Delaware Court on case of first impression holds photographs published on web in Germany not "published" in US

From Loeb & Loeb LLP: "District court, addressing what it determined to be an issue of first impression, holds that posting a work created outside the U.S. on a website outside the U.S. by a foreign national does not constitute publishing the work simultaneously in the U.S., and therefore plaintiff did not need to register his photographs before filing suit for infringement in a U.S. court."

http://www.loeb.com/news/CaseList.aspx?Type=ip

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

Communications Decency Act Issues Raised in Recent Facebook Suit

Facebook is being sued for content it has posted according to an article in PC Mag.com.

http://www.pcmag.com/article2/0,2817,2353659,00.asp

A comprehensive discussion of issues around the Communications Decency Act of 1996, Section 230, is located here:

http://www.cdt.org/publications/policyposts/2008/4

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:

http://www.citmedialaw.org/section-230

And, another excellent discussion on David Johnson's blog

http://www.digitalmedialawyerblog.com/2009/09/lessons_from_batzel_v_smith_no.html

High court approves injunction via Twitter

In the guardian.co.uk http://www.guardian.co.uk/technology/2009/oct/01/twitter-injunction

Additional DMCA Rulemaking Questions Received

I have, along with other DMCA rulemaking-hearing participants, received a second question set from the U.S. Copyright Office. The questions are premised by: "For purposes of the question below, please assume that the Register has decided to recommend an exemption to the prohibition for proposed classes 4A through 4H, 11A and 11B, or some portion thereof, relating to motion pictures on CSS-protected DVDs" and ask:

“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.

Study explores "expert" legal writing

Shelley M. Kierstead of Osgoode Hall Law School and Erika Abner of the Postgraduate Medical Education Office have just published a paper on SSRN explaining a study they completed: "A Preliminary Exploration of the Elements of Expert Performance in Legal Writing"

http://ssrn.com/abstract=1415369

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.

Open Video Conference Looks at the Future of Online Video--

The Intellectual Property Watch blog has a great overview of a recent Open Video Conference that took place last week. Video presentations from the conference will be posted on the website soon.

http://openvideoconference.org/

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--
http://www.ip-watch.org/weblog/2009/06/23/now-video-wants-to-be-free-and-open-too-ip-policy-considerations/

U.S. Copyright Office Submits Questions to DMCA Rulemaking Participants

The hearings take place every three years in order that the U.S. Copyright Office might consider creating exemptions to the anti-circumvention provisions of Section 1201, Title 17 of the Copyright Act - known as the DMCA. Since I participated in the May 2009 hearings, I received two sets of questions, one for each panel I served on. (Answers due July 10, 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)

Introduction:

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?

Announcing New Journal: Rhetoric, Professional Communication, and Globalization

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 (bathatch@nmsu.edu) or Kirk St. Amant (kirk.stamant@gmail.com).

Computers and Composition Special Issue

Deadline for manuscripts: September 15, 2009 (response by November 15)
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:

https://www.msu.edu/~courantm/CFP_CC_copyright.pdf

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

Steve Westbrook
California State University, Fullerton

Dànielle Nicole DeVoss
Michigan State University

John Logie
University of Minnesota

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."

Study of Blogger's Ethical Beliefs and Practices Published in New Media & Society

A study of 1224 bloggers' ethical beliefs and practices was just published in New Media & Society. This incredibly insightful and well written piece clearly lays out the methodology and findings. The study found that "personal bloggers valued attribution most, followed by minimizing harm, truth-telling and accountability respectively. Non-personal bloggers valued both attribution and truth-telling most, followed by minimizing harm, then accountability. For both groups, attribution was most valued, and accountability least valued." (p. 586). Attribution mattered most for the bloggers. (Supporting my study findings as well). Based on their research, the authors crafted ethical guidelines for bloggers, based on what the 1224 bloggers thought was important. In their piece, they also site Clancy Ratliff's "Attracting Readers: Sex and Audience in the Blogosphere."

http://www.barnard.edu/sfonline/blogs/ratliff_01.htm

Posted on WIDE's Blog

I posted a summary of the DMCA testimony on the WIDE blog; the title is "DMCA Testimony."

I will be creating an annotated archive and resource this summer.

http://www.wide.msu.edu/content/blog.php?postid=75

The brunt of my DMCA testimony

Here's a high quality version of my testimony on May 6 before the copyright office supporting the educational exemption to 1201.

http://www.screencast.com/users/hotdog2/folders/DMCA%20Hearings%20May%206/media/0c25fd1a-14ed-408a-9af4-76138e5bbfe8

Marybeth Peters discusses copyright and the library of congress

http://www.c-span.org/Watch/Media/2008/08/02/HP/A/9571/Marybeth+Peters+Library+of+Congress+US+Register+of+Copyrights.aspx

Internet2 argues that universities should give shape to national broadband strategy, and they want $$ to do it

In an interesting turn of events, higher ed is making a play for some of the 4.7$ billion that will be paid out by the National Telecommunications and Information Administration (NTIA). This agency is under the Commerce Department, and the money is from a new grant program.

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.

http://chronicle.com/free/2009/04/16710n.htm?utm_source=at&utm_medium=en

I am going to DC . . .

http://beyondwordsblog.com/2009/04/23/professional-writing-professor-to-testify-about-copyright/

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

Library Organizations To File Amicus Brief in Google Book Search Settlement

"The American Library Association (ALA), the Association of Research Libraries (ARL), and the Association of College and Research Libraries (ACRL) said this week they will file an amicus brief pertaining to the pending Google Book Search settlement. ARL associate executive director Prue Adler told the LJ Academic Newswire the brief would be written by attorney Jonathan Band, author of the Guide for the Perplexed: Libraries and the Google Library Project Settlement, and would amplify for the court concerns library leaders voiced at recent meeting in Washington, DC."

The full story: http://www.libraryjournal.com/article/CA6640461.html