Tuesday, October 20, 2009
Thursday, October 15, 2009
Delaware Court on case of first impression holds photographs published on web in Germany not "published" in US
The opinion states that publishing the work (photos) in Germany is not "publishing" for purposes of the requirement for registration needed on US works in order to bring suit in the US, even though after published on the web in Germany the photos were immediately available on the web in the US.
The court states on page 8, "Thus, in a case of first impression, this Court must consider the correlation between the posting of foreign copyrighted works on a foreign website and the copyright holder’s ability to file suit for infringement in the United States pursuant to the United States Copyright Act."
The court has held that even though, in reality, when the photos were published in Germany they were simultaneously published in the U.S., "as a matter of statutory law" they were *not* published in the U.S.
The opinion doesn't describe that copyright registration is a relatively easy process, and registration is needed to bring suit, not to have copyright protection.
From the opinion:
“What appears to be a simple premise actually joins an issue of first impression not addressed by any court. Defendants contend that plaintiff’s photographs, which were created undisputably outside the United States, are United States works because when
they were posted on a German website, they were ‘published’simultaneously in Germany and in the United States . . . because the posting of a photograph on a website simultaneously ‘publishes’ the photograph ‘everywhere,’ including the United States, it is a ‘United States work,’ and as such, it must be registered prior to filing suit for infringement . . . Professor Cotter explains, however, that the determination of the country of origin is not so simple, as that determination hinges on whether the work is ‘published,’ and, if so, where the work is published . . . The Court does not need to delve into yet another unsettled issue, however, because even assuming that the German website ‘published’ plaintiff’s photographs, the Court holds that as a matter of U.S. statutory law the photographs were not published simultaneously in the United States.” Moberg v 33T LCC, US District Court Delaware
Friday, October 2, 2009
A comprehensive discussion of issues around the Communications Decency Act of 1996, Section 230, is located here:
An excerpt from this article by the Center for Democracy & Technology states:
"The four amicus briefs [filed by the CDT] essentially all argue for the same thing: a continued reading of §230 in the spirit that Congress intended and that a multitude of courts have so far followed. Any departure would otherwise stifle the provision's purpose and undermine industry strides towards responsible self-regulation. In those briefs, CDT argues that "intermediaries" - ISPs, websites, and online service providers that enable other people - Internet users - to post content onto the Internet should not be held liable for the content posted. To hold intermediaries liable would greatly chill their willingness to host online content created by others. To use a simple example, if the YouTube.com video sharing website had to be legally responsible for the content of the tens or hundreds of thousands of new videos posted to it each day, the site could not possibly continue to operate as an open forum for users' video expression."
The Citizens Media Law Project also provides a comprehensive overview:
And, another excellent discussion on David Johnson's blog
Thursday, September 24, 2009
Read more: http://chronicle.com/article/State-Directors-of-Community/48586/?sid=at&utm_source=at&utm_medium=en
Saturday, August 22, 2009
“From your unique perspectives, is there a limitation, either in terms of duration or percentage (or both), which could be incorporated into the definition of an exempted class of works?”
Specifically, the copyright office suggests the following language could possibly be used in the context of finished products (remixes) for crafting the new exemption:
“… the portions of any single work used shall be, collectively, no greater than x minutes in duration and represent no greater than y percent of the duration of that work….”
The questions also acknowledge how creating a quantity limitation might be objectionable to some, but since this is not a redrafting of section 107, but is instead an administrative rulemaking proceeding, they are asking for suggestions from hearing participants nonetheless. They state:
“Again, we recognize that for purposes of fair use, what may be a reasonable duration in one case will not necessarily be a reasonable duration in another case, we are not proposing to codify the fair use doctrine in this rulemaking proceeding. However, this is a regulatory proceeding and for the purposes of promulgating a regulation governing exemptions from the prohibition on circumvention, we are inclined to believe that more specific limitations are advisable so that, at least for purposes of predicting liability under section 1201(a)(1), users will find sufficient guidance in the regulatory text.”
The questions were emailed to hearing participants Friday August 21, 2009 at 5:38 pm, EST. Responses are due September 8, 2009 by 5 pm.
Friday, August 14, 2009
"Just one day after Judge Patel's ruling against RealDVD, a California appeals court has ruled against Kaleidescape, reversing the lower court and sending that case back for a fresh determination of whether Kaleidescape violated the terms of the DVD-CCA license."
Friday, August 7, 2009
The whole story: http://online.wsj.com/article/SB124932480886002237.html
Tuesday, June 30, 2009
The abstract reads:
"This paper describes results of focus group research conducted with senior advocacy lawyers in relation to the lawyers' characterization of expert legal writing. The results suggest an important interplay between product and process, and are consistent with general theoretical models of expertise that characterize the writing process as exploratory, recursive, reflective and responsive. The results may also be linked with existing studies of school to work transitions. The authors also describe how the research results tie into a longer term research project aimed at developing a description of increasingly sophisticated writing competencies that can be expected of lawyers as they progress through their careers."
The study they conducted is fascinating. Their citations include, of course, Flower & Hayes.
Thursday, June 25, 2009
To quote from Kaitlin Mara's article on the IP Watch:
"Video is becoming an increasingly important communication tool on the web, but questions must be asked about its future, said speakers a recent conference. Will it be a medium of self-expression, available for all, or a translation of television to the internet, where content is provided by some and consumed by the rest? A gathering of technologists, academics, filmmakers and others in New York last week issued a call for a freer video culture."
For the full article--
Monday, June 22, 2009
The questions are below. One set of questions is about whether or not screen capturing software works with DVDs and whether or not screen capturing software circumvents the anti-circumvention technologies --CSS of DVDs. The other set of questions is about whether or not the exemption to 1201 could be fairly applied to documentary filmmakers (as a "class" under the statute) and if so how you'd define that class. (Currently the exemption for film studies professors is set to expire in October).
To give a brief context for these questions, the U.S. Copyright Office, during the hearings, was probing for a method for users to remix DVD content without circumventing, and without having to video record TV screens by setting up tripods in their living rooms. The MPAA would not say that screen capturing software was legal under 1201 even when asked directly about this topic during the hearings. I have blogged more about this in this blog if you are interested in details.
In the preface to its questions, the copyright office says that the questions themselves *should not* be interpreted as indicating a recommendation. The recommendation is due in October 2009 from the Copyright Office. See http://www.copyright.gov/1201/ .
Question Set #1 (Quote from Copyright Office Communication)
At the hearings, the MPAA introduced evidence that videotaping the output of a television screen was an alternative to circumvention for desired noninfringing uses by users. In addition to capturing the output of a television or computer screen with a video camera, screen capture software exists for a wide range of purposes. At the hearings, one particular software program was used to illustrate that software-based screen capture is capable of reproducing the output from a CSS-encrypted DVD. Examples of such capture software include: [here the copyright office listed three software producers - this information will be available on the DMCA website and also will be referenced in answer to the questions when those answers are posted on the DMCA U.S. gov website-and is also in the transcripts which are available now on the DMCA site-and likely FOIA-able http://www.copyright.gov/1201/]. The questions below relate to the capture of clips from CSS-protected motion pictures on DVDs.
Please explain whether the legal consequences of using capture software differ from the legal consequences of using a digital video camera (with particular reference to 17 U.S.C. § 1201).
Is it a violation of § 1201(a)(1) to use screen or video capture software (hereinafter "capture software") to reproduce clips from copyrighted motion pictures or audiovisual works?
Is there particular capture software that decrypts the Content Scrambling System on DVDs?
Is there particular capture software that does not decrypt the Content Scrambling System on DVDs?
To the best of your ability, please explain how screen capture software operates, e.g., does reproduction take place after the work is lawfully decrypted?, Does the capture software reproduce the digital output from the computer, or does the capture software reproduce the analog output from the computer? Does this analog/digital distinction matter for determining whether a violation of § 1201(a)(1) is taking place?
Is the output encrypted at the time of capture by the software or is the output decrypted at the time of capture?
Do different screen capture programs involve significantly different methods of capturing screen and/or audio output?
There was an example of screen capture software at the § 1201 hearings and some witnesses pointed out that the example presented revealed quality degradation, e.g., pixelation. Can capture software be adjusted in order to affect the quality of the reproduction of the video or audio captured? If so, how?
Can the computer on which the capture software resides be adjusted to affect the quality of the output, i.e., by adjusting the settings of the operating system, video card or sound card software rather than the settings within the capture software itself?
It was claimed that screen and video capture technology does not work with Microsoft Vista. Is this true, and if so, why?
Are there other operating systems on which screen capture software will not operate?
Question Set #2 (Quote from Copyright Office Communication)
The first two questions envision a scenario where a user intends to reproduce a small portion of a motion picture or audiovisual work on a CSS-encrypted DVD for a particular use, such as the use of a portion in a documentary film.
Can a portion of a motion picture on a DVD protected by CSS be decrypted, leaving the remainder of the motion picture encrypted by CSS?
Is it necessary to make a copy of the entire motion picture as a first step in order to make a copy of only a portion of the motion picture?
Documentary filmakers' proposed class of works limited the persons who would be eligible to invoke the exemption to a documentary filmmaker, who is a member ofan organization of filmmakers, or is enrolled in a film program or film production courseat a post-secondary educational institution. Is it appropriate to limit the persons who would be eligible to invoke the exemption? Why? If you believe it would be appropriate, what criteria could be used?
Are there any other appropriate ways to properly tailor the scope of the exemption?
Rhetoric, Professional Communication, and Globalization
Barry Thatcher (Founder/Editor in Chief), New Mexico State University
Kirk St. Amant (Assistant Editor in Chief), East Carolina University
This Journal publishes research articles on the theory, practice, and teaching of professional communication in critical global contexts such as business, manufacturing, law, health, education, technology, environment, and others. The Journal welcomes articles with diverse rhetorical styles and contexts of research, but articles are to be submitted in English and grounded in relevant theory and appropriate empirical research methods. The Journal is a global effort with the editorial board consisting of researchers and practitioners from over 20 countries. The Journal’s objectives are to:
- Develop better theoretical models of global professional communication.
- Develop a variety of valid and ethical research methodologies for global professional communications.
- Improve the practice of global business and manufacturing through more effective communication.
- Improve the professional communication in critical cross-cultural and international contexts such as the environment, immigration, health, energy, economics, and human rights.
- Develop sets of issues and research agendas that address the most pressing issues and challenges for communicating in a context of globalization.
- Develop better curricula and materials for teaching global professional communication, not only in the United States and Europe, but around the world. Special attention will be given to developing nations.
The journal will be free or “open access” using PKP open source software and housed at Eastern Carolina University. The first edition is planned for June 2010, and it will be published thereafter on a quarterly basis. We will start accepting manuscripts in late fall 2009. Watch for it online as www.rpcr.org. For more information on the journal, contact Barry Thatcher (email@example.com) or Kirk St. Amant (firstname.lastname@example.org).
Thursday, June 4, 2009
Saturday, May 30, 2009
Acting Sua Sponte, the Second Circuit Creates Copyright Controversy that the U.S.Supreme Court Will Now Consider
Sua Sponte is acting independently, of one’s own accord. While the recently filed Elsevier et al. brief (http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/08-103_Petitioner.pdf) characterizes the lower court’s behavior as sua sponte, after reading the opinion I’m not sure I agree. In fact, it appears the lower court, the second circuit court of appeals, was merely bringing forth arguments made by Elsevier et al. during settlement/mediation discussions. The lower court case was In Re: Literary Works in Electronic Databases Copyright Litigation, 509 F. 3d 116.
Now at the Supreme Court level, the case is named Reed Elsevier, Inc. v. Muchnick (but involves multiple parties on both sides of the issue). The case will be scheduled for oral argument in the October 2009 term of the Supreme Court. Currently, briefs are being filed in the case. The docket can be followed here:
Question presented is:
Does 17 U.S.C. §411(a) restrict the subject matter jurisdiction of the federal courts
over copyright infringement actions?
411(a) is a section of title 17 that requires registration of copyrighted works in order to institute an action for copyright. The language reads as follows:
(a) Except for an action brought for a violation of the rights of the author under section 106A(a), and subject to the provisions of subsection (b), no action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title. In any case, however, where the deposit, application, and fee required for registration have been delivered to the Copyright Office in proper form and registration has been refused, the applicant is entitled to institute an action for infringement if notice thereof, with a copy of the complaint, is served on the Register of Copyrights. The Register may, at his or her option, become a party to the action with respect to the issue of registrability of the copyright claim by entering an appearance within sixty days after such service, but the Register's failure to become a party shall not deprive the court of jurisdiction to determine that issue.
The docket shows recent events in the case are as follows:
Mar 2 2009 Petition GRANTED limited to the following Question: Does 17 U. S. C. Sec. 411(a) restrict the subject matter jurisdiction of the federal courts over copyright infringement actions?
Mar 12 2009 The time within which to file the joint appendix and petitioners' brief on the merits is extended to and including May 18, 2009.
Apr 2 2009 Deborah Jones Merritt, Esq., of Columbus, Ohio, is invited to brief and argue this case, as amicus curiae, in support of the judgment below.
Apr 6 2009 The time for respondent Muchnick, et al. within which to file their brief on the merits in support of reversal is extended to and including June 1, 2009.
Apr 6 2009 The time within which to file brief of amicus curiae in support of the judgment below is extended to and including July 31, 2009.
Apr 6 2009 Any amicus curiae briefs in support of reversal are to be filed on or before June 8, 2009.
Apr 6 2009 Any amicus briefs in support of the judgment below are to be filed on or before August 7, 2009.
May 18 2009 Brief of respondents Letty Cottin Pogrebin, et al. in support filed.
May 18 2009 Joint appendix filed.
May 18 2009 Brief of petitioners Reed Elsevier, Inc., et al. filed.
So far, briefs on the same side of the issue (the publishers’ side) have been filed by Letty Cotin Pogrebin et al. and Reed Elsevier et al. The stance espoused in these briefs is that the second circuit was wrong in its holding and that the court should in fact have jurisdiction in order to certify the class and subsequently approve the offered settlement although some or most of the class involved in the settlement have copyrighted works that have never been registered as required under 411(a). Amicus briefs in support of the judgment below, i.e. the second circuit holding that the court does not have jurisdiction to certify the class and approve the offered settlement, do not have to be filed until August 7, 2009. Therefore, this case will be one to watch develop over the summer.
Basically, what happened in this case is that a class action settlement was reached subsequent to an earlier case New York Times Co. v. Tasini, 533 U.S. 483 (2001) . As part of the settlement process, a class must be defined and certified. If you recall, Tasini involved a dispute between freelance authors and newspapers at a time when writing went digital so quickly that corporate interests had failed to anticipate. With respect to the current Supreme Court case:
“This case presents an issue of exceptional importance to the nation’s freelance authors, newspaper and magazine publishers, archival databases, and the researching public. Its resolution will decide whether, in connection with the nationwide class action spawned by the New York Times v. Tasini case, the parties may globally settle their differences by compensating and releasing the claims of freelance authors with respect to all their contributions to the databases. Tasini expressly contemplated that databases, publishers, and authors could reach a court enforceable global settlement. On that basis, the parties and publisher spent over four years of intensive negotiations to reach an industry-wide settlement that was approved” (Elsevier Brief, p. 2).
The second circuit had been considering an appeal from the (lower) district court’s certification of the class in a class action lawsuit. “The precise issue on appeal was whether the district court had jurisdiction to certify a class consisting of claims arising from the infringement of unregistered copyrights and to approve a settlement with respect to those claims. It did not” (In Re, p. 2).
Tasini held that that if freelance authors’ writings were to be distributed and/or archived in electronic databases and formats, publishers had to have express licenses from those authors.
The second circuit (Judges Winter and Straub, Judge Walker dissenting) characterized Tasini as follows: “The contracts did not grant the publishers the right to electronically reproduce those works or license them for electronic reproduction by others. But the publishers did so anyway” (In Re, p. 4).
While in the present case, Elsevier et al. characterizes Tasini a bit differently:
“Tasini effectively compelled electronic publishers to purge their databases of many hundreds of thousands of newspaper and magazine articles for which written licenses had not been obtained. Obtaining such licenses retrospectively would be an insuperable task, given the sheer number of authors and works involved and the practical difficulties associated with finding the authors and executing individual agreements with each of them . . . following the second circuit’s Tasini decision, more than a score of freelance authors, supported by national authors’ rights trade organizations, filed lawsuits against online databases and certain publishers” (Elsevier, p. 2)
Here’s a quote from the brief filed May 18, 2009 by Reed Elsevier et al. describing how the issue now before the Supreme Court had arisen in the lower court, the second circuit:
“Shortly before argument, the second circuit panel sua sponte requested briefing on ‘whether the district court had subject matter jurisdiction over claims concerning the infringement of unregistered copyrights’ . . . All parties, including the objectors, responded that the district court had jurisdiction to approve the settlement” (p. 7).
But from my view, in the second circuit opinion, rather than acting completely independently of the parties involved, the court invoked the defendants’ (the publishers) arguments in reaching its decision:
“Before the mediator, defendants contended that this litigation possessed scant settlement value because the District Court could never certify the vast majority of the claims for inclusion in any proposed class.” Citing 411(a), the Defendants stated: “That rule . . . whose language could hardly be clearer, precludes the certification of any class respecting works in which a copyright has not been registered . . . the District Court lacks jurisdiction . . . to certify a class covering any unregistered works” (In Re, p. 5). The second circuit also pointed out that defendants provided survey evidence showing that only 1% of journalists registered their work and subsequently 99% of the claims at issue in the class were covering unregistered work.
So briefs asserting arguments in support of the second circuit decision have yet to be filed. This is an interesting case because it pits two sets of publishing stakeholders against each other in a rather unique fashion. (Publishers on one side, and authors and author trade organizations on the other side).
The case presents a sort of irony to some of the arguments made in comp/rhet that information should be set free, or that corporate interests should not over-regulate our use of information. In this case, the large publishers are arguing against their usual position – that information should be locked up, and in this case are arguing how sad it is that databases have had to be purged because copyright holders cannot be located (along the lines of the interests in the Orphan Works Act). In this case, publishers want to have free reign over the works of authors who did not expressly license their materials to be published in perpetuity in digital formats – freelance authors who I’m guessing were not paid much and were not provided health insurance, retirement, job security, and so on, i.e., marginalized peoples, in some ways.
My idea here is supported in some of the discussion in the second circuit opinion at issue. The class that was formed as a basis for the settlement before the lower court included three classes, A, B, and C.
“Category A claimants receive a flat fee. Category B claimants receive the greater of either a flat fee or a percentage of the original price of the work. By and large, Category C claimants also receive the greater of either a flat fee or a percentage of the original price of the work. Importantly, if the cost of all claims (plus the cost of notice, administration, and attorney’s fees) exceeds $18 million, then the amount paid to Category C claimants is reduced – potentially to zero – before the claims of Category A and B claimants are affected. This feature is called the ‘C-reduction.’” (In Re, p. 2) Category C claimants were largely those whose works had not been registered, and so the justification for their lower status in the settlement, according to the second circuit, was posited by the defendants as fair treatment since C claimants’ claims were for the most part worthless since they had not registered their works. The plaintiffs, according to the second circuit, basically agree with this.
So, what this boils down to is that the case is not really about whether or not information should be set free, but whether or not the publishing industry will benefit to the detriment of freelance authors, from inadequately anticipating the implications of the digital age rather suddenly befalling us in 2001.
I will be interested in following this case, and I’m willing to see how the arguments unfold. I also will commit more time to re-read Tasini and surrounding documents. But my inclination is to favor the holding in the second circuit that the court has no jurisdiction to approve a settlement that involves copyright claims and authors who have never registered their works.
I see some logical problems in the briefs I’ve read so far. If the court accepts the settlement via acknowledging jurisdiction, it is in effect preempting a copyright owner’s right to register their work – this seems a strange result. What I mean is, if the court had approved the settlement, it means that an author could register a work and be granted an official copyright, which would be meaningless due to the settlement. So that seems like a bizarre result. The other problem I have is that I interpret 411(a) as presenting a bar to the more powerful party in a copyright action, the copyright holder wishing to institute an action to enforce his/her rights. But in the present case, it’s being requested that 411(a) be used, or rather ignored, to present a bar to the weaker party in the copyright action, the author who never registered his/her work. In this case, the weaker party is *not* instituting the action. So, if the court would assume jurisdiction and rule in favor of taking rights from a party who had never registered their work, 411(a) would be inverted from what seems to me to be its intended purpose.
Further, the second circuit argued that if it were to assume jurisdiction in this case: “defendants’ position calls for an exception vastly broader than is found in any case by asking us to rule that registration of one party’s copyright would somehow provide jurisdiction over claims stemming from the unregistered copyrights of many other parties. We decline to do so” (In Re, p. 8).
So this is very problematic to me, and would produce inequitable results if it were embraced by the Supreme Court. In general I will be one to favor the weaker party in the lawsuit when the stronger party is moving against it, and thus has the burden. This is especially true in this case because the weaker party is not even present in the case both because of lacking registered works, and because of the possibility of being “represented” in the class (but remaining invisible) if it is indeed certified. The fair thing for the Supreme Court to do in this case is to affirm the second circuit. This seems very clear after reading the second circuit opinion which is available for free on its website using a search for docket number 05-5943.
http://www.law.cornell.edu/supct/html/00-201.ZS.html (New York Times v Tasini)
Citation for Second Circuit Opinion Being Appealed: 509 F.3d 116; 2007 U.S. App. LEXIS 27558; 85 U.S.P.Q.2D (BNA) 1217; Copy. L. Rep. (CCH) P29,494
Gale Group, Inc.
Dow Jones & Company, Inc.
Dow Jones Reuters Business Interaction, LLC
Knight Ridder, Inc.
Knight Ridder Digital
News Bank, Inc.
Pro Quest Company
Reed Elsevier, Inc.
Union-Tribune Publishing Company
Copley Press, Inc. EBSCA Industries, Inc.
Participating Publisher Tribune Company
Deadline for final manuscripts: January 15, 2010
I am co-editing an Intellectual Property-focused special issue of Computers and Composition with Danielle Nicole DeVoss, John Logie, and Steve Westbrook. I've pasted the call below and it can also be accessed as a pdf file here:
CALL FOR MANUSCRIPTS
special issue of Computers and Composition, volume 27 issue 3, September 2010
Copyright, Culture, Creativity, and the Commons
In 1998, Computers and Composition and Kairos both published special issues related to intellectual property. Much has changed in the 11 years since those special issues, including new legislation, proposed legislation, and the rise and fall of file-sharing spaces like Napster and Kazaa. Further, issues not addressed in the earlier special issue require the attention of computers and writing scholars, including global and international issues related to intellectual property, feminist and ecofeminist research in intellectual property, and issues of cultural cannibalism and intellectual commons. This special issue will attend to these—and other—issues, with a particular focus on the cultural consequences of our expanded sense of what counts as “property” in digital spaces.
Questions we invite authors to consider and respond to include, but are not limited to:
* Where are the significant intersections between intellectual property and computers and composition? What intersections have thus far remained invisible or buried?
* What significant changes have occurred in U.S. copyright law in the past 15 years? In international copyright law, policies, and approaches?
* What global, international, or cross-cultural intellectual property issues should we be attentive to?
* How might our understandings of “the commons,” the concept of shared or “community-owned knowledge,” and the notion of “cultural appropriation” contribute to conversations on copyright and/or intellectual property?
* What are some of the ways in which feminist/ecofeminist scholarship in intellectual property, and understandings of sustainability can inform or extend our approaches to intellectual property?
* What are some of the ways in which cultural rhetorics scholarship in intellectual property can inform or extend our approaches to intellectual property? For example, is there a connection between racism and the commodification of culture via intellectual property regimes? A connection with sexism? Where are the intersections between discourses of race and/or gender and intellectual property-related discourse?
* Are there better vocabularies, terms, and theories for us to drawn upon to situate and study “intellectual property?” Is it possible to recognize and/or attribute “intellectual property” in places other than formal legal regimes?
* How have intellectual property issues become more immediate with regard to the continual growth of and use for digital writing spaces? New media texts?
* In what ways can our long history of analyzing authorship and ownership of texts, including our discussions on issues of plagiarism and attribution, contribute to how we approach intellectual property issues? In what was does this long history perhaps submerge issues we
might be discussing?
* In what ways can writing instructors and researchers enter into public discussions about intellectual property?
The special issue will consist of: 1) a special issue editors’ introduction, which will provide some historical, legal, and philosophical context; 2) approximately 6–7 articles addressing issues of intellectual property, focusing on those issues that have arisen since the 1998 special issues; and 3) a roundtable-style-discussion piece capturing the interactions of key figures in intellectual property scholarship within and beyond computers and writing (e.g., Jim Porter, Ty Herrington, Jessica Reyman, Jessica Litman, Kembrew McLeod, Siva Vaidhyanathan, Rebecca Moore Howard, Vandana Shiva, Johndan Johnson-Eilola, and Peter Yu).
Deadline for manuscripts: September 15, 2009 (response by November 15) Deadline for final manuscripts: January 15, 2010
Please direct questions and email manuscripts to the special issue editors:
Martine Courant Rife
Lansing Community College
California State University, Fullerton
Dànielle Nicole DeVoss
Michigan State University
University of Minnesota
Friday, May 29, 2009
University of Ottawa law Prof. Michael Geist is Successful in Having Canadian Conference Board Recall Copyright Reports
"In a notice posted on its website Thursday, the board said it was recalling Intellectual Property Rights in the Digital Economy; National Innovation Performance and Intellectual Property Rights: A Comparative Analysis; and Intellectual Property Rights-Creating Value and Stimulating Investment."
Thursday, May 28, 2009
According to an announcement from the EFF (Electronic Frontier Foundation), "last week, the Copyright Alliance Education Foundation (a nonprofit mouth piece for the entertainment and software industries) unveiled plans to spread its protectionist ideas to the nation's schools and libraries through the distribution of a curriculum titled 'Think First,Copy Later.'"
The EFF states that the "Think First, Copy Later" curriculum is similar in nature to other intimidating educational materials produced by corporate interests such as the MPAA, RIAA, Business Software Alliance -- these types of educational materials are created, according to the EFF, to "scare students into believing that making copies is wrong."
But what students and teachers don't need, is more intimidation. Instead, the EFF recognizes that what is needed is "solid, accurate information that will help them make smart choices about how to use new technologies." In response to this, EFF has just launched a free, Creative Commons-licensed "Teaching Copyright" curriculum and website "to help educators explore copyright issues in their classrooms."
The materials appear to be very easy to navigate and understand, and will "encourage students to discover their legal rights and responsibilities — including how to make full and fair use of technology that is revolutionizing learning and the exchange of information."
The EFF teaching materials and curriculum can be accessed here:http://www.teachingcopyright.org/
Wednesday, May 27, 2009
"Michael Geist, a Canada Research Chair at the University of Ottawa, said the new study on the digital economy from the self-described 'independent' research organization is a 'deceptive, plagiarized report' that copied passages from the International Intellectual Property Alliance, including one instance without any attribution."
"The Conference Board report calls Canada 'the file-swapping capital of the world' and calls for strict new copyright legislation as well as new power for border guards to deal with counterfeit and pirated goods."
So far the Board has been accused of plagiarism, and has been asked to withdraw its report.
However, the Board admits:
"According to the Conference Board, the report was funded by the Canadian Anti-Counterfeiting Network, the Canadian Intellectual Property Council, the Copyright Collective of Canada and the Ontario Ministry of Research and Innovation as well as other lobby groups who are pushing for stronger Canadian copyright legislation."
This is a really interesting area of the law developing in Canada - it appears to be one of those cases where the "researcher" ignores evidence that is against the researcher's own position. It seems to be that step-by-step U.S. corporate interests will have their way in Canada.
Thursday, May 21, 2009
According to the Congressional International Anti-Piracy Caucus briefing paper: "Canada: The country does not have legislation or legal rulings that 'clearly provide an effective means for copyright holders to protect their works from online piracy. This legal void has made Canada an attractive location for illicit Web sites, and Canada has regrettably become known as a 'safe haven' for Internet pirates.'"
Wednesday, May 20, 2009
"Because one unfounded and unsupportable designation as a pirate nation is never enough, the U.S. Congressional International Anti-Piracy Caucus has placed Canada on a watch list alongside China, Mexico, Russia and Spain. This is a separate list from the USTR Special 301 list."
Just today I revised a chapter that I hadn't read in two years. It discusses Canada's amazing CCH opinion, an opinion that took the US fair use doctrine and broadened it. Copying (fair use) for research, private and commercial is legal in Canada. Downloading for private use is legal, and uploading is not illegal. Canada has taken a pretty clear stand on protecting user rights - the country probably has the broadest user protection of any country. And you can see the results. Obama's committed to enforcing IP rights and will appoint a Czar soon. The content industry will continue to exert pressure, lobbying pressure, on US politicians, and in turn, Canada will continue to be a focus of US attention in this area.
Cnet News reports today that Adonis Gladney has been convicted of selling fake Microsoft product keys.
"Gladney, 24, is believed to be the first person convicted for DMCA violations dealing with the circumvention of security protections on software, according to Assistant U.S. Attorney Craig Missakian. Typically, product keys are used to activate software and are printed on Certificate of Authenticity labels that accompany legitimate products."
My opinion is that there's always a balance to be maintained between users/creators and corporate interests. It was clear at the rulemaking hearings that the DMCA's anti-circumvention provisions are completely useless and ineffective. Users are circumventing and creating all kinds of digital remixes. The corporate interests have no choice but to now go after those who sell these kinds of tools that permit hacking. This result also gives me hope though, because maybe the tides are turning for those who circumvent in order to make a fair use of existing materials. If the copyright office grants an exemption to the DMCA for educational users, it will probably be a matter of days before the corporate interests create licenses that permit users to circumvent, and then offer a cheap, legal tool for doing so.
Tuesday, May 19, 2009
Friday, May 15, 2009
"When the White House photos first appeared on Flickr in April, Fred Benenson of Creative Commons and others pointed out that the government couldn't grant a CC license on content to which it didn't own the copyright and hypothesized that the administration likely chose a CC Attribution license as the least restrictive option available to it because Flickr "doesn’t allow their photographers to choose Public Domain as an option to release their work to the world." (As Hugh D'Andrade of EFF pointed out, Flickr does have a public domain option (of sorts) on the "Commons" portion of its site, which acts as a repository for certain public photography collections. This "No known copyright restrictions" label, however, is only available to participating institutions like The Library of Congress and The Brooklyn Museum.) "
"The tape recordings will be made available on the Web at http://www.nixonlibrary.gov beginning at 9 a.m. (EDT)/6 a.m. (PDT). The textual materials will be made available at the National Archives building at College Park, MD beginning at 11 a.m."
Thursday, May 14, 2009
Wednesday, May 13, 2009
Tuesday, May 12, 2009
I will be creating an annotated archive and resource this summer.
Monday, May 11, 2009
A New Study Shows Copyright Exception for Legalising File-Sharing is Feasible, as a Cease-Fire in the “War on Copying” Emerges
"A landmark study by the Institute of European Media Law (EML) found that a levy on internet usage legalising non-commercial online exchanges of creative works conforms with German and European copyright law, even though it requires changes in both. The German and European factions of the Green Party who had commissioned the study will make the “culture flat-rate,” as the model is being called in Germany, an issue in their policies. The global debate on a new social contract between creatives and society is getting more pronounced by the day. Two models are emerging: a free-market approach based on private blanket licences and voluntary subscriptions, and a legal licence approach based on exceptions in copyright law and mandatory levies, that now has been proven legally feasible and appropriate by the EML study."
Sunday, May 10, 2009
No one in the room, either those representing the motion picture industry, the copyright office panelists, nor those testifying in favor of the use, could say whether or not such screen capturing software is accomplishing a "circumvention" of technological protection measures.
So that question was left open.
Another question that arose, was whether or not an exemption for copying is even needed, since the DMCA was never intended to prohibit circumvention for purposes of copying as opposed to circumvention for purposes of gaining access. The MPAA and those opposing the exemption, argue that since both the access and copying controls are folded into one, to circumvent for copying is the same as circumventing for gaining access. I asked the copyright office to address this in its recommendations. They discussed it in the April 3, 2006 transcript, but never made a determination on this issue. The legislative summary I quoted from during my testimony clearly states that it is not the intention of congress to stop people from circumventing in order to make copies.
Another interesting development, was that there was consensus from the other side of the aisle, those opposing the exemption, that the kind of use I showed, a student created montage done for an academic conference, a course seminar, and submitted towards degree completion, was certainly a "fair use" under section 107.
General info about the DMCA rulemaking hearings:
Audio files for the educational exemption hearing, created by the EFF (my testimony is an Mp3 file here).
Mp3 of my testimony on the educational use exemption.
Rebecca Tushnet's blog
Center for Social Media Coverage
I will add to this resource list as information becomes available.
Saturday, May 9, 2009
Notice appearing in the Federal Register, E9-10577:
In 1976, an object was removed from a cave in Port Malmesbury, Kuiu
Island in Southeast Alaska, by a Forest Service archeologist. The
object is a wooden artifact that is believed to be a funerary object
since the cave where it was removed from contained human remains and
associated funerary objects. The human remains and associated funerary
objects that were removed from Port Malmesbury, Kuiu Island were
repatriated to the Organized Village of Kake in 1998, and are described
in a Notice of Inventory Completion previously published in the Federal
Register (63 FR 18034-18035, April 13, 1998). Due to an administrative
oversight this funerary object was not included.
Historical and ethnographic records, along with Tlingit oral
history, indicate that a smallpox epidemic in the 1800s decimated the
Tlingit communities on Kuiu Island and the survivors moved to Kake and
Klawock. The members of the Killerwhale clan in these villages are the
descendants of these survivors.
Officials of the U.S. Department of Agriculture, Tongass National
Forest have determined that, pursuant to 25 U.S.C. 3001(3)(B), the one
object described above is reasonably believed to have been placed with
or near individual human remains at the time of death or later as part
of the death rite or ceremony and are believed, by a preponderance of
the evidence, to have been removed from a specific burial site of a
Native American individual. Officials of the U.S. Department of
Agriculture, Tongass National Forest also have determined that,
pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group
identity that can be reasonably traced between the unassociated
funerary object and the Klawock Cooperative Association and Organized
Village of Kake.
Friday, May 8, 2009
What a great resource!
Saturday, May 2, 2009
I cannot understand why the US ignores that fact that inserting its laws in other countries, is inserting its culture. Some of these cultures are incommensurable with the western IP paradigms . . .there are ways to accomplish goals of protecting IP, but not by ignorning the real problems of cultures with very conflicting paradigms about authorship, individuals, and ownership.
Thursday, April 30, 2009
Friday, April 24, 2009
A recent Cnet article states that: "Under a law approved by the U.S. Congress last October, Obama is required to appoint someone to coordinate the administration's IP enforcement efforts and prepare annual reports."
Here is a letter supporting a pro-copyright enforement czar:
Here is a letter supporting a more balanced approach: "In selecting these officials, we ask you to consider that individuals who support overly broad IP protection might favor established distribution models at the expense of technological innovators, creative artists, writers, musicians, filmmakers, and an increasingly participatory public."
"A team of education experts from Michigan State University will play a key role in a $75 million, U.S.-funded effort to improve basic education in Pakistan by improving teachers’ training and skills over the next five years."
I recently submitted a journal article for review on the topic of the Axact v. SNR case. That case involves an international dispute between Pakistani-based Axact, and New Jersey-based SNR. Each company alleges the other sells student term papers, each company vehemently denies this. The evidence is very compelling against Axact - and the New Jersey District Court awarded over $300,000.00 in a default judgment against Axact and in favor of SNR. The cultural differences though between Pakistan and the US with respect to education, is worth further exploration (in the context of selling student papers).
The article states:
“It’s unfortunate, but in Pakistan teaching is one of the least-respected professions,” Mabokela said. “And so the level of training and the quality of students that enter the profession is considered to be on the lower end of the spectrum.”
And the article further states:
"Mabokela will lead two small teams of scholars and administrative staffers – one based at MSU and one in Islamabad, Pakistan. The first task is collecting data and determining the needs to create the curriculum for secondary-level teachers. Eventually Mabokela plans to tap College of Education faculty members in math, science and other subjects to help shape the curriculum. Mabokela and her team also will conduct research stemming from the initiative."
“It is challenging in that we are working in an environment that socially and culturally is not particularly hospitable to U.S. foreign policy,” Mabokela said. “But I think people, without being hysterical, are being very prudent in making sure the security details are being attended to.”
"Mabokela said Pakistan’s poor teacher training is reflected in the country’s literacy rates: Only 46 percent of the population is literate, while only 26 percent of females are literate, according to Pakistan’s Ministry of Education."
This will be a big job for the MSU scholars. The differences between these two countries go very deep, as evidenced in the Axact v. SNR case.
Internet2 argues that universities should give shape to national broadband strategy, and they want $$ to do it
According to today's Chronicle of Higher Ed, the purpose of these grant funds are to provide broadband to all communities in the US. (I live in a rural area where there is no broadband available - so this idea is appealing, but I've heard it discussed for several years now with no apparent progress).
[begin quote] "Several higher-education information-technology groups are now working to influence the national broadband strategy through private conversations with agency officials and a white paper, "Unleashing Waves of Innovation: Transformative Broadband for America's Future," filed with the NTIA.
One of those groups is Internet2, a high-speed networking consortium with more than 200 universities as members. Its vice president for external relations, Gary R. Bachula, reminded The Chronicle this week that universities helped give birth to the Internet and were instrumental in its development. For those and other reasons, he said, "the right way to construct a national broadband strategy is to have higher ed lead it." [end quote]
I am very interested in how higher ed gets its ideas in the public agenda, and how higher ed finds ways to shape law and policy. Therefore, this story is interesting and one to follow.
From the Intellectual Property Watch:By Liza Porteus Viana for Intellectual Property Watch @ 12:41 am
[being quote]WASHINGTON, DC - The Obama administration will fight for the movie industry and work to aggressively enforce its intellectual property protections both at home and abroad, United States Commerce Secretary Gary Locke said here Tuesday.
Locke offered almost unabashed support for the industry, which, according to a report released Tuesday [pdf] by the Motion Picture Association of America (MPAA), created 2.5 million American jobs in 2007, paid an average production worker US$74,700 a year in salary, paid out $41.1 billion in salaries to American workers, paid $13 billion in income and sales tax and was responsible for $13.6 billion in trade surplus.[end quote]
I am really concerned about the one-sidedness of Locke's perspective. Where are the voices of the NCTE lobbyists? Do they even know what is at stake here?
Thursday, April 23, 2009
On the topic of integrity in science, the executive office is taking comments until May 13, 2009.
Sunday, April 19, 2009
What do circular welded carbon steel pipes and tube from Taiwan, hot-rolled carbon steel flat products from India, and wooden bedroom furniture from China all have in common? They were this week subject to antidumping evaluation by the US Department of Commerce, along with Vietnam frozen fish fillets (catfish) and honey from Argentina.
According to wikipedia, "dumping" can refer to any kind of predatory pricing. "However, the word is now generally used only in the context of international trade law, where dumping is defined as the act of a manufacturer in one country exporting a product to another country at a price which is either below the price it charges in its home market or is below its costs of production. The term has a negative connotation, but advocates of free markets see "dumping" as beneficial for consumers and believe that protectionism to prevent it would have net negative consequences. Advocates for workers and laborers however, believe that safeguarding businesses against predatory practices, such as dumping, help alleviate some of the harsher consequences of free trade between economies at different stages of development (see protectionism)."
Wikipedia goes on to state:
"A standard technical definition of dumping is the act of charging a lower price for a good in a foreign market than one charges for the same good in a domestic market. This is often referred to as selling at less than 'fair value.' Under the World Trade Organization (WTO) Agreement, dumping is condemned (but is not prohibited) if it causes or threatens to cause material injury to a domestic industry in the importing country."
Anyway, in the federal register, which I read somewhere is like the newspaper for the US government, they have been listing the results of several administrative reviews this week on the items aforementioned. Basically it appears that the purpose of these adminstrative evaluations is to determine tariff amounts, or assessments on producers of the iterms that could be "dumped" into the US economy.
Saturday, April 18, 2009
Well this is an interesting story that just aired on NPR. It contains some beautiful visualizations of the brain. But, I have to say that my initial reaction is that speed alone is not what makes people smart, although I'm sure smart people do think faster.
Think about it. If you have just the tiniest bit of craziness in your brain, and you think faster, that has to exponentially increase your chances of being totally crazy. It cannot be speed that makes one intelligent, because speed would just create a mass of chaos in your head.
Instead, it has to be the right kind of speed with the right kind of information. There has to be the ability to sort information, slow some of it down, and stop some of it completely.
So now I'm wondering if, like, bi-polar individuals and/or schizophrenics are people whose brains have great speed without the ability to slow or stop or erase the information we need to in order to not have hallucinations and/or paranoia. I've read lots of stuff that says artistic and/or creative people have been known to also be a little bit crazy. (I mean crazy in a loving way, not a derogatory way).
Probably, the creative crazies are just really smart people, with fast brain speeds, who don't enjoin certain kinds of information from traveling throughout their heads.
It reminds me a lot of the Internet, because the Internet lets good stuff proliferate, but it also lets crazy, bad, insane, wrong, and illegal stuff proliferate too.
Wednesday, April 1, 2009