November 2006

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Pirates or just small-time criminals?

29 November 2006 in Copyright, Law blogs

Peter Black, an associate lecturer in law at the Queensland University of Technology, hosts this month’s Blawg Review on his Freedom To Differ blog, which focuses on the legal regulation of the internet and the media, providing an extensive selection of great links for the IP/media lawyer in particular.

One that caught my eye was to Weatherall’s Law: IP in the land of Oz (and more) which explains why Australian copyright law is about to criminalise a good proportion of its population. Are you a criminal for using your iPod? analyses the effect of the new Oz Copyright Amendement Bill which, by s132AL makes it a strict liability offence to possess a device which is to be used for copying material protected by copyright where a copy is infringing. iPodders will be criminals because:

- copies made on iPods are currently infringing copies (because there is no exception for private copies/format shifting). The new law proposes a format-shifting defence, but on the current draft, that exception does not in fact legalise iPod use (because most iPod use involves people making – and keeping – two copies in mp3 format)

- thus, if you have an iPod, it (under the current draft) is a device which will be used for making infringing copies – hence possessing it is a criminal offence.

Now, to avoid this result, all the government has to do is (a) draft the iPod exception properly, to fit the technology, and/or (b) remove the strict liability offence.

In a world where once you digitise content you have to wave it goodbye you have to ask yourself whether almost unenforceable criminal or civil liabilities are the answer against the casual infringer who for the most part sees little or nothing wrong in what they are doing. Didn’t we learn that taping is not killing music?

The recording industry and its brethren have been crying wolf for years. At various times we have been told that the pianola was going to kill sales of sheet music, that radio was going to kill sales of records, that photocopying would kill sales of books, that the VCR would stop people going to movies …

Along the way we have been told that the use of the latest technology was immoral – everything from the photocopier to the cassette recorder to the VCR.

[Chicago University economist Stan] Liebowitz says we are in the middle of a “wonderful natural experiment” which will determine fairly quickly whether the latest high-tech copying machine causes the sort of damage the other machines didn’t. He adds that from an economist’s point of view it would be no real disaster if it did. The present recording industry would be replaced by something better able to make money in the changed environment.

This from 2003. Now I’m not a fan of the unfettered market, but you have to accept that it, rather than copyright law, appears to sort the problem out so far as the man in the street is concerned. Reasonably-priced iTunes tracks divert at least some of us some of the time from illegal music downloading. So too low-priced DVDs sell by the truckload in place of illegal movie downloads; and as broadband speeds increase the move will be to lower-than-currently-priced iTunes movies. (According to recent research only 14% of broadband households would be interested in iTunes movie downloads priced at $15 each.)

That sorted we can address commercial re-use and genuine pirates.

Adnonsense (2)

29 November 2006 in Blogging, Mammon | 1 comment

Kevin O’Keefe blogs sensibly that running Google ads is inappropriate on blogs marketing professional service or product, pointing out that at the very best you may earn only a few hundred dollars a month.

If you’re a law firm or other professional service firm charging hundreds of dollars an hour for your time, do you want to be viewed as so hard up you need to sell ads on a blog?

Implicit here and in my previous post, is that running Google ads distracts from your own marketing message; worse, it will also divert attention to competitors whose ads you will trigger.

Law blog search

27 November 2006 in Law blogs, Search

Two new (US-based) law blog search tools:

Blawg.com is a relaunch of Blawg.org with 1233 entries in 26 categories. It remains a coventional searchable catalogue with brief descriptions and links to both the blogs and their feeds.

BlawgSearch is a more advanced offering from Justia with 900 entries in 40 subject categories, 169 state law blogs and just 56 law blogs from outside the US. You can browse the categories, sort the catalogue entries by popularity, by name or by last post date and save feeds for these results. A search on the other hand searches all recent posts, returning results by relevance.

Fun with numbers

27 November 2006 in Blogging, Fun

Blog enthusiasts will be chuffed to learn that the blogosphere represents more than half of all websites. So bloggers rule! Or do they?

Netcraft, in its November 2006 web survey reports that there are now over 101 million websites (hostnames), commenting that “Blogs and small business web sites have driven the explosive growth this year, with huge increases at free blogging services at Google [ie Blogger] and Microsoft.” Meanwhile Dave Sifry of Technorati reports that in October Technorati was tracking over 57 million blogs. Though Netcraft’s comments do imply every blog counts as a website, I’m not sure we’re comparing apples with apples here.

And how representative are the bloggerati? Web usability guru Jakob Nielsen writes that:

In most online communities, 90% of users are lurkers who never contribute, 9% of users contribute a little, and 1% of users account for almost all the action.

There are about 1.1 billion Internet users, yet only [yes, only] 55 million users (5%) have weblogs according to Technorati. Worse, there are only 1.6 million postings per day; because some people post multiple times per day, only 0.1% of users post daily.

Blogs have even worse participation inequality than is evident in the 90-9-1 rule that characterizes most online communities. With blogs, the rule is more like 95-5-0.1.

So, frequent bloggers are a tiny unrepresentative minority. I can’t say that’s news to me. But by comparing apples with pears Nielsen suggests that this ratio shows greater “participation inequalty” than in other online communities. Hogwash!

Even bigots and boors have contractual rights (in good old Blighty)

24 November 2006 in Contracts

Contracts again. Apparently it’s OK in the US to lie through your teeth to induce someone to sign a contract. Here in the UK it’s just not cricket.

[Borat] is described as “a documentary-style film” that the producer “hopes to reach a young adult audience using entertaining content and formats”. Clause four states that the participant waives the right to bring any claims against the producer. At first, its subclauses include standard terms such as “damages caused by ‘acts of God’”. Then they go further, demanding that the subject agrees not to bring any claims over “false light (such as any allegedly false or misleading portrayal of the Participant)” and “fraud (such as any alleged deception or surprise about the Film or this consent agreement)”. …

Do these clauses protect Baron Cohen and his producers from legal action? According to Phil Sherrell, a media lawyer at international law firm Eversheds, the clause waiving the right to seek redress against the producers would be struck out under English law. “If this was playing out in England, the subjects would have a good claim that the nature of the project had been fraudulently misrepresented, and that the agreement was therefore void,” he says. “If you look at clause four, there are constant references to the subjects being falsely or misleadingly portrayed. The producers might think that it flags up their intentions and makes it clear that emotional distress may be caused, but none of that would matter if the producers did completely mislead the victims about what they were letting themselves in for.”

At least one US entertainment lawyer believes the forms are watertight, however. “Generally, these releases will hold up in court unless the person suing can prove that he signed the agreement under false pretences or while incapacitated,” says Aaron Moss, an entertainment lawyer for LA-based Greenberg Glusker. “Even if a participant was lied to, a court may find that the person should have read the contract and that if he didn’t, it’s essentially his own fault.”

Source: Guardian Unlimited: Film: The Borat backlash

Where culture comes from

24 November 2006 in Copyright, Free culture | 3 comments

I can’t do better than quote verbatim from Jack Schofield in the Guardian Technology Blog:

Over at Slate, Paul Collins makes the reasonable point that lots of examples of plagiarism may well come to light as more old works are digitised for Google Book Search. I should hope so! What he doesn’t point out is that previous generations of artists have not had the ludicrously restrictive views of copyright and originality that the giant mercenary copyright holders are forcing on us today.

All our most creative people have always picked up stuff from everywhere – including giants such as Shakespeare, Herman Melville, Ezra Pound and James Joyce – and made it their own. As Pablo Picasso said: “Bad artists copy. Great artists steal.”

If creative people had, for the past 2000 years, been obliged to work under the sort of insane conditions that are increasingly being applied today, we wouldn’t have very much culture at all.

I doubt if this is news to anyone, but if it is, try Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity (2004) by Stanford law professor Lawrence Lessig. You can download it free from http://www.free-culture.cc/freecontent/

Opening up a new Vista

22 November 2006 in Contracts

Computer lawyer Mark Rasch analyses Microsoft’s end user licence agreement (EULA) for the new Vista operating system and finds the boys in Redmond ready to help themselves, leaving you weeping on the floor.

The terms of the Vista EULA, like the current EULA related to the “Windows Genuine Advantage,” allows Microsoft to unilaterally decide that you have breached the terms of the agreement, and they can essentially disable the software, and possibly deny you access to critical files on your computer without benefit of proof, hearing, testimony or judicial intervention. In fact, if Microsoft is wrong, and your software is, in fact, properly licensed, you probably will be forced to buy a license to another copy of the operating system from Microsoft just to be able to get access to your files, and then you can sue Microsoft for the original license fee. Even then, you wont be able to get any damages from Microsoft, and may not even be able to get the cost of the first license back.

… So if your entire network is shut down, and access to all your files permanently wiped out, you get your couple of hundred bucks back – at most. And, as far as I can tell, there are no warranties on the license, no assurance (like the kind you would get on a toaster oven or a lamp) that the thing actually works or does any of the things advertised. What is worse, if you just want to get your money back (assuming Microsoft doesn’t want to give it to you) then you have to file a lawsuit (probably in Redmond, Washington) under the laws of Washington State, and if (and only if) you can prove your case, and your damages, can you get your money back. You aren’t entitled to, upon your belief that there was a breach of contract, simply walk up to the cash register at your local Fry’s or Best Buy and take a couple of hundred bucks from the till. This is called “self help” (or theft) and is not generally allowed as a contract remedy.

But the Microsoft Vista EULA, like many other software license agreements, gives the owner of the software (remember that’s Microsoft because you didn’t buy it, you just licensed it) the right of self-help. They have the right to unilaterally decide that you didn’t keep up your end of the contract, for example you didn’t properly register the product, you weren’t able to demonstrate that it was genuine, and so on, and therefore they have the right to shut you off or shut you down. So, what gives them the right? Apparently, the very contract that they now claim you violated.

Thank’s to John Naughton for the pointer.

No sign of the Times

21 November 2006 in Blogging, Law blogs | 2 comments

What’s happened to the TimesOnline Law Weblog which has disappeared from the radar?

At the time of its launch I wondered how the TimesOnline Law section and the Law Weblog would co-exist, commenting that, compared to news sites, blogs “allow less formal reporting and comment, free from the usual editorial strictures”.

Could it be the blog was too much hard work? too open? or do they have something up their sleeve?

Elvis is not going to produce any more recordings

7 November 2006 in Copyright, Free culture | 1 comment

In response to the proposed extension of UK copyright for recordings from 50 years to 95 years, Lawrence Lessig blogs on quantifying the value of the public domain pointing to this like-named paper by Rufus Pollock.

He also refers indirectly to an article by Eric Flint for Jim Baen’s Universe Copyright: How Long Should It Be? which concludes:

A century and a half ago [Thomas Macaulay in Parliament in 1841, when the issue of copyright was being hammered out] predicted–with perfect accuracy–exactly what would happen if the music recording industry in the late 20th century reacted to new technological developments by getting their stooges … to pass ever-more-burdensome laws forcing–or trying to force–their customers to accept their Royal Monopoly.

Read it and weep:

“I will only say this, that if the measure before us should pass, and should produce one-tenth part of the evil which it is calculated to produce, and which I fully expect it to produce, there will soon be a remedy, though of a very objectionable kind. Just as the absurd acts which prohibited the sale of game were virtually repealed by the poacher, just as many absurd revenue acts have been virtually repealed by the smuggler, so will this law be virtually repealed by piratical booksellers. At present the holder of copyright has the public feeling on his side. Those who invade copyright are regarded as knaves who take the bread out of the mouths of deserving men. Everybody is well pleased to see them restrained by the law, and compelled to refund their ill-gotten gains. No tradesman of good repute will have anything to do with such disgraceful transactions. Pass this law: and that feeling is at an end. Men very different from the present race of piratical booksellers will soon infringe this intolerable monopoly. Great masses of capital will be constantly employed in the violation of the law. Every art will be employed to evade legal pursuit; and the whole nation will be in the plot …

Remember too that, when once it ceases to be considered as wrong and discreditable to invade literary property, no person can say where the invasion will stop. The public seldom makes nice distinctions. The wholesome copyright which now exists will share in the disgrace and danger of the new copyright which you are about to create. And you will find that, in attempting to impose unreasonable restraints on the reprinting of the works of the dead, you have, to a great extent, annulled those restraints which now prevent men from pillaging and defrauding the living.”

Flint also sets out two of Macaulay’s speeches in full.

All well worth reading.

How to spend the next 2 minutes

7 November 2006 in Miscellany

  1. Visit the New Popular Edition Maps.
  2. Locate your home/office.
  3. Enter the post code.
  4. Tell your friends.

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