Image via

Posted here are two pieces: the first, an excerpt from today's Op-Ed by NYTimes columnist Paul Krugman, offers a view of the future of technology with (uncharacteristic) optimism; the other is a press release about several major record labels currently suing Spain's own P2P pioneer, Pablo Soto. An interesting juxtaposition. The money quote is about litigation not being a particularly "valid business model".

Bits, Bands and Books
By PAUL KRUGMAN
Published: June 6, 2008

Do you remember what it was like back in the old days when we had a New Economy? In the 1990s, jobs were abundant, oil was cheap and information technology was about to change everything.

Then the technology bubble popped. Many highly touted New Economy companies, it turned out, were better at promoting their images than at making money -- although some of them did pioneer new forms of accounting fraud. After that came the oil shock and the food shock, grim reminders that we’re still living in a material world.

So much, then, for the digital revolution? Not so fast. The predictions of '90s technology gurus are coming true more slowly than enthusiasts expected -- but the future they envisioned is still on the march.

In 1994, one of those gurus, Esther Dyson, made a striking prediction: that the ease with which digital content can be copied and disseminated would eventually force businesses to sell the results of creative activity cheaply, or even give it away. Whatever the product -- software, books, music, movies -- the cost of creation would have to be recouped indirectly: businesses would have to "distribute intellectual property free in order to sell services and relationships."

For example, she described how some software companies gave their product away but earned fees for installation and servicing. But her most compelling illustration of how you can make money by giving stuff away was that of the Grateful Dead, who encouraged people to tape live performances because "enough of the people who copy and listen to Grateful Dead tapes end up paying for hats, T-shirts and performance tickets. In the new era, the ancillary market is the market."

Indeed, it turns out that the Dead were business pioneers. Rolling Stone recently published an article titled "Rock's New Economy: Making Money When CDs Don't Sell." Downloads are steadily undermining record sales -- but today's rock bands, the magazine reports, are finding other sources of income. Even if record sales are modest, bands can convert airplay and YouTube views into financial success indirectly, making money through "publishing, touring, merchandising and licensing."

What other creative activities will become mainly ways to promote side businesses? How about writing books?

[read on...]

via PRWeb, June 5, 2008:

Major Record Labels Sue Spanish P2P Pioneer Pablo Soto, MP2P Technologies, Suit Seeks $20mm USD

Lawsuit, Believed to be Unprecedented, Claims "Unfair Competition"

Madrid, Spain (PRWEB) June 5, 2008 -- MP2P Technologies (http://www.mp2p.net/) announced today that it has been served with a lawsuit from what remains of the four major record labels. The lawsuit, WARNER MUSIC SPAIN S.A., UNIVERSAL MUSIC SPAIN, S.A., EMI MUSIC SPAIN, S.A., SONY BMG MUSIC ENTERTAINMENT, S.A., PRODUCTORES DE MUSICA EN ESPANA (PROMUSICAE) v. PABLO SOTO BRAVO, OPTISOFT, S.L., PIOLET NETWORKS, S.L., MP2P TECHNOLOGIES, S.A. (filed in Madrid Court for Commercial Matters # 2807910001898), seeks $20mm in alleged damages from the technology upstart.

"We intend to vigorously defend ourselves against this shake down attempt by the major label cabal," said Pablo Soto, founder and CEO of MP2P Technologies. "Rather than embracing technology, they have chosen a path that will ultimately lead to their own demise, as evidenced by the labels consistent decline over the past decade. Litigation is in itself not a valid business model for them, however, it has been a dogged and futile pursuit of theirs since the advent of P2P."

"PROMUSICAE (Spanish branch of the IFPI; international arm of the RIAA) tried to proceed with civil suits against users of P2P networks in Spain and, after being halted by the Court of Justice of the EU, it has now decided to go against a neutral communication tool such as P2P technology," added Soto.

MP2P Technologies innovates technology offerings including Piolet (http://www.piolet.com/), Omemo, (http://www.omemo.com) and Blubster (http://www.blubster.com).

Pablo Soto is considered one of the pioneers of P2P, together with other distinguished luminaries such as Justin Frankel (Gnutella) and Shawn Fanning (Napster). He is a frequent panelist at national and international forums and serves from time to time as a visiting professor at the University of Valencia and the University of the Basque Country. His progressive accomplishments in technology have garnered worldwide press recognition, including CNN, The New York Times, Reuters, AP, USA Today, C/Net, Rolling Stone, CBS News, San Jose Mercury News, among many others.

About MP2P Technologies
MP2P Technologies' software offerings have been downloaded millions of times by scores of people from around the globe. Founded by renowned technology developer Pablo Soto in 2000, MP2P Technologies today remains a leader in the P2P sector and consumer technology. MP2P Technologies is headquartered in Madrid, Spain. For more information, visit http://www.mp2p.net.

For more info, check out http://en.wikipedia.org/wiki/New_Music_Economy

via Electronic Frontier Foundation (EFF):

May 21st, 2008      

B-24 Liberated!

Posted by Corynne McSherry      

Last month we told you about Lockheed Martin's effort to use trademark infringement claims to cause the removal of digital images of classic military aircraft from TurboSquid, a stock images site. The central mark at issue was the term "B-24," which Lockheed managed to register as a trademark for use in connection with scale models of airplanes. We sent an open letter to Lockheed’s licensing agency, demanding that they withdraw their improper objections. We're pleased to report that Lockheed has decided to withdraw its claim, and TurboSquid is putting the images back up forthwith.

This is a good outcome, but the problem remains. Because online communication and commerce often depends on intermediaries like TurboSquid, who may not have the resources or the inclination to investigate trademark infringement claims, it is much too easy for trademark owners like Lockheed to ignore fair use and shut down legitimate content. And not every target of improper claims is going to have the resources to push back.

One way to help prevent future overreaching claims is for trademark owners to learn that a trademark registration doesn’t give you a right to control everyday use of regular descriptive terms. Another is for large trademark owners to set up websites or email "hotlines" where the targets of trademark claims can seek review and prompt withdrawal of the claim if the takedown request was in error. Such a hotline won't stop real abuse, but will provide a relatively painless way for trademark owners to correct honest mistakes. Finally, service providers should institute a form of counter-notice procedure that would allow those who believe they have been accused unfairly to quickly determine the basis for a takedown, and request reconsideration. Real infringers won't bother to take advantage of such a procedure, but fair users could use it to show that their use is permissible (and therefore does not put the service provider at risk).

Related Issues: Free Speech, Intellectual Property

via BoingBoing:

WWII Bomber: "Trademark Infringement"

Posted by Mark Frauenfelder, March 21, 2008  9:32 AM

John Macneill is a kickass 3D illustrator whose work frequently appears Popular Science and other national magazines. He also contributes to the Turbo Squid 3D model site. Recently In 2002 he uploaded his model of a WWII B-24 Bomber to Turbo Squid. Lockeed Martin came across it and yesterday it wrongfully (illegally?) used the DMCA to force Turbo Squid to remove the file.

A photographer can take a photo of any type of car and sell the photo; look at any car magazine. A painter can create a painting of anything and sell that, remember Andy Warhol's famous 1968 painting of a can of Campbell's tomato soup? But a CG artist cannot create a sculpture of a Ford Mustang and sell that, at least not on Turbo Squid. There is obviously a double standard here. So where does this leave CG artists? Until a stock company becomes willing to fight back against these takedowns, there seems little any individual artist can do.

UPDATE: Cory [Doctorow]has the following to add:

Turbo Squid, a large 3D stock image site, has been systematically removing models of contemporary and vintage vehicles, after their manufacturers sent in improper DMCA takedown notices alleging that publishing 3D models of old cars and airplanes infringed on their trademarks (this isn't true, but even if it was, the DMCA deals with copyright, not trademark). Yesterday, 3D artist John MacNeill had his model of a WWII bomber removed after Lockheed sent a letter to Turbo Squid, alleging that this 60-year-old plane infringed on its trademark.

A Turbo Squid spokesperson is quoted as saying, "The thing you need to keep in mind is that you cannot make money off someone else's registered Trademark." This is simply untrue. Trademark does not protect owners from others profiting on their marks -- trademark's purpose is to prevent vendors from misleading the public about the origin of goods and services. If you use someone else's trademark ("Charger works with Nokia phones!") you're totally in the clear, provided that the purchaser doesn't get confused about whose product he's buying.

Trademark law is clear: Turbo Squid can sell unauthorized models of cars, planes and other trademarked objects, provided that they make it very clear that these models weren't authorized, made or marketed by the manufacturers of the cars, planes and objects. [read on...]

A visitor to Van Gogh's bedroom in Second Life. Versions of the original painting are in the Art Institute of Chicago, the Van Gogh Museum, Amsterdam, and the Musée d'Orsay, Paris

via The Art Newspaper, May 22, 2008:

Copyright, conflicts of interest, and how to deal with Uncle Sam

US museum lawyers met last month to discuss the most pressing issues they are currently facing

Martha Lufkin | 22.5.08 | Issue 191

Over 200 museum employees, lawyers and interested parties convened in Scottsdale, Arizona, for the 36th annual conference on Legal Issues in Museum Administration in April.

The course, which brings legal know-how to museums without lawyers on staff, is offered by the American Law Institute-American Bar Association, and is co-sponsored by the Smithsonian Institution with the cooperation of the American Association of Museums (AAM).

In an address on the state of museums, AAM president Ford W. Bell told the group that museums are facing challenges including tight government budgets, a perception that charities serve the rich and negative press about perceived abuses at certain museums. The conference discussed new ways of dealing with intellectual property in the digital age, museum policies on corporate governance and conflicts of interest under increasingly probing government scrutiny.

The Second Life syndrome

Sharon Farb, associate university librarian at UCLA Library in Los Angeles, said that as museums put more images and content online, more users will ask to use it; she advises that museums not require licences for everything. Instead, they should make clear on their websites which content can be reproduced without permission, and should post all licence forms for those objects which require them. Virginia Rutledge, Vice President and General Counsel of the non-profit Creative Commons, San Francisco (CC), described the CC licence which piggybacks on existing copyright law to let copyright holders "signal when it is just fine" for a user to copy, or even alter, a work. The New Museum in New York, for example, uses CC licences to permit copying. The CC website posts six different licence forms to choose from, and tells you how to mark your content so users will know what copyright rules apply (http://creativecommons.org).

As web users find new applications for museum images, including those possibly obtained without permission, how should museums respond? Phoenix lawyer Connie J. Mabelson described websites which regularly violate copyright laws, although the usual copyright enforcement steps still apply. At Second Life or similar sites, virtual art--the hard copies of which may be owned by real museums--is being bought and sold by paying participants for virtual money, which can be exchanged for real dollars.

Visitors create an avatar which can enter a virtual, 3-D rendition of a famous bedroom scene painted by Van Gogh or buy furniture inspired by Frank Lloyd Wright's designs. If the original work is protected by copyright, Ms Mabelson asks, should a museum take steps to enforce it, or do the virtual reworkings fall within a "fair use" exception to copyright infringement? (Perhaps the issue will be debated at Second Life's virtual bar association, which does exist.) Ms Mabelson advises that a museum's fair use policy should address what the museum should do if a museum image appears on a wiki, an online site where any user can add content.

The museum comes first

Recent scandals over alleged misconduct by top US museum officials have caused museums to review their conflicts of interest policies regulating board members and employees. Conflicts arise when a trustee's duty of loyalty to the museum is compromised, says Lori Fox, acting vice president, general counsel and secretary at the J. Paul Getty Trust; she advises that museums have a well-written conflicts of interest policy that defines the trustees' duties, prohibits potential conflicts, and provides a way to resolve them.

For example, conflicts can arise if a trustee collects art that the museum might collect; trustees should be forbidden to buy deaccessioned art, or to use inside information for their own benefit, such as to buy an artist's work before the museum announces its purchase of art by the same artist, which could drive up prices. Museums should also require annual disclosure forms from trustees and some employees to identify possible conflicts, including asking about the trustee's art acquisitions and whether the trustee has received gifts from museum staff or anyone the museum does business with. For example, trustees may seek favours from museum staff, such as asking a conservator to restore a privately owned manuscript, which would take the conservator away from his duties. While this may be a way to cultivate donors, the Smithsonian Institution prohibits using staff time and services for private uses.

When a conflict with a board member arises, the trustee's interest in a possible transaction should be disclosed and the trustee must be excluded from the decision, which the board's audit committee or even the state attorney general can be asked to review. The board must still ask whether the proposed transaction is in the museum's best interests, which it might be, says Frederic Goldstein, general counsel to the Los Angeles County Museum of Art. Each situation should be reviewed on its facts: while an exhibition of a trustee's collection of local maps by a small museum may increase the collection's value, the benefits to the museum and its community may be so great that the display is still in the institution's best interests.

Government scrutiny

Congress is seeking to stop perceived abuses in the non-profit world, and is using the tax law to do so. The new revision to the annual tax return for non-profit organisations, Form 990, seeks significantly more information about how museums are run. Organisations will first file the return for tax years beginning this year. The form "shows the government's increased role in governance and conflicts of interest", says Marsha Shaines, deputy general counsel to the Smithsonian Institution. The information that charities provide on the forms will be publicly available. The museum must summarise its missions and activities, changes in its programmes and its achievements of its exempt purpose.

New questions about governance and management mean that the museum should have policies in place before the form is filed, Ms Shaines advises. For example, the form asks whether the board and committees contemporaneously documented their meetings during the year, whether the organisation has a written conflicts of interest policy, and whether officers, trustees and key employees are required to disclose annually any interests that could give rise to a conflict. The form asks whether the charity enforces its conflicts policy, and whether it has whistleblower protection and document retention and destruction policies. Museums must further disclose whether they determined director compensation using an independent review and comparability data, and contemporaneously substantiated their decision-making process. The form also requests the dollar details on first class travel, travel for companions, and housing allowances for directors and trustees.

While it is not clear whether the Internal Revenue Service will be able to process all this information, the public and press will now be able to review it.

Don't get political

US charities are prohibited from participating in political campaigns, and cannot attempt to influence legislation. The rules are complex, and stiff penalties can apply. For example, museums cannot tell people to urge their congressmen to vote in favour of art funding.

A conference participant asked anonymously if a museum can host an exhibition on the anti-war movement within the Democratic Party? Under the law, a "facts and circumstances" test applies. The test is used to determine whether a non-profit is participating in a political campaign, and one factor could be how close in time the activity is to the campaign. The anti-war exhibition could raise an issue if it includes present-day events and differentiates between political parties. Both political parties should be covered, or the subject should be restricted to the past, says Marcus Owens, a lawyer at Caplin & Drysdale in Washington, DC. "If you think a political statement is going to pop out of a visiting artist's mouth at a lecture, you might want to start the programme with a disclaimer."

The 2008 course book "Legal Issues in Museum Administration," containing licence forms, conflicts of interest policies, employee standards of conduct and other materials, can be obtained from ALI-ABA at www.ali-aba.org or tel: +1 800 253-6397

[image Via]

Larry Lessig does not support the Orphan Works bill:

via NYTimes:

Op-Ed Contributor

Little Orphan Artworks

By LAWRENCE LESSIG

Published: May 20, 2008

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CONGRESS is considering a major reform of copyright law intended to solve the problem of "orphan works" - those works whose owner cannot be found. This "reform" would be an amazingly onerous and inefficient change, which would unfairly and unnecessarily burden copyright holders with little return to the public.

The problem of orphan works is real. It was caused by a fundamental shift in the architecture of copyright law. Before 1978, copyright was an opt-in system, granting protection only to those who registered and renewed their copyright, and only if they marked their creative work with the famous ©. But three decades ago, Congress created an opt-out system. Copyright protection is now automatic, and it extends for almost a century, whether the author wants or needs it or even knows that his work is regulated by federal law.

The old system filtered copyright protection to those works that needed it; the new system regulates indiscriminately.The Congressional Research Service has estimated that just 2 percent of copyrighted works that are 55 to 75 years old retain any commercial value. Yet the system maintains no registry of copyright owners nor of entities from which permission to use a copyrighted work can be sought. The consequence has been that an extraordinary chunk of culture gets mired in unnecessary copyright regulation.

The solution before Congress, however, is both unfair and unwise. The bill would excuse copyright infringers from significant damages if they can prove that they made a "diligent effort" to find the copyright owner. A "diligent effort" is defined as one that is "reasonable and appropriate," as determined by a set of "best practices" maintained by the government.

But precisely what must be done by either the “infringer” or the copyright owner seeking to avoid infringement is not specified upfront. The bill instead would have us rely on a class of copyright experts who would advise or be employed by libraries. These experts would encourage copyright infringement by assuring that the costs of infringement are not too great. The bill makes no distinction between old and new works, or between foreign and domestic works. All work, whether old or new, whether created in America or Ukraine, is governed by the same slippery standard.

The proposed change is unfair because since 1978, the law has told creators that there was nothing they needed to do to protect their copyright. Many have relied on that promise. Likewise, the change is unfair to foreign copyright holders, who have little notice of arcane changes in Copyright Office procedures, and who will now find their copyrights vulnerable to willful infringement by Americans.

The change is also unwise, because for all this unfairness, it simply wouldn't do much good. The uncertain standard of the bill doesn’t offer any efficient opportunity for libraries or archives to make older works available, because the cost of a "diligent effort" is not going to be cheap. The only beneficiaries would be the new class of "diligent effort" searchers who would be a drain on library budgets.

Congress could easily address the problem of orphan works in a manner that is efficient and not unfair to current or foreign copyright owners. Following the model of patent law, Congress should require a copyright owner to register a work after an initial and generous term of automatic and full protection.

For 14 years, a copyright owner would need to do nothing to receive the full protection of copyright law. But after 14 years, to receive full protection, the owner would have to take the minimal step of registering the work with an approved, privately managed and competitive registry, and of paying the copyright office $1.

This rule would not apply to foreign works, because it is unfair and illegal to burden foreign rights-holders with these formalities. It would not apply, immediately at least, to work created between 1978 and today. And it would apply to photographs or other difficult-to-register works only when the technology exists to develop reliable and simple registration databases that would make searching for the copyright owners of visual works an easy task.

A hired expert shouldn't be required for an orchestra to know if it can perform a work composed during World War II or for a small museum to know whether it can put a photograph from the New Deal on its Web site. In a digital age, knowing the law should be simple and cheap. Congress should be pushing for rules that encourage clarity, not more work for copyright experts.

Meanwhile, over at the Art Law Blog, Donn Zaretsky dispels some lingering misconceptions about the new bill (thanks Ed!):

Thursday, May 08, 2008

Orphan Works Update    

A House panel unanimously approved the orphan works bill yesterday.  Daryl Lang of Photo District News looks at the split among photo associations that the legislation has "exposed" (pun intended, I assume).

Lang also addresses some of the misinformation about the bill that's been floating around:

"One point of disagreement concerns whether the bill would require artists to register their work with commercial databases to get copyright protection .... Holland has used this point to argue against the bill in several articles. The APA used similar language in a five-page position paper published Tuesday: 'All works, professional or personal, published or unpublished, will have to be registered with as-yet-to-be-created private, commercial registries.' No such requirement appears in either bill currently before Congress, and Perlman and PACA attorney Nancy Wolff say the statement is untrue. Both versions of the amendment mandate the creation of private databases of copyrighted works to facilitate the search for rights owners, but registration would not be mandatory for all creative works."              

posted by Donn Zaretsky at 9:26 PM

KRIEGSPIEL
Guy Debord's 1978 "Game of War"
Produced for computer by RSG
Screen shot courtesy of m.river, flickr.com

via post.thing.net and interactivist info exchange, 04/23/2008:
{additional links courtesy of newsgrist}

Guy Debord's Widow Threatens NYU Professor with Copyright Violation Professor Is Accused of Infringing the Copyright of a Man Who Opposed Copyright

By ANDREA L. FOSTER, http://chronicle.com/weekly/v54/i33/33a01603.htm

Guy Debord, a Marxist philosopher who died in 1994, was no fan of private property. But apparently his widow is one.

A lawyer representing the widow, Alice Becker-Ho, has threatened Alexander R. Galloway, an associate professor of culture and communication at New York University, with legal action. Mr. Galloway says the lawyer has sent him a letter demanding that he stop distributing his online war game, which the lawyer says infringes a copyright held by the Debord estate. The French philosopher had created a similar board game 30 years ago.

But copyrights and some forms of intellectual property were anathema to Debord, says Mr. Galloway. The Situationist International movement, which Debord founded, in 1957, is a mix of anarchism and Marxism. Its followers scrawled "Abolish copyright" on walls during the May 1968 student uprisings in Paris.

The humor in defending the property rights of Debord, a Marxist, has not been lost on scholars, who have publicized the case on their blogs.

Mr. Galloway does not deny that the two-person computer game he developed is based on Debord's creation, the Game of War. The philosopher, an avid student of war strategy, released a few handcrafted copies of the board game in 1978. The object of the game, which resembles chess, is to corner and destroy opposing pieces. Debord and his wife wrote a book about it that was translated into English last year.

<Image via, tirée du film In girum imus nocte et consumimur igni, Guy Debord, 1978.

One of Debord's games, cast in silver and copper, is on display at Columbia University's Buell Center for the Study of Architecture, alongside Mr. Galloway's computer version, called Kriegspiel. The object of Kriegspiel, German for a generic 18th-century war game, is the same as in Debord's game.

A computer programmer, Mr. Galloway says he spent about a year designing the digital game, which can be downloaded from the Web at no charge. "It's part of my scholarly research into how antagonism is simulated in war games and computer games," he said. "It's also part of my research into the work of Debord."

Despite the similarities between his creation and Debord's, Mr. Galloway disagrees that he is breaking the law. "I don't think I'm infringing on anyone's copyright in the creation of this game," he says, declining to discuss his legal situation further.

John Beckman, a spokesman for New York University, says only that it received a similar cease-and-desist letter and has responded.

Wendy M. Seltzer, a fellow at Harvard University's Berkman Center for
Internet & Society, is familiar with Mr. Galloway's case. The Debord estate, she says, is overreaching in accusing him of copyright infringement.

The idea for a game is not copyrightable, she argues; only the image of a game is. Mr. Galloway's game uses the idea of Debord's game, she says, but does not duplicate its artistry and detail. {note: this perfectly illustrates the Idea-Expression Dichotomy }

Ms. Seltzer, a visiting assistant professor at Northeastern University School of Law, sees similarities between Mr. Galloway's case and one involving the Facebook-based word game Scrabulous. In that case, the owners of the board game Scrabble have accused the developers of Scrabulous of infringing their copyright. Ms. Seltzer says that claim, too, is without merit.

[image Via]

There's an ongoing tug of war and a bit of hysteria issuing from several artists' organizations who would see this bill (two bills in fact) killed, while some, including the American Society of Media Photographers, have now gotten behind it (it was justifiably shot down in 2006, then given a major overhaul).

Inform yourself of the recent history of this bill and consider the pressing need to reform copyright legislation with regard to Orphan Works. Here's a start:

via Public Knowledge:

RESCUE ORPHAN WORKS!

CLICK HERE TO WRITE YOUR LETTER NOW

The House and Senate both introduced new legislation to allow for greater use of so-called "orphan works" - books, music, photos, movies or other works whose owners can't be found. Why are these bills important? Because there are literally millions of works in existence that are currently under copyright protection but for which the copyright owner cannot be easily found. Because if you use a copyrighted work without permission, you could be on the hook for statutory damages of up to $150,000 per work, orphans go unused.

Think of a diary kept by someone during the second world war and recovered from an attic. Think of a box of old photographs happened upon at a yard sale. Think of an illustration used in an advertisement but not clearly attributed. At the moment, these works are unavailable to publishers, filmmakers, collage artists and many other creative professionals who would like to use them and gladly pay for the privilege, but can’t because of the potential for massive penalties if the original copyright owner does emerge.

The newly introduced bills allow artists to use orphan works as long as that user makes a diligent effort to find the original copyright owner. In the unlikely event that the original owner does emerge, the compensation that a user pays should be reasonable. The two bills currently on the table - S. 2913, the Shawn Bentley Orphan Works Act of 2008 (PDF link) and H.R. 5889: The Orphan Works Act of 2008 (PDF link) - go a long way to address these issues and if passed, would grant the public access to millions of previously inaccessible works of art.

These Bills are being considered in their respective committees this week. We need you to write letters and call your Members of Congress to ask for them to support the bills and make a few tweaks.

[read on...]

More on the two bills being introduced, via PK:

Orphan Works 2008: House and Senate Bills Introduced

By Alex Curtis on April 24, 2008 - 2:34pm

11 comments

Two orphan works bills were introduced to begin to bring balance back to copyright law - to help find owners and encourage new and creative uses of unexploited copyrighted works. Both the U.S. Senate and House of Representatives have introduced orphan works legislation (S. 2913, the Shawn Bentley Orphan Works Act of 2008, H.R. 5889: The Orphan Works Act of 2008), rooted in the same language based on the previous Smith Bill, which was based on the Copyright Office’s recommendation. It's been a long time coming and from working with staff, I know they’re very happy to have the bills finally introduced. Reps. Howard Berman (D-CA),Howard Coble (R-NC), John Conyers (D-MI), Lamar Smith (R-TX), (Chairman and Ranking Members of House Judiciary Committee Subcommittee on Courts, the Internet, and Intellectual Property and Full Judiciary Committee Chairman and Ranking Member respectively) and Sens. Patrick Leahy (D-VT) and Orrin Hatch (R-UT), and their incredible staff members are to be congratulated for working to address concerns of both the user and owner communities.

The concept behind orphan works is simple: after a fruitless search to find the rightful owner, a searcher may then use a copyrighted work without the fear of hefty copyright infringement damages. Independent and documentary film makers, libraries, archives, and museums all have collections of orphaned works that they would like to transform into new works or display, but because they cannot find the owner to ask permission or license the work, the threat of copyright infringement (which carries statutory damages as high as $150,000 per work) freezes them in their tracks. These users already conduct exhaustive searches to track down owners, but for 99.999% of these orphans, the owners cannot be found for a number of reasons: a work wasn't registered, ownership was transferred but never recorded, a corporation went out of business, or the author died without heirs. The almost 20 page bills are drafted to address the 0.001% of the cases out there, to assure owners that the incentives for creation are not lost.

And both bills go a long way to address the fears of owners while at the same time trying to bring visual works owners into the 21st century. Safeguards are put in place to ensure that users put "diligent effort" into their "qualifying searches" (previously known as "reasonably diligent" searches). The Copyright Office will maintain and make available helpful search guidelines from owners and users in the industry and if challenged a court will consider whether the user’s actions were reasonable and appropriate for the circumstances and whether the user employed the applicable best practices. This will promote the creation and development of search guidelines and will help to match more orphans with their owners. The Copyright Office will also have to certify market-based registry services for visual art. We proposed and have written a lot about this idea to address the owners' problem of an ineffective registry. It’s not all that complex: because the Copyright Registry’s online search provides woefully inadequate results (only text based searches and results, no ability to compare digital works against an index of images), the market will fill the gaps so long as they meet some basic requirements. A number of services already exist to answer this call and this provision will further spur innovative uses of modern visual recognition technology - of which, unfortunately, visual artists have never collectively taken advantage.

In the unlikely event of an owner resurfacing, the bill provides for them to be reasonably compensated, and if the user acts in bad faith, the full panoply of copyright infringement damages rains down on them. This was done out of concern, again, for visual artists who have repeatedly said they’re not going to be able to take a claim to court because the value is too low. To go even further, the bills require the Register of Copyright to conduct a study (much like the one that lead to the creation of this orphan works legislation) on remedies for small copyright claims.

But now that the bills are introduced, that doesn’t mean the hard work is over.
[...snip! read full article...]

[...] There's still work to be done, but today's introduction is a big step forward. Having a bill out there with specific language helps a lot. Some of the visual artists are going to be already lining up to take their pot-shots at the bill. They'll try to add more exceptions and carve-outs as poison pills so users will have no use for the legislation. We hope that doesn't happen and will work hard with our film maker, library, museum, public television, and archive allies to make sure it doesn't. We're going to need your help, too, so sign-up on our site, join the FaceBook Rescue Orphan Works Cause, and stay tuned for an Action Alert to write your Member of Congress.  Again, many thanks to the House and Senate Judiciary Committee staff for all their work on this, the first pro-user change to Copyright Law in almost two decades.

And just to confuse you further, here is an intelligent, informed exception to supporting the bills written by Eric Eldred in response to the post above (in other words: it's complicated!):

I oppose the bills.

Submitted by ericeldred on April 27, 2008 - 12:40am.

I oppose the bills. 

Briefly, the original intent for Orphan Works legislation was to correct copyright market failure and improve efficiency. Proposed legislation veers from that purpose toward political compromises that make matters even worse.

In the early days of US copyright law, when the US was still a net importer of works, as China is today, copyright was limited to a short term and to few, specific, areas of protection for the author. After this short term, and outside the boundaries of that limited area, works entered the public domain and could be reused freely. This was considered important to preserve innovation.

As authors and heirs found they could make money from a copyright monopoly, they lobbied Congress for increased protection vs. the public, and they have always got it. With this legislation they get even more, and the public still loses.

Along come computers and the Internet so everyone can be an author and publisher.  What happens to the law?

If the copyright term were short and the area limited, then there would be no problem in exclusive rights to the author. If the copyright term is long and the area expanded, then this tinkering does nothing, it only adds to the rights of unknown parties who are not given incentives to produce new works, and it does not give new authors any incentives to reuse the old works, it simply distributes rights and obligations in some indeterminate new way.

Here is an example that might clarify the issue - perhaps you can show that I am mistaken. I want to publish a book on the Internet for free. I can determine that it is not in print but still under copyright by somebody. I guess that the copyright holder has no economic incentive to republish the work either for free or for money. I would be willing to do it for free, but not if it costs money to search for the holder or ask permission. It does cost money to do the search or ask permission, and it would cost me money if the copyright holder later determines I have violated his rights. So I will not publish the work. Basically, there is a conflict between the day-to-day operation of public, interactive, Internet publishing and the longterm copyright monopoly established in current law that is so one-sided for authors.

Congress could improve the efficiency of the market by requiring registration and the Library of Congress Copyright Office to maintain a free, accurate, and accessible database of all works. It will not do that, since it maintains that conflicts with international copyright law. The proposed legislation of privatization does nothing to solve this problem.

The proposed legislation instead tailors its application to that of specific interest groups, not the public domain. So it is intended for resourceful professional publishers that somehow can pay for production, including copyright searches, and control distribution. It adds more and different rights to the copyright monopoly and subtracts from the public domain, and potentially to the rights given to incentivize new works. No doubt these groups favor this redistribution of rights. I do not think the legislation is of general public benefit and so oppose it. If you do not agree, then please think about amending the bills to expire after a period of four years so the matter can be reassessed then.

More on Orphan Works and what's at stake, also via PK:

Statement of Documentary and Independent Filmmakers, et al., on Orphan Works to House IP Subcommittee

Statement of Doculink, Film Independent, International Documentary Association, Independent Feature Project, National Alliance for Media Arts and Culture, Public Knowledge, and Tribeca Film Institute

Subcommittee on Courts, the Internet, and Intellectual Property
Committee on the Judiciary
U.S. House of Representatives

March 20, 2008

Re: Orphan Works

Chairman Berman, Ranking Member Coble and Members of the Subcommittee,

Thank you for this opportunity to submit this statement for the record on the issue of orphan works. We are submitting this statement on behalf of the hundreds of thousands of independent and documentary filmmakers and other independent media producers who are members of, or represented by members of: Doculink; FIND (Film Independent); International Documentary Association; IFP (Independent Feature Project); National Alliance for Media Arts and Culture; Public Knowledge; and Tribeca Film Institute.

As a whole, we represent individuals and organizations that produce, exhibit, distribute, collect, preserve, and educate through independent film and media. Our group includes or represents filmmakers, video artists, production facilities, community technology centers, film festivals, media distributors, film archives, after-school programs, community-access television stations and individuals working in the field of film and media arts. We are creators and artists, who rely on our copyrights to protect our creations. In creating our works, we are also users of copyrighted material, and we encounter works that cannot be cleared on a regular basis. Orphan works reform is a critical need for us. As such, we are grateful for the opportunity to express the viewpoint of independent and documentary filmmakers and other independent media producers, and are delighted to offer our perspective on the important issue of orphan works.

Introduction

Independent and documentary filmmakers create without the benefit of sustained, large-institution backing. Like many artists in the United States, we work with very limited resources, but with great passion and energy, in order to make films and other cultural products that nourish the unique American marketplace of ideas. We rely on our copyrights to protect our vision and allow us to monetize a labor of love, and believe in strong and clear copyright protection. At the same time, many artists and supporting organizations are affected by the uncertainty surrounding the use of copyrighted works for which the owner cannot be found. This is an issue that affects all artists; for small filmmakers, however, the ensuing risk can simply be crippling. Films - even with the exciting advent of digital and other new technologies - are expensive to make. The independent filmmaker must marshal all of his limited resources to raise funds; find locations; rent or purchase equipment; cast actors; hire the many workers needed to produce a film; obtain permits; search archives; license music and footage; travel; edit; obtain insurance and legal representation; pay out funds to secure distribution channels for his work … and the list goes on.

When a filmmaker cannot clear an orphaned work, she is left with two choices under the present system: 1) proceed, using the work, with the knowledge that unknown liability costs- or even an injunction - may lie ahead; or 2) refrain from using the work. For the independent or documentary filmmaker today, there is no real choice.

[read on...]

Some recent history via Lessig.org (this analysis applies to an earlier version of the bill):

Copyright Policy: Orphan Works Reform

                February  1, 2007  3:34 AM - comments (34)

For almost a decade now, many of us have been pushing for copyright reform that would address the problems of orphan works. That was a key motivation behind the attack on the Sonny Bono Copyright Term Extension Act. It was the focus of my op-ed in the NY Times after we lost in that attack. That op-ed proposed one system for dealing with orphan works -- register your copyright after 50 years and pay $1; if you don't the work passes into the public domain. That proposal was the basis of Congresswoman Lofgren's "Public Domain Enhancement Act," which was partly responsible for Senators Hatch and Leahy asking the Copyright Office to study the problem of "orphan works."

The Copyright Office's report is brilliant. Its proposal is less brilliant. Its essence is that a work is deemed an "orphan" if you can't discover the copyright owner after a "reasonably diligent search." If the work is deemed an orphan, then the copyright owner's rights are curtailed.

I think this both goes too far, and not far enough.

Too far: By applying the remedy to all works immediately, the work imposes an unfair burden on many existing copyright holders -- who have followed a rule which since 1978 has said, don't worry about such details; it puts an especially unfair burden on foreign and unpublished copyright holders. In my view, photographers and other existing copyright holders are right to be outraged at the proposal. Hiding under the cover of "reasonably diligent search," much of their work will be -- unfairly -- threatened.

Not far enough: The trigger to the Copyright Office's Orphan Works Remedy is whether a copyright owner can be found with a "reasonably diligent search." That standard is just mush. The report outlines six factors to be considered in determining whether a search is "reasonably diligent." The effect of this complexity is simply make-work for lawyers. Libraries and archives will be unfairly burdened. Users won't be able to achieve any real security.

The alternative I propose is a kind of copyright maintenance procedure (like patent maintenance). It differs from the Copyright Office's proposal in three critical ways:

First: It applies just to old works, not to new works. For works after enactment, copyright owners get a 14 year grace period where they need not worry at all about any orphan work requirement. For work published between 1978 and today, there's no orphan work requirement until 2021. And for work published before 1978 (in a time when formalities were the norm), there is no requirement until 2012.

Second: It applies to published "United States works" only -- not to foreign works or unpublished work.

Third: The requirement it imposes after the 14/5 year delay is registration. But not registration with the copyright office; instead, registration with a private registrar approved by the copyright office. No government run registries here. Instead, something more like a DNS for copyright.

This chart at the top summarizes the differences.

You can download a one-page description of the proposal here.

You can download or stream the (35 minute) presentation here, or watch it on Google Video.

 

via Activate, 5-8-08:

Keeping tabs on Capitol Hill

Reuters/Jim Young

Politics and the Internet share an uneasy alliance. But the "character" issues and PR minutiae that dominate this year's US election coverage inspired Aaron Swartz to forge a new kind of connection between the message and the medium. It's called Watchdog.net.

Swartz is a computer programmer and former adviser to Creative Commons, an organization that is rewriting copyright laws and source transparency for the information age. He helped develop the first RSS reader in 2000, when he was 14. Today, the Watchdog team integrates multiple sources of public data about politicians with myriad communication tools. It wants voters to be more politically active and to escape the sound-bite culture of mainstream media.

"It's just one small thing I could do to put the discussion back on issues and things that really matter," says Swartz. As he and a team of volunteers continue to refine and expand the site, we spoke with him about his mission, Obama's mashup of politics and technology, and Lawrence Lessig's short-lived run for Congress.

AT: How do you envision Watchdog.net becoming a tool that encourages political engagement?

AS:  We're trying to use figures and graphs so people can really understand what's going on in a useful way. We want people to be able to pull out key facts and see that, for example, their congressman is one of the top ten recipients of earmarks, or he's one of the people who received money from drug companies and votes in their favor 90% of the time.

Right now, politics is kind of a spectator sport. You can read blogs and watch CNN, but if you really want to do something, you need to raise money and run for office. There's not much an average person can do, other than maybe subscribing to MoveOn.org's mailing list and calling your representative once or twice a year. We want to put together the tools so anyone can do the things that only groups like the ACLU or MoveOn.org are able to do; to build tools so people can start their own letter-writing campaigns, write their representatives, contact local media, and start local meetups about issues they care about, not the ones picked by a staff in Washington, DC.

AT: What are the technical challenges you're facing while building the site?

AS:  Figuring out how to piece together different data sources. Government agencies are releasing interesting documents, but they're in these ancient text formats, and weird, obscure databases people haven't used since the '70s. We’ve spent a lot of time making sense of those and piecing them together, which really hasn't been done before. The trickiest data set has been campaign-finance data, because the quality of the data is so poor and is submitted by these rushed campaigns. They're not very careful about it for a variety of reasons, so figuring out how to clean it up, categorize it, and show it in a form that makes sense is going to be the biggest challenge.

AT: How do you determine what does or doesn't get posted on the site and answer charges of bias?

AS:  Our policy is to provide as much information as possible. Right now we have information about earmarks, campaign contributions, and voting records. We don't want to be gatekeepers and say what people should care about. As long as something is factual, we'll keep it up. We want to let people start up their own little websites for their own campaigns. We've been very clear that we're never going to discriminate about who can use the site or bias the data. We want it to speak for itself. We're transparent and clear about what we're doing. All the source code and data we use is public and available.

AT: Where are you getting the money for Watchdog?

AS: We are funded by the Sunlight Network.

AT: Obama's campaign has been notable for, among other things, merging technology and politics. How has the Obama campaign done this in a new or different way?

AS:  His is the first frontrunner campaign in history where the majority of contributions have come from small donors. Those under-$100 donations were made over the Internet, and those [donors] are Obama's base. In the past, using the Internet was a nice way to raise money for an ad, but the real funding came from courting big donors at fancy parties. The big change is that he has a mailing list that allows him to raise a lot of money without having to go to these companies or PACs. The big question is whether he's going to take advantage of that as president.

AT: How do you imagine Obama could do that if he's elected?

AS:  He could put the full video of speeches and all his proposals online, where people can read them without being filtered by the major media. Soon he's going to have one of the largest mailing lists in the country. It's got several million names on it now. If the media is distorting one of his policy proposals or attacking him on an issue, he can send out a message on that mailing list that will get to his supporters and bypass others in a way that no president has ever been able to before. Hopefully, he'll start a blog from inside the White House.

AT:  What did you think of [Creative Commons' founder] Lawrence Lessig's short-lived campaign for Congress? Do you think he'll ever actually run in the future?

AS:  I worked on the Lessig campaign for a little bit, which is part of what got me thinking about Watchdog.net. I wish he would run. But we looked at the numbers and it was an impossible race on a short deadline. It came up because the incumbent [Tom Lantos] passed away and the seat was open for the first time in a very long time. Now we have this young candidate [Jackie Speier] in there who's probably going to hold onto the seat for decades and the opportunity won't come up again.

AT: You don't think it would be worth running against an incumbent? What is his next step then?

AS:  It's a really tough district to run in. Television time on San Francisco's local stations is very expensive, and you can't really go door to door because the district is very suburban and spread out. What Lessig is doing now with Change Congress — trying to take the message nationwide, as opposed to spending a lot of effort trying to get the message out in just one district — is a better use of his time. He knows how to communicate with a national audience. If we can mobilize a national movement, I think that's going to make a much bigger difference.

- This interview was conducted by Patrick Sisson

 via Eyeteeth, 4/30/08:

Vuitton bullies artist over Darfur image

 
Taylor reports that designer Nadia Plesner is getting sued by Louis Vuitton for showing the likeness of a Vuitton bag in a campaign to encourage divestment from Darfur. As a Vuitton lawyer claims in a February cease-and-desist letter, the bag pictured is the Monogram Multicolore, created by Vuitton art director Marc Jacobs and artist Takashi Murakami. "As an artist yourself, we hope that you recognize the need to respect other artists' rights and Louis Vuitton's Intellectual Property rights," the attorney wrote. Plesner, probably aware that artist's like Murakami have the right to appropriate and satirize the work of others, lawyered up and refused. Now, according to TechDirt, Vuitton is "demanding $7,500 for each day she keeps selling the product, $7,500 for each day she displays its original cease-and-desist letter and (my favorite) $7,500 for each day she mentions the name 'Louis Vuitton' on her website."

"Sometimes recognizable objects are needed to express deeper meanings, and in their new form become more than the objects themselves -- they become art," Plesner wrote in her response to Vuitton's initial letter. Indeed, as Sudanese troops and affiliated militias mow down civilians in Darfur -- as many as 300,000 have died there, according to a new estimate -- the culture of consumption in the west, represented aptly by this particular bag (which retails for $1,580 on the company's website), stands in stark contrast.

Plesner, hopefully boosted in her efforts by the suit, says she'll continue with her "Simple Living" series, which both raises awareness of the genocide in Darfur and generates funds -- 30 percent of sales -- to its victims.

Update: Vuitton has collaborated with artist Richard Prince, whose celebrated work includes Marlboro ads he re-photographs, without crediting the original photographer.

2 comments:        

Lisa @ Corporate Babysitter said...

GREAT STORY. Thank you.

ToddPeak said...

Ha, Taco Bell should be suing her, too.  That's their dog.

-Todd
www.weakcity.com