US Department of Education Regulations take effect this summer

http://chronicle.com/article/New-Regulations-on-Campus/65135/

CCCC-IP Caucus & Committee files public comments on The Joint Strategic Plan, and with support of CCCC

Last week, we sent out the following email to various listserves and facebook for people to "sign" on in support of public comments crafted by the CCCC-IP Caucus and Committee - here's the email which supplies background information:

Dear Everyone:


We are inviting you to offer your “signature” in support of the CCCC-IP Caucus (endorsed by the CCCC-IP Committee and CCCC) with respect to the letter linked below, on or before Tuesday, midnight EST, March 23, 2010 (send your name and institutional affiliation c/o martinerife@gmail.com). Offering your support to the IP Caucus does not preclude you from additionally composing your own public comments (details below), and we encourage you to do so.


Each year since 1994 the Intellectual Property Caucus of the Conference on College Communication and Composition (CCCC-IP Caucus) meets for an hours long discussion/workshop on issues surrounding teachers and researchers of writing/composing as those issues intersect intellectual property law and policy.


This year, on Weds. March 17, the caucus crafted a letter to Victoria A. Espinel, United States Intellectual Property Enforcement Coordinator in response to a formal request for public comments (due on or before March 24 at 5pm EST-but to be submitted by us well in
advance of the deadline) on the topic of increasing IP enforcement (see link to “short explanation” below).


CCCC-IP CAUCUS LETTER
http://www.martinecourantrife.com/IP-CAUCUS/CCCC-ip_caucus-committee-ltr-3-22-2010.pdf

Short Explanation
http://www.martinecourantrife.com/IP-CAUCUS/Short-Explanation.pdf

Call for public comments:

http://edocket.access.gpo.gov/2010/2010-3539.htm

http://edocket.access.gpo.gov/2010/pdf/2010-3539.pdf

Some sample letters/public comments on somewhat related issues, for further ideas:

http://www.copyright.gov/1201/2008/answers/7_10_responses/decherney-reply-to-post-hearing-questions_1.pdf

http://www.copyright.gov/1201/2008/answers/9_21_responses/otw.pdf

http://www.copyright.gov/1201/2008/answers/9_21_responses/joint-supporters.pdf

http://www.ce.org/PDF/obamaIPcoalitionletter.pdf

http://www.copyright.gov/1201/2008/answers/7_10_responses/final-rife_response-to-questions-july-10-2009.pdf

http://www.copyright.gov/1201/2008/answers/9_21_responses/rife.pdf

http://www.martinecourantrife.com/IP-CAUCUS/sample-public-advocacy-letters/0Arife_request_FINAL_4-1-09.pdf

If you would like to offer your support of the CCCC-IP Caucus, please send your name and institutional affiliation to martinerife@gmail.com on or before Tuesday, midnight EST, March 23, 2010 and it will be included in the designated space on the CCCC-IP Caucus letter (see
letter linked above).


Thank you much for your time!


Martine & Traci


Traci Zimmerman, Associate Professor

The School of Writing, Rhetoric, and Technical Communication

James Madison University

Senior Chair; CCCC-IP Caucus


Martine Courant Rife, Professor

Writing Program, Communication Department

Lansing Community College

Junior Chair; CCCC-IP Caucus

Spain is set to go after file sharing

"The names of 200 Web sites that offer links to illegal downloads in Spain are to be given to the Spanish industry ministry as the first major move in the fight against online music piracy, it was announced in Madrid today (Oct. 19) at the presentation of a report called Parasites' Business."
http://www.billboard.biz/bbbiz/content_display/industry/e3i5c14b307d54f1cc3d00b03f51fbe853a

EFF's von Lohmann provides analysis on DMCA-DVD jukebox cases

Fred von Lohmann of EFF has provided a thoughtful analysis of the two recent DVD - DMCA-related cases that have been decided this week.

"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."

http://www.eff.org/deeplinks/2009/08/judge-rules-against-realdvd

RealNetwork loses ruling in DMCA related case

"The decision represents a major victory for the film studios, which had accused Real of violating the Digital Millennium Copyright Act (DMCA) and breach of contract in a lawsuit filed last fall."

http://news.cnet.com/8301-1023_3-10307921-93.html

EFF Launches Free, Creative Commons-licensed "Teaching Copyright" Curriculum and Website

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/

"File-sharing report that slammed Canada plagiarized"

http://www.canada.com/Business/File%20sharing%20report%20that%20slammed%20Canada%20plagiarized%20Expert/1629172/story.html

"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."

US Congressional Caucus says Canada is a "Safe-Haven for Pirates"

http://www.pcworld.com/article/165267/congress_to_monitor_canada_spain_for_copyright_violations.html

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.'"

First Person is Convicted Under DMCA for Selling Circumvention Tool

At the DMCA Rulemaking hearings, I recall, I think it was the attorney for the MPAA/RIAA, asserted that no one had ever been convicted under the DMCA for selling/trafficking circumvention tools. While it is not illegal under the DMCA to use these tools, it is illegal to sell them. An example might be a fake access key to access software or a tool to unscramble the CSS on a DVD.

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."

http://news.cnet.com/8301-1009_3-10242343-83.html

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.

Quote: "Obama Administration Lock(e)s And Loads Against Movie Piracy"

http://www.ip-watch.org/weblog/2009/04/22/obama-administration-lockes-and-loads-against-movie-piracy/

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?

JK Rowling leads fight against free books site Scribd

From guaridian.co.uk, "The publishers of bestselling authors JK Rowling, Aravind Adiga and Ken Follett have been shocked by the news that their authors' latest books are available to read for free on a US website. Internet users can not only read free copies of The Tales of Beedle the Bard, The White Tiger and World Without End at Scribd.com, but also download the text onto their computers to edit as they see fit."

http://www.guardian.co.uk/books/2009/mar/30/scribd-rowling-free-book-outrage

The Obama Hope Poster Case

NPR has conducted a series of interviews with the interested parties. I include a link to the interview with law professor Greg Lastowka.

http://www.npr.org/templates/story/story.php?storyId=101187066

To clarify his discussion - the Campbell v. Acuff-Rose Music, Inc. (1994). 510 U.S. 569, 583-585 case never actually held 2 Live Crew's use was fair use, but instead suggested the use might be fair use, and sent it back down to the lower court for a determination. To quote: "Held: 2 Live Crew's commercial parody may be a fair use within the meaning of §107. Pp. 4-25. " Notice the word "may." http://www.law.cornell.edu/supct/html/92-1292.ZS.html

The four factors are not applied as willy nilly as might be suggested in the interview.

David Nimmer (2003), a leading intellectual property scholar, conducted a study on copyright cases decided between 1994 and 2002, and found 90% of the time, if three of the four factors are found in favor of fair use, fair use is affirmed. One cannot generalize his findings though, because he did not randomly select the 60 cases he examined, nor did he analyze all reported decisions. Overall, of the 60 cases he examined, 24 upheld fair use and 36 denied it (pp. 269-277). Nimmer also analyzed percentage correspondences between each of the four factors and a favorable determination with correspondences ranging from 42% correspondence to factor two, and 57% correspondence to factor four, in the context of overall favorable findings. He states across all four factors, there is a 51% correspondence to a favorable legal outcome.Nimmer, D. (2003). “Fairest of them all” and other fairy tales of fair use. Law & Contemp. Probs., 66, 263-287.

There's other copyright and non-copyright issues as well other than the "fair use" claim. (I have not read the case but according to NPR, the potential copyright infringer is the one who filed the case for some kind of declaratory relief - always problematic because whoever filed the case has the burden -- I always think of this as if you are going to start the problem, then you will have the burden of proving yourself correct).

If I were arguing against the AP, I’d assert that the Obama photograph is not original. Per copyright law, in order for an artifact to be copyright protected, it must be an “original work of authorship fixed in any tangible medium of expression.” http://www.copyright.gov/title17/92chap1.html#102

Also note that “fixed” means fixed with authorization. http://www.copyright.gov/title17/92chap1.html#102

Then there is right to publicity issues going against AP:
http://www.publaw.com/rightpriv.html

Then of course, I’d recommend the AP lawyers read chapter 7 of this book when it is published in 2 months.
http://www.sunypress.edu/details.asp?id=61789

:)

NIJ FY 09 Electronic Crime and Digital Evidence Recovery

This is an interesting funding opportunity sponsored by the Department of Justice:

http://www07.grants.gov/search/search.do?&mode=VIEW&flag2006=false&oppId=44330

By scrolling down, a pdf of the RFP is available.

On the pdf, I think the focus of the grant is interesting, especially under the "Digital Evidence Forensic Examination Tools," subheading, where the DOJ is particularly looking for those who can do "Research and development of Macintosh-compatible computer forensic tools for State and local law enforcement agency application." In their list of "Additional Requirements," I was glad to see that they also want to see intellectual property issues addressed by whoever is successful in obtaining these grant funds.

The Student Term Paper Websites Case Continues . . .

http://blog.ericgoldman.org/archives/2008/11/student_paper_w.htm

This is a link to Eric Goldman's blog wherein he summarized the Axact v. SNR New Jersey case involving two companies, one in the US, and one in Karachi, Pakistan. This case has piqued my interest and it has a rich set of documents available for analysis. Thus, I've decided to propose an article on this case for a special issue of a journal in our field.

Today I have spent a few hours reading through the court pleadings and documents. The most interesting order was produced 12-12-08 involving google, inc.'s agreement to remove the student term paper websites associated in the court pleadings with Axact from its search engine.

The documents can all be accessed through justia.com.

Apple uses copyright to silence both fans and critics

A professor from a professional writing program in the US sent me a link to this cease and desist letter which appears to be sent by Apple. This type of activity is relevant for those teaching digital composing as I know those of us teaching technical writing often have students compose tutorials on using various applications. The fact that the copyright holder may disagree with the use of screen captures or images of its product should be integrated into the PW curriculum.

http://www.chillingeffects.org/copyright/notice.cgi?NoticeID=6222

544 term paper websites . . .

In the order I have linked below -- summarized by Justia as follows:
"ORDER granting Motion for Default Judgment in favor of defts. STUDENT NETWORK RESOURCES, INC., STUDENT NETWORK RESOURCES, LLC., AND ROSS COHEN against pltf. AXACT (PVT), LTD., in the amount of $353,373.00 and attorney fees and cost in the amount of $36,720.40; and that this case is closed." (The damages actually exceed $600,000.00.)

In the order, the court lists 544 (!!!) websites where term papers can be purchased and downloaded. (My intent is not to "facilitate access" to these websites--that's prohibited in the Court's Order -- my intent is to offer public expression on a matter of public concern to those of us teaching and interested in digital writing, regarding the fact that there could even be that many websites available to purchase term papers--this fact boggles my mind).

The order can be accessed here: http://docs.justia.com/cases/federal/district-courts/new-jersey/njdce/3:2007cv05491/208337/32/

I also have embedded a copy of the order in my most recent last blog post.

A docket of all the pleadings, including the original complaint is here:

http://news.justia.com/cases/featured/new-jersey/njdce/3:2007cv05491/208337/


This order is based on a default judgment, so I'd be surprised if it wasn't eventually challenged -- but those ole' default judgments -- this is why, I tell my students, due dates matter. You miss a due date in court proceedings and, well, if you're the attorney you better make sure your malpractice insurance is paid up.

The case is complicated - on 12-12-08 the pleadings now amount to about 37 documents or statements, including a recent order for google, inc. to remove the student term paper websites from its search engine.

Educational Use of "Flat Stanley" Threatened by Intellectual Property Claims

In what's becoming an all too common assertion of IP rights by estate holders, a teacher who's been conducting educational, funded use of Flat Stanley may have to end his efforts, which have reached across the globe.

http://www.flatstanleyproject.com/

From the George Lucas Educational Foundation Article:

"Today, the project has become a veritable global phenomenon, and because of it, thousands of children from more than forty countries have exchanged pictures, stories, and goodwill, turning a half-inch-thin storybook character into a cultural icon. Flat Stanley look-alikes have even been photographed with Clint Eastwood on Oscar night, soared aboard a space shuttle, and visited heads of state around the globe. But now, as the project enters its thirteenth year, Hubert might be forced to pull the plug on the popular project.

Citing legal challenges from the estate of Jeff Brown, the late author of the original Flat Stanley book, Hubert posted a message on the project home page that reads, 'Sadly, the Flat Stanley Project may be forced to end.' Letters of support illustrating the project's -- and the character's -- far reach have since poured in."

http://www.edutopia.org/flat-stanley-pen-pals

Scribd.com: "World's Largest Document-Sharing Community"

From a Boston.com article:

"Other downloads come from file-hosting sites that store complete copies of books. One such site, Scribd.com, is based in San Francisco. Backed by $3.7 million in funding from venture capital firm Redpoint Ventures, Scribd calls itself 'the world's largest document-sharing community,' with 17 million visitors a month. Users sign up for free accounts, which allow them to post documents on Scribd for other users to read or download. Businesses and educators use Scribd to share legitimate documents, but some account holders post copyrighted materials, including books.

Jason Bentley, Scribd's director of community development and copyright agent, said that his site allows only legal file sharing and that any files posted without permission of the copyright holder are taken down. 'We will remove the item or items within hours,' Bentley said in an interview. 'If you have more than two works taken down for copyright infringement, your account will be closed.' A federal law shields websites from copyright lawsuits if they quickly comply with removal demands from the copyright holders. Earlier this month, Bentley told the Chronicle of Higher Education that Scribd gets at least one take-down request a day, including frequent ones from Harvard University Press and the Massachusetts Institute of Technology Press."

http://www.boston.com/business/articles/2008/07/18/textbooks_free_and_illegal_online/?page=2

Students Trade "Pirated" Digital Textbooks on Regular Basis

Some of us might not be surprised that students have developed an under-the-radar trading system for textbooks, which we all know are usually outrageously priced.

http://www.boston.com/business/articles/2008/07/18/textbooks_free_and_illegal_online/

The phenomena, posted in an article on Boston.com, quotes a publishing manager from Farmington Hills, Michigan who asserts that 200-300 of his company's titles are illegally published per month.

The article goes on to state: "Ed McCoyd, director of digital policy at the Association of American Publishers in New York, said a survey in May located about 1,100 titles available illegally online, including novels and books on current events."

My perspective on this is that we've been saying for years the economic model of the traditional publication industry must change. If the publication industry won't change on their own initiative, users will effectuate that change for them. It also makes me think of the recent study I completed that was the foundation for my PhD dissertation. In that study I found that US copyright law did not have the agency many presuppose that it has at least among the digital writers I studied (who were also students). These practices by students in some sense achieve a certain kind of fairness or justice, as the high price of textbooks tries to compensate for digital piracy by others (as well as the basic affordances of digital technology which often negates the need for textbooks in the first place). If prices are going to set boundaries for who can and cannot partake of higher education in the US, "students" are going to take matters into their own hands, apparently. I cannot blame them. If a reasonable solution isn't offered by those with proprietary interests, users will force a solution through their own behaviours. The law isn't what it is, it's what people enact it to be.