Intellectual property and the diamond skull

A group of artists have started a campaign in reaction to reports of Damien Hirst's dispute with a teenager who copied some images of his diamond skull. The Independent has pitched in with God save the Damien Hirst rip-off industry!

EU legal affairs committee approve copyright term extension

The EU parliament's legal affairs (JURI) committee has, as expected, approved a proposal to extend the term of copyright in sound recordings to 95 years.

"

Music copyright to be extended to 95 years

Copyright term for music recordings must be extended from 50 years to 95 years, says legislation approved on Thursday by the Legal Affairs Committee.

Increasing the term of copyright protection would ensure that performers and producers continue to receive royalties for 95 years from the first publication or performance of their song, according to a Commission proposal backed by the committee.

Ensuring that copyright extension benefits performers

The approved report, drafted by Brian Crowley (UEN, IE), amends existing legislation to increase the copyright protection for music recordings to 95 years.

To ensure that performers fully enjoy the additional royalties deriving from copyright extension, the committee amended the original text so as to prevent the use of previous contractual agreements to deduct money from the additional royalties.

A fund for session musicians

A dedicated fund for session musicians was also approved by the committee. This fund would be financed by contributions from producers, who would be obliged to set aside for this purpose, at least once a year, at least 20% of the revenues gained from the proposed extension of copyright term.

Committee members also amended a provision relating to this fund so as to give collecting societies, which represent performers' and producers' interests, the right to administer the annual supplementary remuneration.

Copyright extension for audiovisual works, too?

The committee also asked the Commission to launch an impact assessment of the situation in the European audiovisual sector by January 2010, with a view to deciding whether a similar copyright extension would benefit the audiovisual world.

Review legislation after three years

Finally, MEPs ask the Commission to submit three years after the entry into force of the new legislation, and every four years thereafter, an assessment of whether the copyright extension has in fact improved the social situation of performers.

12/02/2009

In the chair: : Giuseppe GARGANI (EPP-ED, IT)

Procedure: co-decision, 1st reading
Plenary vote: March II (Strasbourg)"

The usual guff about protecting poor performers is being trotted out and the music industry are, naturally, very gracious in victory. The ceaseless surreality of policy making in this area is wearing me down. I need to get out of IP geekery and start doing something a bit more productive with that portion of my time.

What's the law?

Daithí Mac Síthigh has drawn my attention to a fascinating case the upshot of which is that laws are being created so quickly and voluminously and enacted through secondary legislation in such a way that even the legal profession cannot keep up. As Daithí says, Lord Toulson deserves a big pat on the back for being blunt about it:

"

71. The Government's response to that recommendation was presented to Parliament in March 2008, CM 7320. It stated as follows:

"35. Her Majesty's Stationery Office (HMSO) and the Statutory Publications Office (SPO), which produces the Statute Law Database, are to work together to create a single, powerful and free to access online legislation service. The launch of the SLD has been a milestone in government's online legislation publishing.

36. Over the last two years HMSO, via the OPSI website (www.opsi.gov.uk) has embarked on wide ranging improvements to how legislation is published online, taking account of key usability features for layout and navigation. This work is being undertaken as part of 'The Transforming Legislation Publishing Programme'. The aim has been to present legislation in the most accessible and usable way, whilst maintaining the traditional strengths of immediacy and accuracy. One of the benefits is that it affords the opportunity to provide links to related information. Initially these links will be to the Explanatory Note for Acts or the Explanatory Memorandum for Statutory Instruments. Alongside this is also published an ATOM feed for the piece of legislation. This provides visitors with an easy way to keep up to date with subsequent additions to the website, like the addition of Explanatory Notes for an Act, and also the enacting or making of other related legislation such as Commencement Orders or, longer term, amending legislation. In future HMSO will be adding explicit links to Commencement Orders, and where legislation implements an EU Directive, a link also to that Directive.

37. HMSO/OPSI and SPO will continue to work together and with government's online legislation visitors, to improve the service and ensure that UK legislation is available in a high quality and straight forward terms, with a freely available and powerful search."

72. The aim is laudable, indeed imperative, but there is a long way to go and meanwhile the volume of legislation advances apace. It is a serious state of affairs when the relevant legislation is not accessible, the Government's own public information website (OPSI) is incomplete and the prosecution in an excise case unintentionally misleads the court as to the relevant Regulations in force. Although the problem has in this case arisen in an excise context, it is part of a wider problem of substantial constitutional importance."

Daíthí sums up very nicely:

"Toulson LJ makes four points, which I paraphrase as follows:

• The majority of legislation is secondary legislation.
• The overall volume of legislation has increased and is still increasing.
• The legislation is spread across various statutes and statutory instruments.
• There is no straightforward way for an individual to find out what the law in force is."

The government is churning out laws like they're going out of fashion, in secondary legislation, and hiding them in places not even lawyers, let alone ordinary individuals can find. So the next time you hear some minister mouthing pernicious nonsense like "nothing to fear nothing to hide" or "it's needed to fight terrorism" just ask yourself if you can really be sure you haven't broken any laws today.

Second Life, the academic and the Skinninggrove jetty

This is terrific. Steve Thompson at the University of Teeside helped the residents of a small village called Skinningrove with their ongoing campaign to get an old jetty rebuilt by getting the children at a local secondary school to construct a prototype in Second Life. And they all made a film about the opening of the virtual jetty in Second Life, complete with specially written songs sung by the children of the village primary school:


Find more videos like this on The Digital Village Social Network


Teachers TV did a 20 minute piece about the project too, largely focused on the work of the secondary school kids - photographing the old jetty from all angles, learning how to use Second Life, working together designing and constructing the model of the proposed new jetty in Second Life - available at Steve Thompson's blog.

Now I've long been a skeptic about all the hype surrounding Second Life and education. I think the really valuable ed tech stuff is happening elsewhere and all around us. But this is a great example of how virtual worlds, with a bit of thought and effort, can be used in practical ways in education, rather than assuming - like that old chestnut about 'a computer in every classroom' - that it will somehow work miracles just by being there. Modern technology in education, in this case, facilitating community service, photography, observation, analysis, design, development, ICT, engineering, decision making, cooperation - engaging a variety of practical skills and cognitive processes. Great stuff!

Thanks to my colleague Steve Walker for the link.

From data retention to local authority spying

The Telegraph is reporting that the UK government is implementing the EU data retention directive (EU Directive 2006/24/EC) in such a way as to facilitate further spying by local authorities. Now let's just read paragraph 1 of article 1 of the directive (scroll down to the third page of the pdf version):

"1. This Directive aims to harmonise Member States’ provisions
concerning the obligations of the providers of publicly available
electronic communications services or of public communications
networks with respect to the retention of certain data which are
generated or processed by them, in order to ensure that the data
are available for the purpose of the investigation, detection and
prosecution of serious crime, as defined by each Member State in
its national law."

A Home Office minister rolled out the old soundbites about fighting terrorism again (though not the "war on terror" now we're in post Bush ObamaWorld). But what exactly is it about routine local authority access to communications data that serves the "purpose of the investigation, detection and prosecution of serious crime, as defined by each Member State in its national law"? And has the government not learned anything at all from the routine controversial use of the Regulation of Investigatory Powers Act by certain councils to spy on local residents?

Thanks to HJ Affleck via the FIPR list for the pointer to the Telegraph article.

PS Just worth noting the kinds of data we're talking about here - all phone-calls, email and internet traffic - from article 5 of the directive:

"1. Member States shall ensure that the following categories of
data are retained under this Directive:

(a) data necessary to trace and identify the source of a
communication...

(b) data necessary to identify the destination of a
communication...

(c) data necessary to identify the date, time and duration of a
communication...

(d) data necessary to identify the type of communication...

(e) data necessary to identify users’ communication equipment
or what purports to be their equipment...

(f) data necessary to identify the location of mobile communication
equipment"

Update: Having now read the draft regulations I expect the Telegraph writer is concerned about

"Access to retained data

7. Access to data retained in accordance with these Regulations may be obtained only—

(a) in specific cases, and
(b) in circumstances in which disclosure of the data is permitted or required by law."

The government is also going with a 12 month retention period rather than the significantly shorter periods suggested by ISPs and civil rights organisations.

"The retention period

5. The data specified in the Schedule to these Regulations must be retained by the public communications provider for a period of 12 months from the date of the communication in question."

Update: Councils have had the facility to spy under RIPA for years. So the Telegraph is conflating several things in this story and not particularly accurately. I was a bit quick to jump on the "criticise the idiots in government" bandwagon again. The regulations are not good from a data retention perspective. Period. The council spying thing was a bit of a red herring here.

Authors Guild object to Kindle 2 read aloud feature

From the WSJ:

"Some publishers and agents expressed concern over a new, experimental feature that reads text aloud with a computer-generated voice.

"They don't have the right to read a book out loud," said Paul Aiken, executive director of the Authors Guild. "That's an audio right, which is derivative under copyright law."

An Amazon spokesman noted the text-reading feature depends on text-to-speech technology, and that listeners won't confuse it with the audiobook experience. Amazon owns Audible, a leading audiobook provider."

This reminds me of the license which came with the 1st edition e-book version of Alice's Adventures in Wonderland (a book in the public domain) which read:

"This book cannot be read aloud."

(No, I'm not making it up.).

Lobbyists try to get copyright into Obama's stimulus package

You really do have to hand it to the entertainment industry's lobbyists - they are very good at their job. The latest efforts consist of an attempt to get a copyright protection provision inserted in President Obama's stimulus package. Public Knowledge says:

"Hollywood’s lobbyists are running all over the Hill to sneak in a copyright filtering provision into the stimulus package. The amendment allow ISPs to “deter” child pornography and copyright infringement through network management techniques. The amendment is very, very controversial for a couple of reasons:

1. First, infringement can’t be found through “network management” techniques. There are legal uses for copyrighted works even without permission of the owner.

2. Second, it would require Internet companies to examine every bit of information everyone puts on the Web in order to find those allegedly infringing works, without a hint of probable cause. That would be a massive invasion of privacy, done at the request of one industry, violating the rights of everyone who is online."

Public Knowledge is suggesting people start calling their senators but I can't see abstract intellectual property or privacy debates getting in the way of the need to do something... it's highly unlikely to be a deal breaker in these recessionary times.

Update: the letter PK is suggesting citizens send to their representatives:

"It is my understanding that your office has been asked to amend the part of the stimulus package that deals with public grants to spur broadband deployment. Senator Feinstein has proposed a "noncontroversial" amendment that would allow Internet Service Providers to inspect its subscribers' Internet connections to filter out copyright infringement, under the guise of "network management." Copyright filtering is outside of the capabilities of network management, would be a massive invasion of privacy and would prohibit my lawful use of copyrighted works -- for purposes of education, criticism, and commentary.

This amendment is very controversial. I urge you to oppose this copyright filtering amendment to the broadband stimulus."

Update 2: the copyright amendment hasn't passed (yet at least).

Apple v PsyStar update

The judge in the Apple v Psystar case has handed the clone maker an interim victory, agreeing the company can pursue it's case for copyright misuse. But he's also warned both parties that they need to cut the tit for tat legal manoeuvres and prepare for a substantive trial.

Ars Technica, cnet and ComputerWorld all have reports.

Apple had originally sued PsyStar for using and selling the OS X Operating System (“Mac OS”) in clone machines. The judge, Hon. William Alsup, then threw out PsyStar's antitrust claims against Apple in response to the original lawsuit (see Justia for the details). So PsyStar came up with the rather clever copyright misuse argument - 'we bought the Mac OS from Apple and they're saying we can't play with it unless we buy their hardware to use with it too.'

"PsyStar alleges that Apple has improperly leveraged its Mac OS copyrights in order to gain exclusive rights with respect to Mac OS-compatible computer hardware systems not granted in the Mac OS copyrights, in two general respects.

First, PsyStar alleges that Apple has wrongfully extended the scope of its Mac OS copyright via its End User License Agreement (“EULA”), which specifically required that consumers install Mac OS only on Apple-labeled computers, as well as by embedding certain technical barriers to interoperability in Mac OS — kernel panic and infinite loops (Countercl. ¶¶36–51).2

Second, PsyStar alleges that Apple is leveraging its Mac OS copyrights by improperly asserting claims under the Digital Millennium Copyright Act, 17 U.S.C. 1201 et seq. (“DMCA”). PsyStar alleges, in effect, that Apple is improperly extending its Mac OS copyright into the computer hardware market by intimidating potential competitors into avoiding the market with dubious DMCA claims (Countercl. ¶¶ 52–56).

The proposed counterclaim asserts four claims for relief, all of which seek a declaratory judgment that Apple’s Mac OS copyrights are unenforceable. The first claim alleges copyright misuse based on Apple’s exclusive licensing of Mac OS in its EULA. The second claim alleges copyright misuse based on Apple’s use or threat of DMCA claims against potential competitors for Apple’s Mac OS -based computers. The third claim alleges a violation of California’s unfair competition laws predicated on the alleged copyright misuse related to the EULA. The fourth claim alleges a violation of California’s unfair competition laws predicated on the alleged copyright misuse related Apple’s DMCA claims."

Apple argued in response that PsyStar lost with the antitrust tactics and shouldn't be allowed a second chance to concoct a case on copyright misuse grounds. Apple also argued that copyright misuse could only be used by PsyStar as a defense against copyright infringement and not as a counterclaim against Apple. The judge is clear in rejecting this argument (page 4, line 17):

"Apple contends that copyright misuse may only be asserted as a defense, not as a counterclaim. This order is unconvinced, however, that misuse may never be asserted as a counterclaim for declaratory relief. PsyStar may well have a legitimate interest in establishing misuse independent of Apple’s claim against it, for example, to clarify the risks it confronts by marketing the products at issue in this case or others it may wish to develop. Moreover, if established, misuse would bar enforcement (for the period of misuse) not only as to defendants who are actually a party to the challenged license but also as to potential defendants not themselves injured by the misuse who may have similar interests."

So not only Psystar, but other organisations, not party to the lawsuit, might get the right to sell computers with the Mac OS, if PsyStar wins the case. The judge mentioned in the earlier part of the order that "Few competitors, if any, other than PsyStar, however, currently sell computers compatible with Mac OS" and the Apple legal team were presumably attempting to bury that particular can of worms with the efforts to close of the copyright misuse counterclaim. He draws parallels to patent misuse which can be used in counterclaims and "finds no reason to reject plaintiff’s misuse counterclaims as necessarily futile."

Interestingly enough the Grokster case get a mention in a footnote if only to give Judge Alsup the opportunity to disagree with part of one of the decisions in that protracted saga which suggested copyright misuse could not be used as the basis of a counterclaim.

"Insofar as other district courts have concluded that the doctrine may not be asserted as a counterclaim, this order respectfully disagrees.3
[...]
3 See, e.g., Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 269 F. Supp. 2d 1213, 1225–26 (C.D. Cal. 2003), aff’d, 380 F.3d 1154, vacated on other grounds by Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005); Ticketmaster L.L.C. v. RMG Technologies, Inc., 536 F. Supp. 2d 1191, 1199 (C.D. Cal. 2008)."

It has to be said that the facts were completely different in that instance and I would have thought, therefore, clearly distinguishable.

"This order... rejects the argument that misuse may never be asserted as a counterclaim and declines to find PsyStar’s misuse counterclaims futile on that basis.

Apple further argues that amendment would be futile because the proposed amended counterclaims fail to plead sufficient facts to support the claim. In its proposed amended counterclaims, PsyStar alleges that Apple leveraged Mac OS copyrights to secure exclusive rights not within the scope of the monopolies granted by those copyrights, i.e., to Mac OS compatible computer hardware systems. The complaint avers that Apple accomplished this through its EULA, through allegedly spurious litigation and by other means.

Apple responds that it is within its rights to determine whether, how or by whom its software is reproduced and how it is to be licensed, distributed or used. This may ultimately prove to be true. Apple, however, identifies no reason to bar the claims as matter of law at the pleading stage. This order declines to find the claims futile."

Apple also argued the precedent the claimed was set in the Triad case:

"Apple cites Triad Systems v. Southeastern Express Company, 64 F.3d 1330 (9th Cir.1995). Triad was a seller of computer systems that performed sales, inventory and accounting tasks for auto parts stores... Triad and Southeastern competed in the business of servicing Triad computers."

Southeastern argued copyright misuse but the court sided with Triad. But Judge Alsup here says the Triad case is not conclusive in the matter of barring access to a copyright misuse counter claim. Apple also argued that the judge said Psystar had no case on antitrust grounds so they should have no case on copyright grounds either but the judge gives that argument short shrift:

"Apple also cites language from the November 2008 order in this case granting Apple’s motion to dismiss PsyStar’s counterclaims. The order addressed the antitrust issues then before the court; it did not opine one way or the other on the merits of Apple’s instant copyright claims or PsyStar’s misuse allegations. For all of these reasons, PsyStar’s motion for leave to amend is granted with respect to the proposed misuse counterclaims."

He does, however, hand Apple a small victory too at the end of the decision:

"PsyStar’s single-product-market theory was previously rejected (Dkt. No. 33). Plaintiff fails otherwise to identify an actual or incipient violation of antitrust laws or the spirit thereof — harm to competition. PsyStar argues that the alleged misuse is, “at the least, unfair in that Apple has attempted (and continues to attempt) to extend the reach of its copyrights by tying them to computer hardware not otherwise protected by the Copyright Act” (Reply at 12). It fails to explain, however, how this conduct constitutes harm to competition or a violation of the spirit of the antitrust laws. In the context of single-firm conduct, tying requires monopolization.
PsyStar has identified none — other than the limited monopolies inherent in the copyrights themselves. The Section 17200 claims, therefore, are futile. PsyStar’s motion for leave to amend the Section 17200 claims is denied."

So the clone maker's attempts to resurrect unfair competition under the cloak of misuse of copyright failed. Good news for Apple since it theoretically undermines PsyStar's case - 'we bought it from Apple and they're saying we can't play with it unless we buy their hardware to use with it too'.

In practical terms if the copyright misuse case prevails it opens the way for clone makers to install the Mac OS, which is what Apple has successfully avoided since the inception of the company. Yet such avoidance, according to this judge at least, has not offended competition laws. There are clues in the order suggesting that the judge may ultimately side with Apple but it remains one to watch. After all if Microsoft are guilty of tying their browser to their operating system in a way that breaches competition laws, as suggested by the EU antitrust authorities, then surely Apple, a company which has actively and aggressively pursued such bundling practices, must be at least equally culpable?

See the order in full below (or head over to a slightly larger font, full browser window version at Justia).

HP Lexicon and RDR books withdraw appeal

I missed this in December. RDR books withdrew their appeal against the decision in favour of Warner Bros and J.K. Rowling that a print version of the Harry Potter Lexicon would infringe the copyright on the original works.

Del Pierro sues Facebook for defamation

From cnet news:

"One of the world's most famous soccer players, Alessandro del Piero of the Juventus club in Italy, is said to be suing Facebook.

He is distressed because of a Facebook profile that purports to be his (it features his name and image) and carries links to Nazi propaganda sites."

DWP voice stress detector software

The Ministry of Truth has suggested the the voice stress detection software being deployed by the UK's Department for Work and Pensions, with the aim of clamping down on benefits fraud, is not as sophisticated as has been claimed.

Thanks to David Gerard via the ORG list for the pointer to this one too.

Why protesters are now stalkers

George Monbiot had a interesting article in the Gaurdian last Thursday on how protestors can and are being prosecuted as stalkers.

"One of the most heartbreaking articles I have ever read was a response column published recently in the Guardian. Edward Countryman explained that he was writing on behalf of his wife, Evonne Powell-Von Heussen, "who could not bear to face" the unintended consequences of the thing she had created.

For 17 years she was the victim of an aggressive stalker, who attacked her and held her captive. She spent five years running a brave and vigorous campaign for an anti-stalking law, to ensure that nobody else's life could be ruined as hers was. Now she has seen how that law – the 1997 Protection from Harassment Act – is being used for a completely different purpose. She is so upset by the "perversion of its intentions" that she cannot bring herself to confront it.

Powell-Von Heussen "took great care that the act would protect frightened, endangered individuals from their assailants, and only such persons". But the first three people to be prosecuted under it were all peaceful protesters. Since then it has been used by the police and courts to criminalise almost all forms of dissent...

Having discovered what a useful tool it had become, in 2005 the government amended the act in a way that seemed deliberately to target peaceful protesters and smear them as stalkers. Originally you had to approach one person twice to be "pursuing a course of conduct"; now you need only approach two people once. In other words, if you hand out leaflets to passers-by which contain news that might alarm or distress them, that is now harassment. The government slipped in a further clause, redefining harassment as representing to "another individual" (ie anyone) "in the vicinity" of his or anyone else's home (ie anywhere) "that he should not do something that he is entitled or required to do; or that he should do something that he is not under any obligation to do". This is, of course, the purpose of protest. These amendments, in other words, allow the police to ban any campaign they please. Surreptitiously inserted into the vast and sprawling 2005 Serious Organised Crime and Police Act, they were undebated in either chamber of parliament."

Thanks to David Gerard via the ORG list for the pointer.