Category: Intellectual Property

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Froomkin’s Law Review Copyright Wiki

copyright-symbol1a.jpgOne of the things I always attempt to do with my scholarly work is to ensure that I keep the copyright in my name. This gives me the maximum freedom in how I choose to use and distribute my work in the future. Law reviews have a welter of different policies with regard to copyright that sometimes vary from year to year and from author to author. After negotiating, I have been able to secure copyright in my work with most journals, with just a few exceptions. Having knowledge about a journal’s past copyright practices can be very helpful. I know of at least one author who was told by a law review that it was against their policy to give him copyright. This was false, since the law review had given me copyright in my piece in the very same issue. Once he told them about the discrepancy, the journal editors quickly changed their position and gave him copyright.

To help bring more clarity to the confusing and contradictory world of law review copyright experiences, Michael Froomkin has developed a wiki to track the copyright policies of various law reviews. He describes the project as follows:

The purpose of this website is for legal academics and others to share our copyright experiences with law journals and other legal publishers. As academics, we have an interest in ensuring the widest dissemination of our work. Historically, Law Journals have tended to use standard-form copyright agreements that reqire a copyright assignment, and have tended to impose unreasonable restrictions on our rights to share and re-use our own work.

This is starting to change. Increasingly, law journals, are adopting reasonable policies, or at least are open to negotiation. Due to the transitory nature of student-run law journal staffs, some staffs are actually unaware of their own past practices.

On the pages linked from here, legal writers describe their copyright experiences and law journals describe their policies. The information is as good or bad as what you contribute to it.

Hat tip: Paul Caron

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IP Wars

YouTube has a good but not great take on Darth Vader’s little known brother, Chad. I wouldn’t watch all the way to the end but the first three minutes are solid and for any fan of the Star Wars films there are some good plays on the dialogue and scenes. Which leads me to a perhaps sad yet currently inevitable note. The IP Wars drone on and YouTube faces a copyright lawsuit.

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Perhaps someday a young attorney or scholar will ask an aging IP attorney “You fought in the IP Wars?” with awe because we will have unraveled how to develop, and let’s face it, make money on information yet manage to keep the information free-flowing so that expression and education can flourish. In a sense I think that conundrum is what Professor Yochai Benkler highlights in his book the Wealth of Networks. As someone wrestling with these questions, I anticipate and welcome your thoughts on the big question but here are the details of the YouTube suit to give some context of one slice of the IP Wars and perhaps offer facts with which to test the possible solutions. In addition, thanks to Bruce’s entry Don’t Write Angry for noting when arguments become more yelling matches rather than explorations of what to do to fix the problem. Now on with the current episode of IP Wars.

Apparently someone posted the video of the Reginald Denny beating during the 1992 riot in Los Angeles. According to the article, Robert Tur, the man who made the film, has sued claiming that the posting hurts his ability to license the video and that YouTube has profited from more than 1,000 viewings of the film. It seems that rather than ask YouTube to take down the clip under DMCA provisions, Mr. Tur filed suit. YouTube removed the clip after it knew about the lawsuit.

Whether Mr.Tur really makes that much money from licensing would be interesting to know. I frankly had not thought of the video until the lawsuit and would not want to pay to see it. Furthermore, it seems that historians should be allowed to show the clip in its entirety but of course that position runs smack into fair use problems. Nonetheless, consider that a Saturday Night Live clip was a hit on YouTube. It had at least 5 million downloads (assumedly from many who did not see the show which in 2004 seemed pleased with peaks of around seven million viewers) but NBC asked that it be removed. NBC does sell the clip on iTunes but it also allowed the clip to be seen on its Web site in an embedded player. I wonder whether NBC just hates great, free advertising or whether it really believes it can make more money by aggressive policing of its IP.

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Don’t Write Angry!

GroundhogWay too much writing about copyright issues is done by first, allowing your blood pressure and heart rate to rise as high as possible, and then second doing your entire article (or blog comment) in “steamed” mode. This tends to lead to not-so-insightful analysis. An example appeared in this morning’s Washington Post in Steven Pearlstein’s article, “A Sound Marketplace For Recorded Music,” which focuses (eventually) on the record labels’ lawsuit filed last month against XM Satellite Radio.

The RIAA complaint alleges that XM’s new “XM + MP3″ service, which transmits to XM’s associated “Inno” receiver, falls outside the statutory license provisions for digital music transmissions and therefore violates the Copyright Act. There’s some interesting issues there, but they’re hard to glean from Pearlstein’s article.

First, Pearlstein makes the standard swipes at “monopolists” shutting down “innovation.” This isn’t much more illuminating than the standard rhetoric from large copyright owners, that “pirates” are destroying incentives. It gets very murky when you realize that “innovation” and “piracy” are not distinct categories — you can have innovative pirates. Whether a given service is or should be legal can’t be determined based on these labels, unless you’re an extremist.

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Baseball, books, and property rights

Alan Schwarz has an interesting new article in the New York Times on the baseball statistics case. (The article cites, among others, Eugene Volokh.) A few of the more interesting snippets (this is all fair use, I tell you!):

“If anything, this case is even more impactful if the court rules for the players, because it will speak to any time you use a name in a commercial venture,” said Eugene Volokh, a professor of law at U.C.L.A. “What if you use a historical figure’s name in a historical novel? Or other games, like Trivial Pursuit? How about ‘Jeopardy!’? Would they be liable as well? That seems to be the logical consequence of this. How do you identify what is news, and other times when there’s communication of factual information?” . . .

“Fantasy leagues are an intermediate case,” said Rod Smolla, dean of the University of Richmond Law School. “This could become like the Grokster case in the music-downloading world, where the Supreme Court could be asked to draw that line between the benefits of public use and ownership of property.” Fame, Mr. Smolla said, “belongs in part to the people who earn it and the public that gives it.

There you have the basic arguments. The difficulty comes in determining the place of baseball statistics on a continuum. On one end of the continuum are items that look a lot like property, such as detailed compilations of Derek Jeter’s batting average over the past ten seasons. On the other end are basic facts known to every Tom, Dick and Harry at every sports bar in America, like the fact that Ted Williams was the last player to hit .400. A detailed list of World Series winners back to 1901 looks more property-like; “the White Sox won it last year” doesn’t. And so forth.

Complicating matters further, the statistics case will play out in a world where ideas about property itself may be somewhat in flux. An interesting piece by Kevin Kelly ran in the NYT magazine last Sunday, about the effects of digitizing intellectual property. Kelly’s article argued that:

In a regime of superabundant free copies, copies lose value. They are no longer the basis of wealth. Now relationships, links, connection and sharing are. Value has shifted away from a copy toward the many ways to recall, annotate, personalize, edit, authenticate, display, mark, transfer and engage a work. . .

Copies don’t count any more. Copies of isolated books, bound between inert covers, soon won’t mean much. Copies of their texts, however, will gain in meaning as they multiply by the millions and are flung around the world, indexed and copied again. What counts are the ways in which these common copies of a creative work can be linked, manipulated, annotated, tagged, highlighted, bookmarked, translated, enlivened by other media and sewn together into the universal library.

There’s a lot of truth to Kelly’s argument, and it applies to much more than just books. It certainly applies in the baseball statistics case, and that reality is going to be the backdrop that determines how the case affects property rights.

Thus, Eugene’s ‘Jeopardy!’ example is a good one. We can all imagine Alex Trebek and a ‘Jeopardy!’ answer of “This baseball player was the last to hit .400.” (“Question: Who is Ted Williams?”) The real emphasis is not on the definition of property per se, but rather on what are acceptables uses of the property. This is because in a world of low-marginal-cost copying, no one can prevent me from going to MLB.com and assembling lengthy lists of player statistics. And I don’t harm MLB or anyone else if I collect such copies. What MLB wants is control over how I can use such lists.

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Metabranding

On Wednesday, I had the pleasure of participating in a conference sponsored by the Harvard Negotiation Law Review that considered two case studies: the Oracle-Peoplesoft deal and the forthcoming MasterCard IPO. Vic Fleischer presented his thoughts on, among other things, the branding effect of certain aspects of the MasterCard IPO structure, and I was part of a group of IP folks who offered comments.

In my comments (which will be published later this year in the HNLR along with the other papers), I referred to the “metabranding” by the media that necessarily takes place when the audience for the branding message is outside the stream of communication in which the message is delivered. (In the MasterCard example, I posited that if MasterCard is indeed trying to contribute to its brand image through its IPO structure, it needed to rely on the media to carry that message to consumers (i.e., cardholders) who were not among the audience for the IPO’s regulatory documents in which that structure was described.) Because the media is not beholden to the branding entity, it is free, like any consumer, to accept or critique the branding message; the process is both inherent in the branding effort and necessarily works the deconstruction of the brand. More broadly, I see “metabranding” as a type of discourse about the branding effect itself, a discussion in which the participants deliberately and openly contribute to brand meaning. (Given that trademark meaning is always ultimately created by consumers, metabranding brings that discussion out in the open.)

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Blogger sued for trade libel

From the Boston Globe:

A coastal Maine blogger who criticized the state’s tourism office has been hit with a lawsuit seeking potentially more than $1 million in damages for allegedly making false statements and posting on his website, Maine Web Report, images from proposed tourism advertisements a New York agency prepared for Maine officials.

. . .

The advertising agency is suing Dutson on three counts: copyright infringement, defamation, and trade libel/injurious falsehood. It seeks statutory damages of $150,000 for each of six images it alleges were infringed upon, as well as unspecified punitive damages and legal fees.

This suit has various elements, and it’s hard to say how much of it would go forward in the absence of the (more conventional) copyright claims. This is not purely a trade libel suit based on blog content. But it contains that claim, and as such, it’s a sobering data point. In particular, if these kinds of suits (trade libel over blog content) become a broader trend, that will have serious effects on blogs. After all, a good deal of the blogosphere is dedicated to criticism of some industry or other. There is the classic “I had a bad experience with X airline” post; there are series of posts criticizing a business or industry; and so on.

Trade libel requires (as far as I’m aware, in every jurisdiction – though I’m not an expert) actual falsehood, so that is a potential defense. But even a successful defense can be costly and time-consuming and stressful, and I suspect that few bloggers would want to risk a lawsuit. Thus, the real effect of such lawsuits is the chilling effect — that bloggers will become more hesitant in their criticisms. This may be a good thing in some cases — Heaven knows thablogs often generate more heat than light — but is certainly not an unalloyed good.

In the mean time, let me say that my New York trip has been great. Loved the food. Even the subways smelled nice. Please don’t sue me, Mayor Bloomberg. Or the blog. I was just kidding when I complained about that stale bagel. And I deleted that post, anyway. What post? I didn’t see any post about a stale bagel. Did you, guys? Didn’t think so. Carry on. Nothing to see here.

But Certainly Everyone Has $200 to Donate?

Michelle Cottle has a delicious critique of the NYT Thursday Styles Section, aptly titled The Gray Lady Wears Prada. Cottle juxtaposes the “high-minded liberal sensibility” that the Times’s bobo readers aspire to cultivate with the breathless high-end consumerism of Thursday Styles’ Hermès scarves and Jimmy Choo mules. The most revealing quote comes from Times editor Bertram “Trip” Field III, who insists that “we’re [not] trying to serve only those readers who can afford a $10,000 watch.” When Cottle examines the egalitarian timepieces Trip’s claimed to have covered, it turns out the cheapest one is an $890 Prada.

I’m not going to tsk-tsk consumerism here—been there, done that. But I do think Cottle’s insightful piece discloses another aspect of elite journalism—a class bias so pervasive that it’s not even noticed. I think such biases also work their way into scholarship. For example, the bien-pensant consensus on campaign finance reform has long held that we want races funded by a large number of “small donors”—presumably those who donate less than $500. But really, with median family income around $65,000 and average household savings near zero, how many of these small donations are going to come from those at the bottom half of the income scale?

Thankfully, Bruce Ackerman and Ian Ayres’s “Patriot Dollars” proposal addresses this issue by proposing donation vouchers of equal size for all voters. But I’m wondering where else implicit class biases inform a scholarly consensus…any ideas?

Single-Payer Music Care?

Les bon temps roulez! It appears the French legislature has picked up on the conversation started by one of Christine Hurt’s posts here a few weeks ago on the iPod, and wants to do something about Apple’s iTunes lockout of rival music sellers and players. The IP blogosphere is abuzz over the move, which directly challenges Apple’s aggressive efforts to leverage dominance in the portable-player market into a monopoly over digital music retailing.

Libertarians are likely to applaud moves like this, as this Cato Institute Report demonstrates. But I want to push the dialogue in an even more market-oriented direction. Since we’re thinking big here, why don’t consumers take some self-help measures? The recording industry is extraordinarily concentrated, provoking antitrust investigations left and right. So why don’t consumers form buyers’ cooperatives? If the “big four” own 90% of the music, why don’t consumers form four or so buyers’ groups that will negotiate access to music? Each would manage a library with about one-fourth of recordings. That seems to be the model behind Europe’s efforts to hold down health care costs—have one or a few big players form a monopsony (or oligopsony?), and bargain down the price.

Now I’m not saying that’s always the best solution for health care—as Cutler, DiMasi, and others have noted, a lot of innovation is funded by the fragmented buying pool in the U.S. system. But while I care a lot about innovation in health care, I’m a bit agnostic about innovation in music. Can we reliably say that the whole lot of music composed and performed after 1980 is worth more than J.S. Bach’s oeuvre? I don’t know. So I don’t care if “single-payer music care” ends up reducing revenues to the culture industries. Admittedly, in the end, I think it would actually help those industries, as William Fisher so skillfully documents in his Promises to Keep. But that’s another post…

Three Cheers for Categorizers!

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Dan mentioned an indefatigable blogger who’s now taxonomizing over 600 law-related blawgs. I’ve heard a lot of critics of bloggers complain about “navel-gazing” in this field. But this type of work is exceedingly valuable, as I try to demonstrate in a recent piece on “information overload externalities.”

In my view, categorizers are a uniquely beneficial “genus” in the information ecosystem, and they deserve special solicitude from copyright law. Categorizers should be able to provide small samples or clips from whatever works they organize or index, without begging for licenses from the copyrightholders who own the sampled work.

Unfortunately, categorizers have been getting some rough treatment by courts lately. For example, Google recently lost a battle against “erotic image purveyor” Perfect 10 because the low resolution images on its “image search” might reduce Perfect 10’s sales to the “cell phone viewing” market. The Author’s Guild (which appears neither to represent all authors nor to be a guild) is suing to stop Google’s digital book indexing project—even though Google permits any aggrieved copyright owner to opt out! They believe Google should have to work out, individually, permissions for each of the millions of books they want to index.

Imagine if uber-taxonomizer 3L Epiphany had to ask permission to quote or cite to any of the blawgs he compiled. Are we really going to let a few cantankerous holdouts veto an effort to archive and index the world’s expression? I hope not, for a couple reasons…

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