Mickey Mouse copyright term

James Boyle has some interesting comments on Tom Bell's Copyright Duration and the Mickey Mouse Curve:

"What Tom knows, but the casual viewer may not, is that while this graph is quite correct it actually dramatically understates the extent to which the effective length

of copyright has been extended and does so in two distinct ways.

1.) For most of American history, copyright has been given in renewable increments... if we asked, “what was the median length of actual copyright during that period?” we would have a very different graph...85% of copyright holders were not bothering to renew their works for the second term. Thus, the effective length of copyright for the majority of copyrighted culture was actually half what Tom shows. 14 years in 1790 and so on.

2.) The proportion of culture covered by Tom’s graph changes by several orders of magnitude."

James goes on to note that:

"a.) for most of American history the vast majority of most potentially copyrightable works weren’t under copyright at all and b.) that, of the tiny, tiny percentage that were, the vast majority went into the public domain at the expiration of their first term. "

So (also via Twitter):

"1.) We are the first generation to deny our own culture to ourselves.

2.) No work created during your lifetime will, without conscious action by its creator, become available for you to build upon."

Plain, simple and profound.

University education can't be mechanistic

In a letter to the Times Peter Foster from Sheffield questions the mechanistic view of education promoted by the Dearing Report.

"Bureaucracy in its purest, rule-based, form relies on prediction and rigid planning. It is blind to the unfolding of knowledge, to the personal nature of education, and what motivates students. A uniformity of standards between universities is unattainable because they have different contexts and histories, and push the boundaries of knowledge in different ways. Although open to scrutiny, audit and criticism, they must have control of their intellectual life, which includes curriculum, teaching and examining.

It is this that makes them universities. Their courses are constrained into domains of coherence by the aims of the university and faculty; the structures in professional accreditation; the influence of external examiners; the academic and professional milieu of the staff, and, of course, the perceptions and ambitions of politicians.

This constitutes a necessary dynamic tension which, in the name of a false concept of accountability, is already made brittle."

Very well said.

No progress on patents for over 100 years?

I finally got around to subscribing to Greg Aharonian's widely admired Internet Patent News Service today after meaning to do so for many years. Interestingly enough in today's newsletter Greg is lamenting the total lack of progress on the question of obviousness in patent assessment in the US for over 100 years.

Regular readers will know I've wondered for some time about the Groundhog Day like surreality surrounding IP, where the same story and the same arguments seem to be repeated time after time after time. I even devoted the opening story in my book to a 6th century book-copying case in Ireland, where the closing arguments were essentially repeated before the US Supreme Court in the Eldred case more tham fourteen hundred years later. (Incidentally if you follow the search inside links for the book at Amazon you can read the whole story of 'Colmcille and the battle of the book' there).

Is there something about intellectual property in particular or just human nature that means we're doomed to repeat the same mistakes over and over again?

Update: I should have said that Greg came to his conclusions having been reading a copy of the 1894 volume of the Transactions of the American Institute of Electrical Engineers, where engineers had been articulating the same problems with the US patent system as are apparent today.

Aussie ISP looks to Ombudsman in copyright case

Australian ISP iiNet, which is being sued by the Australian Against Copyright Theft (AFACT) for copyright infringement (the suit is being pursued on behalf of the big movie companies), is reportedly going to ask the Telecommunications Industry Ombudsman (TIO) for support.

"AUSTRALIA'S third-largest ISP may recruit the telecommunications industry's peak regulators in its bid to beat a copyright lawsuit brought against it by a group of entertainment giants.

The Telecommunications Industry Ombudsman (TIO) said it was yet to formally discuss the case with the ISP but iiNet’s regulatory chief Steve Dalby said he had held informal discussions with the group about issues relevant to the case. "

12 minutes to forge UK ID card

The Daily Mail has paid Adam Laurie to test the most secure ID card in the world, launched by the UK Home Secretary recently.

He cracked it and produced a perfect forgery in just 12 minutes.

The Home Office reaction?

"We are satisfied the personal data on the chip cannot be changed or modified and there is no evidence this has happened.

The identity card includes a number of design and security features that are extremely difficult to replicate.

'We remain confident that the identity card is one of the most secure of its kind, fully meeting rigorous international standards."

Fingers jammed in ears, eyes tightly shut, not listening not listening not listening...

UK man arrested in P2P raid

From yesterday's Guardian,

"A British man has been arrested for his role in running one of the internet's oldest file sharing websites.

The man - who started the FileSoup website in 2003 - was taken into custody last week after a raid on his home in Taunton, Somerset, and subsequently released on bail without charge...

When contacted by the Guardian, the man verified that he had been arrested last Monday, but refused to comment further without consulting a lawyer.

However, in a posting on FileSoup itself, he detailed the situation - including how police seized a number from his home, including mobile phones, computers, hard drives and a video camera."

9 sacked over national ID scheme breaches

From Computer Weekly

"Nine staff have been sacked from their local authority jobs for snooping on personal records of celebrities and personal acquaintances held on the core database of the government's National Identity Scheme."

If you have a large pot of personal data which lots of users have access to as a routine part of their jobs it will get misused. Fact of life.

Efforts to quietly drop Amendment 138?

Just as I'd been wondering if the Department for Business Skills and Enterprise consultation on tackling illicit filesharing was deliberately trying to to bypass amendment 138 of the European Parliament's telecoms package, Commissioner Reding has released the Commission's official views on the parliaments amendments to the package. Monica Horton at IPTegrity says:

"DG Information Society has quietly released its position on the Telecoms Package Second Reading, just as everyone is heading off for the summer holidays. No doubt Commissioner Viviane Reding was hoping no-one would see it. Why? It calls for a "compromise" text which the Council of Ministers was trying to push onto the European Parliament, which could have the effect of giving permission to governments to block access to Internet services and applications.

The so-called "compromise" is the replacement of Amendment 138 ( which seeks to protect users rights on the Internet) with an alternative which was drafted by the Council (sometimes known as the ‘fake 138'). The replacement, when considered in context with other Amendments in the Package, will seal in to the Telecoms Framework a right for

governments to implement ‘measures regarding end-users' access to or use of services and applications through electronic communications networks'.

The so-called "compromise" is positioned in Article 1 of the Framework directive, addressed to Member States. It should be read in conjunction with Amendment 1.2a of the Universal Services and Users Rights directive, which will permit broadband providers to block impose "conditions limiting access to and/or use of services and applications". In light of T-Mobile blocking Skype, BT throttling peer-to-peer services, and Karoo, a small UK ISP cutting off users, it should now be abundantly clear what this text means. .

It is far from the ‘balanced' approach which the Commission claims."

Not having read the Commission's paper thoroughly I can't comment in any great detail but the paragraph which appears to be causing concern is penultimate one in the document.

"Concerning Amendment 138 the Commission accepted it in its amended proposal after the European Parliament's first reading but supported the European Parliament-Council compromise text afterwards as a balanced solution. The Commission could, therefore, accept the amendment, but will do its utmost to facilitate the emergence of a compromise between the co-legislators on this issue."

Given that amendment 138 blocks the termination (the"restriction.. on the fundamental rights and freesoms of end-users") of someone's internet access without prior judicial oversight and the compromise, as I recall, enabled terminations but facilitated a right of appeal to an independent tribunal, I can only suggest it is a potentially significant development.

FCC look into Apple rejection of Google app

Apparently the FCC has decided to ask Apple why they rejected Google's voice app for the iPhone.

"Signaling heightened scrutiny of the wireless industry, the Federal Communications Commission said Friday it was investigating why Apple rejected the Google Voice application for the iPhone.

The FCC sent letters to AT&T, Apple and Google asking for information about the decision and, more broadly, about how Apple runs its applications store."

Tenenbaum: a courtroom is not a classroom

Howard Knopf, in the wake of the Tenenbaum p2p verdict, is very critical of Charles Nesson's litigation strategy.

"It's not clear from all the tweet and blog reports that there was much if any evidence led by Nesson or elicited on cross examination that could have helped Joel with respect to such obvious issues as:

• A fair use defense, however unlikely it would have been to succeed. In fact, the defense was thrown out by the Judge before the trial because of a complete lack of evidence that might have somehow supported it. Prof. Oberholzer-Gee, also at Harvard, was the obvious expert witness who might have helped Joel on this front. His study is or ought to be known to everyone familiar with the P2P debate. If fair use was the Hail Mary pass that Prof. Nesson was counting on, he was told by Lessig, Fisher, Seltzer etc. etc. that it was a loser of an argument. Nesson notoriously published many of the emails from his colleagues confirming that the argument was hopeless. Although he persisted with it, he marshalled no relevant evidence in the Jude’s mind even to give it a chance of getting heard. Apparently, no attempt was made to use Oberholzer-Gee until about a week before the trial, which was least three months too late. If Oberholzer-Gee was not available, there were others (i.e. Andersen/Frenz 2008) who could have countered Stan Liebowitz - the able economist and very experienced expert witness called by the RIAA.

• A constitutional argument about statutory minimum damages that range from $750 to $150,000 per work for much less than a dollar’s worth of actual damage. Again, Oberholzer-Gee might also have been useful here to argue that P2P sharing does no overall harm to the music industry; and,

• Whether there was any actual distribution of each of the songs to anyone other than the Media Sentry investigator...

Not having taught at Harvard, I’m perhaps not qualified to give Prof. Nesson a lesson. But, as any practising lawyer knows, a court room is not a class room.

Given the litany of problems in the defense of Tenenbaum, the result is hardly a surprise. However, given the stature of Prof. Nesson, HLS, and the Berkman Center, the nature of the defense was very surprising. Nor is it surprising that HLS has been apparently been taking actions that might suggest that it is trying hard to distance itself this as the outcome was becoming apparent."

And Ray Beckerman doesn't believe any of the key issues have been tested in the case.

"Here are what I felt should be the central issues at this trial, in which the defendant had admitted using Kazaa file sharing software to download song copies:

1. If the plaintiffs wish to prove distribution, they should have to prove:
(a) dissemination of copies
(b) to the public
(c) by sale, other transfer of ownership, rental, lease, or lending. See 17 USC 106(3).

2. If the plaintiffs wish to claim statutory damages, they should have to prove as to each work allegedly infringed that its copyright registration effective date preceded the date on which defendant allegedly began using the "online media distribution system" in question...

3. Plaintiffs' lawyers should be prohibited from making any reference in the presence of the jury to any copyright infringement by anyone other than defendant or to their business problems or anything else unrelated to a copyright infringement by this defendant.

4. If the plaintiffs have proved a basis for seeking statutory damages, the jury should not be allowed to award statutory damages of more than $750 per infringed work, absent proof of actual damages of hundreds of dollars per infringed work. (There is long standing case law under the Copyright Act that statutory damages should bear a reasonable relationship to actual damages, and that even in commercial cases the usual multiple is from 2:1 to 4:1...

5. If plaintiffs' counsel claim that defendant "could have disseminated" a great number of copies "to the public" they should be required to prove that technically, rather than assuming it to be true, and they should be required to prove then that it actually did happen, rather than be permitted to speculate that it might have.

6. Plaintiffs should be required to prove that the downloaded song file copies were played and listened to, and their contents verified, by a person qualified to make such determination. See Deposition of President of MediaSentry in BMG v. Doe.

7. Testimony from MediaSentry and Jacobson should be barred under Daubert:
(a) Under Fed. R. Civ. P. and Fed. R. Evid., MediaSentry is an expert (see USA v. Ganier, 468 F.3d 920 (6th Cir. 2006); therefore its testimony should be barred for failure to provide expert witness disclosure;
(b) Alternatively, MediaSentry documents and testimony should be barred for failure to satisfy Daubert and Fed. R. Evid. 702;
(3) Jacobson testimony should be barred for failure to satisfy Daubert and Fed. R. Evid. 702

8. In the event that there are multiple mp3's from one album, the jury should be instructed that the album constitutes a single “work”."

Recreating MGM musical classics for the Proms

As a lifelong fan of MGM musicals, I was pleased to catch at least part of the broadcast of John Wilson's celebration of the genre in Prom 22 at the Royal Albert Hall on Saturday last.

Wilson wrote to MGM several years ago asking if he could have copies of or see the original scores of the classic musicals of the 1930s, 40s and 50s. Sadly these had been destroyed when the MGM library was demolished to build a carpark ( I think in the early 1960s). Wilson then decided to reconstruct the orchestral scores from scratch by watching the musicals and some of the fruits of that work were performed on Saturday evening last. To give you an idea of how much work was involved in this, it took him about a year in total (a 4 bar extract from The Wizard of Oz for example took him a day to put back together) to prepare for the concert, not just reconstructing the scores but finding the right musicians and singers to pull the whole thing together.

It's amazing to think that at least the management of MGM responsible for the demolition of the library believed that the music had no lasting value, given how much energy the studios and the music industry put into protecting and extending their copyrights. It is interesting too to compare this with the deliberate demolition of the set for Ben Hur and in particular the chariot race a few years later, reportedly because the producer, Samuel Bronston, did not want his masterpiece being used or copied in any inferior productions thereafter.

I'd really like to know the copyright saga behind this prom - how much and what kinds of negotiations went on over rights, whether Wilson (or more likely his or the BBC's lawyers) found MGM helpful with various aspects of the project; how the musicians and singers got involved and how they initially found out about the whole thing; how many artists were interested but didn't make the final cut and whether there were extensive auditions; whether, now Wilson has recreated the scores, MGM are claiming copyright/ownership of them; who was involved, at what levels and how did the final programme for the concert evolve in the planning; and is the John Wilson Orchestra going to perform again or was this a one-off for the proms?

Sadly the performance will only be available on the BBC iPlayer for a limited time.