RealNetworks v Hollywood

More copyright fun in a Californian courtroom today as RealNetworks take on the movie industry on the DVD-ripping software battleground.

"Hollywood calls it "rent, rip and return" and contends it's one of the biggest technological threats to the movie industry's annual $20 billion DVD market - software that allows you to copy a film without paying for it.

On Friday, the showdown over the issue will take place in federal court in San Francisco, where an army of lawyers representing Hollywood will argue that RealNetworks Inc.'s DVD "ripper" is an illegal digital piracy tool.

The company, in turn, will say the $29.99 software that allows DVDs to be easily copied to computer hard drives is legitimate.

The same federal judge who shut down music-swapping site Napster in 2000 because of copyright violations will preside over the three-day trial, which is expected to cut to the heart of the same technological upheaval roiling Hollywood that forever changed the face of the music business."

This one on the surface looks a bit closer to the Universal v Sony VCR 'substantial non-infringing uses' case from way back in the 1980s than Napster or Grokster did. The Napster judge, Marilyn Hall Patel, is presiding over this one too and it will be worth watching.

Cory on the secret international world of copyright policymaking

Cory Doctorow has a wonderful polemic on the secret processes by which copyright policy gets made, as per the ongoing ACTA negotiations, and the unintended benefits that accrue to copyfighters as a result.

"I recently found myself debating the head of the British Phonographic Institute, our local equivalent of the Recording Industry Association of America (RIAA). He's Britain's top lobbyist for the collapsing record industry, and he said a remarkable thing.

An audience member had just stood up and asked one of those rambling non-questions that are really just polemics, words to the effect of, "You people are so evil -- just look at the Anti-Counterfeiting Trade Agreement, it's full of bad things and it's all being negotiated in secret, away from public input. It's more corporate influence on government!"

And then Britain's top record industry lobbyist said the remarkable thing: "It's perfectly normal for this kind of treaty to be negotiated in private. There's nothing sinister going on at all." That's when I realized that the all-powerful entertainment lobby has developed advanced lobbyist's senility. Lost its tactical marbles. Lost its spine.

And I had to suppress a grin...

Back in 2003, I flew to Geneva for the first time, to attend the WIPO Standing Committee on Copyright and Related Rights (SCCR) negotiation on a proposal called "The Broadcast Treaty."...

This was new ground for EFF -- we'd never gone to the UN before, and we weren't sure what, if anything, we could do about this stuff...

Before all the shenanigans started, I had to tell this incredibly complicated story: "Here's this UN body you've never heard of. Here's this subcommittee of that body. Here's this insanely complicated copyright treaty they're working on, and here's this really difficult-to-grasp but vitally important thing it's going to do to the Internet."

After the shenanigans, the story got much simpler: "We went to Geneva to take part in this Internet treaty negotiation and they threw out our handouts, gamed the system to keep us out of the room, and shouted at us for writing down what they said."...

t wasn't always that way at WIPO, which is the birthplace of the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT), collectively called the "Internet Treaties."...

But delivering expensive, corrosive privileges to entertainment companies is bad politics if you plan on getting re-elected. It only works well if all the negotiations take place in secret and no one gets to see the ugly, greedy horse-trading that happens behind the scenes...

The global furor over ACTA shows that every time the entertainment industry screws up the process so that only it gets a seat at the table, it emboldens our side. It sends supporters our way. It makes explaining the substantive points simpler -- "See, this is just like that stupid law everyone in New Zealand was protesting!" -- and it makes the entertainment industry look stupider.

You know what would probably get something done? If the record industry proposed a law through the front door, with public hearings, to find an equitable, simple way to get paid for the use of its material online. A blanket license, say, that users or ISPs could opt into in exchange for access to all the music that's already online, wherever and however they can find it.

Sure, some of the hardcore copyfighters would hate it -- it'd feel too much like a "music tax" for their taste, and they won't rest until the music companies have been killed in vengeance for all the bad stuff they've done since 1996 -- but it'd make the entertainment giants seem reasonable, and it would make anyone who disagreed with them seem unreasonable. They'd have the easy sell: "We want to stop suing your kids, but these crazy infohippies won't let us!"

But they won't be doing that any time soon. In early April, Howard Berman, the powerful Hollywood Congressman, held a town hall meeting on copyright to which he invited a bunch of entertainment industry goons -- and not one advocate for a more moderate copyright stance. Whatever comes out of that meeting, we'll always be able to drum up public opposition to it by making fun of the cowardly way it was convened.

So bring ACTA on, bring on copyright term extension in Europe, bring on the next version of Canada's DMCA, bring on more ridiculous proposals from secret negotiations. The more they act like mustache-twirling villains, the easier it'll be to bring them down."

ICETV v Nine

For a more sensible perspective on copyright look to the Icetv decision in the High Court of Australia earlier in the week. Copyright anoraks may remember that the broadcaster, Nine, had won in the appeal court in this dispute over copyright in TV schedules. Warwick Rothie has an interesting analysis.

"IceTV publishes an electronic tv program guide or schedule. The ABC and SBS provide their program schedules, but the commercial free-to-air networks refused. Mr Rilet sat down and watched 3 weeks of Channel 9 programming, writing down the time and title of each program. He then made up a program schedule ‘predicting over’ what would be broadcast. As the broadcast date neared, however, IceTV employees checked up to 3 other program guides and made corrections to the ‘predicted over’ guide as appropriate. (A summary of the changes made to 2 particular days can be found at [179 - 181] of Gummow, Hayne and Heydon JJ’s reasons.) Mr Rilet and IceTV presumably engaged in the same kind of work for the other commercial networks.

The High Court unanimously held that IceTV’s use of time and title information (’slivers’ in Bennett J’s evocative phrase at first instance) did not reproduce a substantial part of Nine’s copyright in [one or other programming schedule]. (It is necessary to be a bit vague here since, as in Feist, the alleged infringer mistakenly (as it now turns out) conceded copyright subsistence in something, to the evident frustration of all High Court judges.)

One thing the Court was unanimously agreed upon is that “copyright does not protect facts or information”, it protects forms of expression. See e.g. [28] per French CJ, Crennan and Kiefel JJ and [70] and [102] per Gummow, Hayne, Heydon JJ...

The judgments both bear strong indications that Australian copyright law should change track and follow the line pursued by the US Supreme Court in Feist.

Both judgments appear to affirm that copyright involves a balancing of the competing interests of creators (and owners) and users or the public.

The fun, or future controversies, begin in what follows.

For French CJ, Crennan and Kiefel JJ, there appears to be a different approach according to whether one is considering questions of originality and substantiality in connection with subsistence of copyright or in connection with infringement.

French CJ, Crennan and Kiefel JJ appear to consider that copyright will subsist so long as what is expressed (in a material form) originates from the author in the sense of not being copied from somewhere else. See [33] and [48].

Their Honours accepted that infringement fell to be tested by ascertaining whether or not the time and title information in IceTV’s guides was a substantial part of the relevant Nine program guide. This required consideration of “the degree of originality of the particular form of expression of the part [taken].” at [52]

Just because the part taken originated from the author did not necessarily make that part a substantial part of the original copyright work - “[o]riginality in the context of infringement has a broader aspect.” at [38].

The time and title information reproduced by IceTV did not require much in the way of mental effort at [42]. Its chronological arrangement was obvious and prosaic at [43].

According to their Honours at [54]:

the critical question is whether skill and labour was directed to the particular form of expression of the time and title information, including its chronological arrangement. The skill and labour devoted by Nine’s employees to programming decisions was not directed to the originality of the particular form of expression of the time and title information. The level of skill and labour required to express the time and title information was minimal[83]. That is not surprising, given that, as explained above, the particular form of expression of the time and title information is essentially dictated by the nature of that information."

It's a thoughtful decision and bears some study, the time for which is sadly unavailable to me today. Thanks to Neil Dunbar for the alert.

EU parliament extends copyright term

The EU parliament caved in to vested interests yesterday by voting to extend the term of copyright in sound recordings by 20 years.

"Charlie McCreevy, the EU’s Internal Market Commissioner, who proposed the copyright changes, said: “Some might argue that European creators are overprotected. Those who rely on copyright for their income would beg to differ. If artists stay in the music recording business because it pays to do so, consumers would enjoy more variety as a consequence.

“Europe’s performers often live a very precarious existence at the best of times. This proposal ensures that performers can, in their late life, recoup a share in the income they generate.”"

The Commission is very pleased even though, by the EU's own figures, more than four fifths of the revenues flowing from this decision will go directly to the music labels and the top earning artists like the smiling Cliff Richard in the Times report on the vote. And anyone with the faintest mathematical literacy and a basic understanding of compound interest and discounted cash flows can demonstrate that it will not increase the incentive to create new works. Mr McCreevy is a chartered accountant and former Irish finance minister of seven years standing. With a background that suggests he should understand the figures he is really difficult not to believe he is being more than a little disingenuous in his comments.

Maybe someone could get through to him and the Commission by telling them the story of the birthday song? In 1893 the Hill sisters published the music and lyrics of a song called "Good Morning to All" in their book of songs for younger kids (I vaguely recall it had an original enlightening title along the lines 'Songs for the kindergarten' but just to be sure, check out Kimbrew McLeod's terrific book, Freedom of Expression, for a more detailed account of the story and the precise title of the sisters' Hill book). The tune had been around for years and had been sung with a variety of lyrics like "good night to you all" and "happy New Year to all" etc. The little kids liked the song so much they started singing it at birthday parties and spontaneously made up the words "Happy Birthday to You...".

The Hill sisters didn't get round to registering the copyright (a requirement in the US in those days) in "Happy Birthday to You" - neither the tune nor the words of which were created by them remember - until 1935. But so began the successful commercial life of "Happy Birthday to You" the royalties and lawsuits on which have been flowing ever since.

TimeWarner (or technically speaking its predecessor company Warner Communications) acquired the rights to the song in the late 1980s and were quite pleased when the US Congress extended the term of copyright by 20 years a decade later. This means that, in the US, the birthday song can continue to contribute more than $1 million per annum to TimeWarner's bottom line until 2030, by which time the Cliff Richards of the world will have been wheeled out to the media studios again with the sad tales of impoverished pensioner musicians who desperately need the copyright term to be extended. And despite economic evidence indicating those same poor musicians will benefit only to the tune of €0.5 to €30 per year at best, the politicians will drool over the photo-opportunity with the celebrity du jour and roll out the extension carpet again. There is a lot of the Groundhog Day surreality about the copyright term policy story but maybe by the time of the next extension I might not even be able to mention said film in such a context. I'm really going to have to wean myself off the elixir of copyright. I'm not sure how much longer I can stand seeing the story repeat itself.

It is a sad indictment of the EU Commission and 371 EU parliamentarians (and 37 abstainers) that they have bought into the fantasy of term extension spun so successfully by the entertainment industry's pr machines. It's a big win for the wealthiest artists and the labels and a big loss for the other interested parties - the majority of musicians, new creators and the public.

Rice and UK may be implicated in released torture memos

The Times is reporting that:

"A week has passed since President Obama set a train in motion with the publication of secret memos to justify harsh interrogations by the CIA, and the White House appears to have lost control over its ultimate destination.

Fresh disclosures of declassified documents on Wednesday implicated a dozen senior officials in the Bush Administration, including Condoleezza Rice, as having approved techniques such as waterboarding — simulated drowning widely regarded as torture — on terrorist suspects."

and on the flawed decision making process that led to the Bush administration's authorisation of torture. In addition the paper suggests that the UK Foreign Secretary's efforts to withhold documents that allegedly constitute evidence of the UK's complicity in the torture of former Gunatanamo Bay detainee, Binyam Mohamed, are weakened by President Obama's release of the US torture memos.

Blackboard lose another round

Also from the Chronicle, in the latest preliminary ruling from the US patent office Blackboard has lost again. Desire2Learn are quietly pleased.

"Last week the U.S. Patent and Trademark Office issued a preliminary ruling rejecting all 57 claims in a software patent that Blackboard Inc. used to successfully sue rival Desire2Learn for infringement. But the long-running patent battle between the two providers of course-management software is far from over, and the re-examination process could drag on for years because of the many chances that Blackboard has to appeal."

This one has a long way to run yet but its pleasing to see another step in the right direction.

Students lose Turnitin appeal

From the Chronicle of HE: Students Lose, Fair Use Wins in Suit Targeting anti-Plagiarism Tool

"Students have suffered another defeat in their legal fight against the company that runs a plagiarism-detection tool popular among professors.

A federal appeals court last week affirmed a lower court’s decision that the Turnitin service does not violate the copyright of students, even though it stores digital copies of their essays in the database that the company uses to check works for academic dishonesty.

The opinion from the U.S. Court of Appeals for the Fourth Circuit “will be cheered by digital fair-use proponents,” says the E-Commerce and Tech Law blog."

Pamela Samuelson on the Google Book settlement

Pam Samuelson has an insightful analysis of the Google book settlement at O'Reilly Radar.

"

Google has scanned the texts of more than seven million books from major university research libraries for its Book Search initiative and processed the digitized copies to index their contents. Google allows users to download the entirety of these books if they are in the public domain (about 1 million of them are), but at this point makes available only “snippets” of relevant texts when the books are still in copyright unless the copyright owner has agreed to allow more to be displayed.

In the fall of 2005, the Authors Guild, which then had about 8000 members, and five publishers sued Google for copyright infringement. Google argued that its scanning, indexing, and snippet-providing was a fair and non-infringing use because it promoted wider public access to books and because Google would take out of the Book Search corpus any digitized books whose rights holders objected to their inclusion. Many copyright professionals expected the Authors Guild v. Google case to be the most important fair use case of the 21st century.

This column argues that the proposed settlement of this lawsuit is a privately negotiated compulsory license primarily designed to monetize millions of orphan works. It will benefit Google and certain authors and publishers, but it is questionable whether the authors of most books in the corpus (the “dead souls” to which the title refers) would agree that the settling authors and publishers will truly represent their interests when setting terms for access to the Book Search corpus...

In the short run, the Google Book Search settlement will unquestionably bring about greater access to books collected by major research libraries over the years. But it is very worrisome that this agreement, which was negotiated in secret by Google and a few lawyers working for the Authors Guild and AAP (who will, by the way, get up to $45.5 million in fees for their work on the settlement—more than all of the authors combined!), will create two complementary monopolies with exclusive rights over a research corpus of this magnitude. Monopolies are prone to engage in many abuses.

The Book Search agreement is not really a settlement of a dispute over whether scanning books to index them is fair use. It is a major restructuring of the book industry’s future without meaningful government oversight. The market for digitized orphan books could be competitive, but will not be if this settlement is approved as is."

ACTA threat to the future of WIPO

Michael Geist has been suggesting that ACTA may well be a response to the increasing emphasis on the development agenda at WIPO.

Google Book settlement faces legal assault

Also missed this recently: Google Book settlement faces legal assault

Winona Rider or Osama Bin Laden - face scanners can't tell

I missed this a couple of weeks ago. The trial of the face scanning technology at Manchester Airport caused long queues, so they re-calibrated it to let more people through without the extra security checks triggered by a scanner alert. Similar scanners at Sydney Airport set to the same calibration level were tested by an academic from Glasgow University and were unable to tell the difference between Osama Bin Laden and actress Winona Rider. The Home Office is, however, insisting that "Previous tests show that they system can reliably pick out imposters and even distinguish between identical twins."