kinds of remedies. Under the Digital Millennium Copyright Act, copyright-holders can issue takedown notices for individual bits of content, such as infringing You tube videos. SOPA extends a variation of that power to cover entire Web sites. The onus is then on the blacklisted sites to prove the absence of infringing content. * * * The bill also covers more than just infringement (the act of streaming copyrighted content, a felony under SOPA, carries a five-year prison sentence). It also covers “facilitating” such content. That term is so poorly defined, however, it could well apply to a hyperlink on an entirely unrelated Web site, or a single Tweet. The potential for self-censorship is glaring, as is the potential for false positives – how many sites will nuke non-infringing content, or links to such content, just to be safe? * * * And because SOPA also prohibits tools that could be used to get around the Attorney General’s blockade, it may also mean that the same anonymity and address-spoofing software used by activists and protesters will become illegal to U.S. Internet users (many of these tools, incidentally, are funded by the U.S. government, which has no problem with protesters in Iran or China using them). That’s in part why a number of human rights organizations have come out against the bill.

This is irony at its best. We foster our ideal of free speech in Iran and China, while simultaneously putting it in the shredder here at home. Understand that if the “coronation” of IP occurs in the form of SOPA, you will live in a fiefdom not a democracy. Only a king or dictator can do away with ideas that don’t suit them without just cause, or any repercussion.

The article below contains several examples of copyright wrongfully employed to either: (1.) silence critics; or (2) attempt to drum competitors out of business by making false accusations. I had a case once where a company tried to trademark and copyright a “type” of Chinese tea. Apparently, there is a great deal of money to be made selling tea. My client changed the name of their product and website. The competitor still sued and would accept nothing less than my client closing its doors and ceasing business.  Ultimately the trademark office denied the Plaintiff’s application stating that the name was merely descriptive of a type of tea, and the case settled.  Unfortunately, that was after months of litigation in federal court.  So you can imagine my reticence to hand Plaintiffs like that tools such as SOPA.  Tools that will be abused, and initially impossible to defend. You may not get any due process until you are already ruined financially as a business. In the example above my client would have been forced to “cease business” under SOPA, because their website visibility and ability to process payments would have been gone. There are many examples of unfair competition (or censorship) executed under the cover of intellectual property enforcement.    

Dumb Examples of Copyright Enforcement: http://bit.ly/s9hF4f

"Paranormalist" Uri Geller got YouTube to remove a video of a 1993 PBS piece that Geller did not own which debunked the psychic’s special abilities. The poster’s YouTube account was also suspended.

Competitors of dancer/model/actress Elizabeth "Sky" Ordonez registered the trademark ELIZABETH SKY and got Twitter, MySpace and Facebook to take down the actress’ pages based on nonsense claims of trademark infringement.

Most recently, Warner Bros. admitted that it did not bother to confirm whether a slew of content that it asked cyberlocker website Hotfile.com to take down actually infringed on its copyrights. (In a rare show of support for its users, the content publisher sued Warner Bros. for violating the DMCA by making a false take-down request.

Given the DMCA’s great "success" in fighting online copyright infringement, Congress has decided that copyright owners (read: Hollywood studios) should have even more tools to fight copyright infringement.

Accordingly, SOPA provides online advertising platforms and payment processors with DMCA-like immunity from lawsuits if they voluntarily cut ties with accused copyright infringers.

This means that parties who previously liked to use the DMCA to hamper their innocent competitors with inconvenient two-week content "time outs" will be able to use SOPA to freeze legitimate business advertising and payments as well.

A great breakdown of what you should and should not do with the internet as it relates to intellectual property. Second, EFF has kicked off a project to demonstrate copyright’s relationship to censorship.

Five things you should know about intellectual copyright and online sharing  http://bit.ly/tCEG4n

Global censorship tracked by new project http://bit.ly/vKtwc4

Electronic Frontier Foundation (EFF), in collaboration with over a dozen civil society organizations worldwide, today launched Global Chokepoints at http://www.globalchokepoints.org to document how copyright enforcement is being used to censor online free expression in countries around the world.

A recent study sponsored by Columbia University’s The American Assembly project revealed the prevailing American attitude towards copyright infringement. The article can be found at this link http://bit.ly/uirbci. The study reveals a people who overwhelmingly oppose the goals of the Congress in seeking to pass the “Stop Online Piracy Act” (SOPA) and the “PROTECT IP Act. Some highlights of the study include:

• Solid majorities of American Internet users oppose copyright enforcement when it is perceived to intrude on personal rights and freedoms.69 per cent oppose monitoring of their Internet activity for the purposes of enforcement. 57 per cent oppose blocking or filtering if those measures also block some legal content or activity.
• Comparable majorities (56 per cent) oppose government involvement in “blocking” access to infringing material. This number increases to 64 per cent when the term “censor” is used.
• Disconnection from the Internet, in particular, is very unpopular, with only 16 per cent in favor and 72 per cent of Americans opposed.
• Legal media services can displace piracy. Of the 30 per cent of Americans who have ‘pirated’ digital music files, 46 per cent indicated that they now do so less because of the emergence of low-cost legal streaming services; among TV/movie pirates, 40 per cent

Despite the beliefs held by the American people, their Congress seeks to quietly hand the “keys to the kingdom” to corporations and others whose interests do not align with freedom of speech.  Companies such as Google reject this legislation, further AOL, Ebay, Facebook, Twitter, and Yahoo have already given written statements to lawmakers to oppose SOPA and PIPA. These companies rely on your ability to freely express your ideas or resell legally acquired goods. Ask yourself if there would be a YouTube, Facebook, or even Word Press if this legislation was passed a decade ago?

David Rohde explores the issue of censorship in China and compares it to the current move by Congress to pass SOPA and PIPA. http://reut.rs/u1c8aZ  Mr. Rhode observes that China has most of the world’s internet users and is the most sophisticated at censoring the ideas consumed by those users.

China’s 485 million web users are the world’s largest online population. And the Chinese government has developed the world’s most advanced Internet censorship and surveillance system to police their activity. * * * But the (SOPA and PIPA) legislation is far too broad and will unintentionally bring elements of China’s censorship regime to the United States.

Under the current proposed legislation this power will not only belong to the government, but to any content holder with an axe to grind. If the financial crisis in this country has taught us anything, it should be that the “bottom line” cannot be the sole guiding factor in making policy.  While I do not believe this country will ever be as repressive as China, America is in for a very rude awakening if these bills pass. As in China, your online expression may become a matter of comply or be silenced. Perhaps the most poignant point in Rohde’s article is how the Chinese blogger deals with government policy.

And in a sign of the model’s success, many Chinese bloggers and journalists do not raise sensitive topics online. Asked if he tried to hide his true identity when he was online, the blogger laughed.

“We don’t hide,” he said. “We use self-censorship.”

The name of the article in thin the New York Times is: Reselling of Music Files Is Contested – http://nyti.ms/t5vGyM 

Songs on the service, which is based in Cambridge, Mass., cost 79 cents, as much as 50 cents less than the price of new tracks at iTunes. ReDigi users also get coupons worth 20 cents for each song upload for sale, effectively reducing the cost of a track to 59 cents. ReDigi’s fee ranges from 5 to 15 percent, a spokeswoman said.

A new company by the name of Re Digi is attempting to bring the concept of the used vinyl record store into the digital age. I hope they are successful, and that they have a very large litigation budget.  Funny how there were never any issues with used video games, records, and compact discs, but a digital file!  Heaven forbid you should attempt to resell a legal digital copy.  The music industry argument is that in order to transfer a digital file you must “copy” it, and therefore it is infringing.  Although not specifically stated in the article this is sure to be accompanied by “these files were licensed and not sold, and the transfer violates the license agreement.”  Far too many courts have bought this argument and essentially delegated Congressional authority in the Copyright Act to any particular company who drafts a license agreement.  The Copyright Act provides for the first sale doctrine, or that once a particular copy is lawfully sold the copyright owner no longer has control over that copy. Ordinarily when a contract conflicts with a statute, the statute wins.

The first-sale doctrine is a limitation on copyright that was recognized by the Supreme Court of the United States in 1908 (see Bobbs-Merrill Co. v. Straus) and subsequently codified in the Copyright Act of 1976, 17 U.S.C. § 109. The doctrine allows the purchaser to transfer (i.e., sell, lend or give away) a particular lawfully made copy of the copyrighted work without permission once the copyright owner has been paid value for the same. This means that the copyright holder’s rights to control the change of ownership of a particular copy ends once ownership of that copy has passed to someone else, as long as the copy itself is not an infringing copy.

If the first sale doctrine does not apply to digital files, you the consumer will end up paying a lot more. Under the music industry theory you have merely rented the music on your iPod.  As with any rental, you can only use it in a limited way, and all rentals come to an end. It makes me laugh when no one seems to understand the implications of “the cloud.”  You won’t even have a digital copy of your software, music, or movies, as you will only access them from a remote server. The end game is to force you to pay a subscription to access any and all copyrighted works, and to eliminate any resellers.  Don’t want to upgrade your windows XP for an operating system that does not work for you? Too bad, because it has already been updated on the remote server.  Thank you for your monthly payment.      

Didn’t content owners learn anything from the MP3 player?  Give people what they want, and charge them a fair price for it. Make lots of money. No, instead lets desperately cling to the way things are until they collapse. Then Apple as a middleman is far more prosperous than you as the content owner. Good idea. The strategy for content owners has not changed since 1982, when MPAA President Jack Valenti testified that the invention of the VCR was “to the American film producer and the American public as the Boston strangler is to the woman home alone.”

Movie studios win lawsuit against Zediva http://bit.ly/uvtMDK  Zediva’s founders thought they had discovered a legal loophole for online viewing of movies by having customers rent DVDs physically located in the Silicon Valley. That way, Zediva wouldn’t have to wait for licensing deals with studios, which often withhold newer movies. *** U.S. District Judge John Walter in Los Angeles disagreed. He issued a permanent injunction Friday prohibiting the company from continuing its service.

Apparently shaking people down en masse for purported violations is not as profitable as it used to be.

Marshals ordered to seize $63,720 from Righthaven – News – ReviewJournal.com http://bit.ly/slriCS  U.S. marshals have been ordered to seize $63,720 from Righthaven LLC, a company that files copyright infringement lawsuits, to fulfill a judgment against the company. Lance Wilson, the clerk of federal court, this week signed a writ of execution that was requested by lawyers for Kentucky website poster Wayne Hoehn, who obtained the judgment for legal fees after winning a lawsuit Righthaven filed against him.

Copyright Troll Righthaven Teetering on the Brink | Threat Level | Wired.com http://bit.ly/sYHC0R

It is all about the brand name.  Taking a page from “big content,” copyright defenders in Congress rebrand PIPA the Enforcing and Protecting American Rights Against Sites Intent on Theft and Exploitation Act" or the E-PARASITE Act.  Cause if we say it enough ordinary citizens will have no sympathy for pirates, smugglers, or the e-parasite and we can slip this bill through.  The only problem is that under this act, you the ordinary citizen are easily converted into one or all of the above.

PROTECT-IP/E-PARASITE Act Gets A White House Petition | WebProNews http://bit.ly/rHeAjf  The bill would essentially require service providers to block access to certain sites, dependent on the accusation that they promote copyright infringement. The Senate-introduced PROTECT IP Act stated that the target of the new laws were sites that were “dedicated to infringing activities. Once the bill got into the House and was given its fancy new name, the reach was greatly expanded to target any “foreign infringing sites.”

This Congress seems determined to declare war on free speech. All you will need is money to remove opinions that are disagreeable or unflattering.  While the rationale for the bill is correct, the cure is not. 

Looks like Congress has declared war on the internet — “Tech News and Analysis http://bit.ly/vh0lzS the Stop Online Piracy Act, introduced in the House this week, would give governments and private corporations unprecedented powers to remove websites from the internet on the flimsiest of grounds, and would force internet service providers to play the role of copyright police.” .

House Copyright Bill Casts Dangerously Broad Net | Center for Democracy & Technology http://bit.ly/u8qNip

"Yesterday, key members of the House Judiciary Committee introduced a bill (H.R. 3261, the "Stop Online Piracy Act") that not only repeats that mistake, but dangerously extends the scope. Gone is any serious effort to narrowly target clear "bad actors" and to craft legislation that seeks to root out the "worst of the worst" — a phrase we have often heard from proponents of such legislation.  In its place is a bill that appears to impose sweeping new risks and responsibilities on websites offering legitimate online services and to give rights holders a powerful new club to wield against any online service they believe isn’t doing enough to police infringement.

Don’t Let Hollywood Break the Internet With the PROTECT IP Act! – Forbes http://onforb.es/rw3uBy

It’s the cure that is the problem. The PROTECT IP Act would allow copyright owners – movie studios and other content providers – simply to accuse a website of infringement, which could lead to that site being shut down by court order and entire links to the site being wiped clean from the Internet.  Any website with a hyperlink, such as Twitter, Facebook or a blog, would be subject to liability. More, non-infringing sites could be inadvertently shut down under the proposal. Indeed, the law is so far-reaching that it would force Internet providers like Comcast to block all access to the allegedly illegal site.

The potential for abuse by the notoriously litigious content industry is clear. Last year, when the government sought to shut down one child pornography site, it ended up affecting some 70,000 legitimate sites for several days, even notifying visitors that the sites – many of which were business sites – were purveyors of child pornography.