June 11th, 2009

Napster and the "The more things change" rule

Posted by Denise Howell @ 9:05 am

Categories: Copyright, DMCA, DRM, Lawsuits, MGM v. Grokster, P2P, Video

Tags: Entertainment, Napster Inc., DRM, DMCA, Business Models, Denise Howell

Drew Wilson at Zero Paid points out that Napster celebrates its 10th birthday this month. The Globe and Mail takes a deeper look in its Download Decade series. In the last decade, iTunes, Amazon, and various subscription music services have demonstrated there’s a vast audience more than willing to pay for entertainment downloads given the right mix of value and convenience, though pricing and freedom from DRM remain sticking points. At the same time, lawsuits against individual alleged file sharers march forward, and the entertainment industry has not relented in its pursuit of what it perceives as Napster’s successors (e.g., Pirate Bay, Real DVD). Which prompts me to wonder: in the ten years since Napster sent the entertainment industry its wake-up call, has anything fundamentally changed?
[Update:] Or as Bob Lefsetz puts it: “So I just don’t understand this ten year period. What did the rights holders prove?”

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June 2nd, 2009

Microsoft's Bing playing fast and loose with fair use?

Posted by Denise Howell @ 8:53 am

Categories: Copyright, Search, Video

Tags: Microsoft Corp., Video Search, Image Search, Beet.TV, Kelly v. Arriba Soft, Perfect 10 v. Google, Fair Use, Litigation, Andy Plesser, Fred von Lohmann

Beet.TV’s Andy Plesser asks: is Microsoft’s Bing search playing fast and loose with fair use? Specifically, Andy points out that Bing displays “live,” or perhaps more accurately “dynamic,” thumbnails in its video search results, and users can “watch the entire video an extended excerpt [see below] as a thumbnail, with sound.” Andy notes Bing “appears to pull a media RSS feed which is stripped of advertising overlays,” but “does provide a link to the original source.” “This is the broadest implementation of ‘universal video search’ by a major company we have seen,” he says.

Since 2002 it has been pretty well accepted in the U.S. that search engines can properly display thumbnails of images in search results under the fair use doctrine. Crucial to that result though is the fact search result thumbnails do not “supplant the need for the original” or harm the market or value of the images as used on the original site. (See the Ninth Circuit’s Kelly v. Arriba Soft decision.) In fact, thumbnail images in search results were found to help the market or value of the images by

guid[ing] users to [the site] rather than away from it. Even if users were more interested in the image itself rather than the information on the page, they would still have to go to [the] site to see the full-sized image. (Kelly)

Bing presents an interesting twist on this, and the question is: is displaying a thumbnail rather than full-sized video enough to trigger fair use? Here, I think the argument is stronger than in Kelly that the need for the original is supplanted. Full length Lengthy [see below] thumbnail videos with sound strike me as more likely to serve as a complete substitute for the original than a thumbnail image, and if I’m right, fewer users would be guided to the original site by the search engine (in fact, they’d be discouraged from clicking through). The thumbnails also impair the value of the original by removing the originally included ads.

On the other hand, Bing’s video search could be fair use if the videos are embedded and/or inline linked rather than copied. (That doesn’t sound like what’s going on, particularly given the ad removal, but I need more info.)

I’d be curious to hear more from others, including Fred von Lohmann at EFF, about Bing’s video search and fair use.

[Update, 2:30 p.m.] As TechCrunch pointed out yesterday, Bing puts users two clicks away from a whole lot of video porn, again with the thumbnail/full video/full sound scenario (though I didn’t do an extensive survey, the couple of thumbnails I clicked through required you to click further to “play the [full size — no tittering now] video at the original site” rather than staying on Bing). Adult entertainment producers can be among the most strident objectors to search engines hurdling their paywalls and providing access to their otherwise for-pay content, as we learned a few years back in the Perfect 10 v. Google litigation. Perfect 10 involved still images only, and Google won, as Jason Schultz describes here. Bing’s porn thumbnails are significantly more….enhanced. ‘Scuse me while I reinstate safe search before my kid wanders in.

[Update, 3:36 p.m.] As noted in the comments here and in an update to Andy Plesser’s original post, it’s not yet clear exactly how much of each video gets played in the thumbnails, and whether this varies from video to video or source to source. From what I’ve seen of the thumbnails they play enough of the original to prompt obvious fair use concerns.

May 30th, 2009

Video helps to quantify "fair"

Posted by Denise Howell @ 8:46 am

Categories: Copyright, Mashups, User generated content, Video

Tags: Best Practices, American University, Center for Social Media, Program on Information Justice and Intellectual Property, Mike Madison, Denise Howell

Did you know that American University has a Center for Social Media? (Part of its School of Communications.) They have a great collection of fair use resources, including “Remix Culture: Fair Use Is Your Friend,” a video that goes along with the Code of Best Practices in Fair Use for Online Video, released last July by the Center for Social Media and AU’s Program on Information Justice and Intellectual Property.

As Professor Mike Madison puts it:

Among other things, the best practices approach is one way of rendering concrete an emerging sense that fair use in copyright law is neither as radically indeterminate nor as toothless in operation as the conventional wisdom might suggest….

The best practices approach is not a panacea, and it is far from costless. Producing these statements and working with gatekeepers to acknowledge them is time-consuming, challenging work. And there is no assurance that if tested in court, a copyright defendant’s reliance on a Best Practices approach or publication would be persuasive to a judge or jury. The hope, however, is that the more robust the set of Best Practices followed by creators in these fields, the less likely it is that litigation will ensue.

Positive steps toward building law that works.

June 16th, 2008

Overly restrictive A.P. quoting guidelines risk winning battles at the war's expense

Posted by Denise Howell @ 9:44 am

Categories: Blogging, Copyright, Licenses, Mashups, Video

Tags: A.P., Blogging, Saul Hansell, Media Bloggers Association, Denise Howell

Saul Hansell reports today that the Associated Press "will, for the first time, attempt to define clear standards as to how much of its articles and broadcasts bloggers and Web sites can excerpt without infringing on The A.P.’s copyright."

The problem with “clear standards” is that as Tim Wu (quoted in the article) correctly points out, the legal standard is unclear, and subject to interpretation on a case by case basis. There are instances when reproducing the entire work (or large portions thereof — “Fisking” we used to call it, seems like eons ago) with sufficient commentary is fair use. The A.P.’s vague statement that it wants to police what appears to be reproduction for reproduction’s sake as opposed to commentary, thus is a fair representation of what it’s entitled to do by law; anything more specific might not hold up.

Given this, it’ll be interesting to see what the A.P. cobbles together with the Media Bloggers Association, which of course does not act for and can’t bind the whole blogosphere and Web. If, as the statements to Hansell suggest, it’s as restrictive as purporting to make brief direct quotations against A.P. policy, the A.P. will either have to backtrack or try to get judicial buy-in on a policy that in all likelihood would be deemed overbroad.

(Image by SideLong, CC Attribution-2.0)

Related: Mike Arrington, Here’s Our New Policy On A.P. stories: They’re Banned, and all stories and posts linked from there; Techmeme re same.

March 31st, 2008

Sparks fly over copyright at Tech Policy Summit

Posted by Denise Howell @ 12:09 am

Categories: Conferences, Copyright, DMCA, Lawsuits, Licenses, MGM v. Grokster, P2P, Patent, User generated content, Video

Tags: Tech Policy Summit, TiVo Inc., EFF, Copyright Alliance, UCLA, Fred von Lohmann, Matt Zinn, Doug Lichtman, Patrick Ross, Copyright

The group of copyright scholars and advocates gathered Wednesday at the Tech Policy Summit in Hollywood demonstrated that while copyright must function in a converged world, opinions on how it should function are as divergent as ever. The panel (pictured from left to right) consisted of Patrick Ross (Executive Director, Copyright Alliance), Fred von Lohmann (Senior Staff Attorney, EFF), Matt Zinn (VP and general counsel, TiVo), and moderator Doug Lichtman of UCLA Law School.

I. Copyright Policy

The primary bone of contention was the extent to which copyright law does and should leave room for permissionless innovation. Matt Zinn and Fred von Lohmann discussed the benefits of such a system:

Zinn: Fortunately, the Constitution got it right. Copyrights are not absolute rights. TiVo did not have to go to the rightsholders for permission [to build a product that allows flexible use of lawfully acquired copyrighted content]. If they’d had to, there’d be no DVR. With no DVR, there’d be no VOD.

Von Lohmann: In recent years, the law has begun to appreciate the value of organically derived genius, the wisdom of the crowds. The copyright system is doing a surprisingly good joyb of creating rights that leave room for the kind of diverse marketplace [Matt] was just talking about. iTunes, TiVo, iPods, Betamax: all devices that depend or depended on copyrighted works for a large portion of their value, and that’s a good thing. Copyright law in its current form seems to trust markets quite a bit. This is not the death of copyright as we know it. In the room between the overreaching desire of rightsholders for control and what the law provides, innovation blooms.

Patrick Ross, while conceding von Lohmann’s point that "there’s no moral, ethical, or legal right to a business model," sought to reframe the issue, saying it’s not about business models, it’s about copyright:

Asking and getting permission is a key part of the system. . . . Where you get into a problematic situation is where the rights are being so abused and no legal authority is controlling it.

Picking up on Ross’ defense of a permission-based system, Doug Lichtman challenged Matt Zinn on his assertion that TiVo could not have gotten permission had it asked first. He posited that TiVo would have been a value proposition for the television networks, and they would have been willing to partner with TiVo and give back a share of the enhanced value they would realize by meeting the audience demand for such a service. Zinn disagreed:

In Hollywood, it’s not just about the money. It’s about all the money.

Von Lohmann concurred:

Disruptive innovation does not get blessed in incumbent industries. When the music labels tried it with MusicNet, PressPlay, and all the other companies that are now smoking holes in the industry, it didn’t work.

He went on to point out that one reason incumbent industries shun innovation is their reluctance to cannibalize their other businesses: here, sales of videocasettes, DVDs, etc.

At about this point in the discussion, Jay Williams of the MPAA stepped up from the audience to suggest Matt Zinn was being philosophically inconsistent about intellectual property, since TiVo recently won a patent battle with Echostar/Dish Network. "What are the value of those patents? Aren’t they barriers to innovation?" Read the rest of this entry »

October 15th, 2007

Are satellite shows and podcasts accessiblity-equivalent?

Posted by Denise Howell @ 3:18 pm

Categories: Accessibility, Lawsuits, Podcasting, Video

Tags: Satellite, Robert Scoble, Scott Bourne, the head lemur, Podcasts, Videocasts, Accessibility, Denise Howell

Robert Scoble is wondering whether accessibility laws may cripple videocasts (and presumably podcasts). Scott Bourne had an interesting (if inconclusive) post on the subject last year, and the head lemur posits that the touchstone (in the context of the Target case presently in the news) may be whether or not you’re doing e-commerce. I’m out of my depth with accessibility law, but the subject has certainly come up and intrigued us for the last two years in the legal session at the Podcast and New Media Expo.

My thinking, uninformed as it is, is that Web accessibility and video/podcast accessibility are different animals. Since podcasts aren’t going out over any FCC-regulated spectrum, perhaps their accessibility requirements (if any) should be similar to those applicable to satellite broadcasts. If you’re on top of those requirements or have further thoughts (e.g., perhaps satellite isn’t the proper analogy at all), please chime in in the comments. And while we’re at it:

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(Image by laRuth, CC Attribution-2.0)

October 8th, 2007

In the trenches with Live Web law at EFF's Bootcamp

Posted by Denise Howell @ 10:56 am

Categories: Blogging, Collaboration, Compliance, Copyright, DMCA, Defamation, Free speech, Lawsuits, Licenses, Live Web, MGM v. Grokster, Mashups, Podcasting, Social networking, Social news, Syndication, User generated content, Video

Tags: Electronic Frontier Foundation, Web 2.0, Fred von Lohmann, Bootcamp, Fenwick & West, Denise Howell

If you’re doing business on the Live Web, get thee this Wednesday, October 10, to EFF’s Bootcamp, “a one-day session for Web 2.0 workers on user generated content:”

Does your interactive company have to contend with the maze of laws dealing with user privacy and publishing user content? Want to do the right thing by the online community that gives your business value, and still fulfill your legal obligations?

EFF is hosting a one-day session for Web 2.0 workers who handle issues arising from users and user-generated content. From DMCA to CDA to ECPA, the law surrounding internet content can be confusing, especially for the folks who have to decide on the fly whether to let something stay up or take it down, or whether to give their customer’s name to the FBI agent on the phone. Let us help.

This is an incredible and cheap (between $100 - $200) opportunity to learn how to spot and avoid trouble from the best of the best in this field: EFF’s staff attorneys. (If the registration fee is still too rich for your blood, then apply for one of the 20 available Google-sponsored scholarships, explained here.)

I am hard pressed to conceive of a Web-based communication platform, community, or business model that doesn’t need this kind of overview. For nine examples of why, check out Rafe Needleman’s 9 fun ways Web 2.0 startups can commit legal suicide, gleaned from an interview with Fred von Lohmann in conjunction with the upcoming event:

Von Lohmann’s two big takeaways: First, be sure you know when you’re stepping into a danger zone. Music? Financial data? Private information? Kids? Don’t let yourself think you’re more clever than another industry’s legal machine. Second, realize that no matter how hard you try to stay clean, ‘You’re probably doing something wrong already. For the most part it doesn’t matter, but something just might.’

For yet more examples of the legal minefields Web businesses must daily navigate, you might want to eavesdrop on Fred von Lohmann’s IP and Innovation Policy class at Stanford by way of its blog. Bring your Aleve; plenty of brain teasers there.

Bootcamp starts at 9:00 a.m. Wednesday at Fenwick & West in Mountain View. (Brilliant move by the firm, hosting this. I’m sure plenty of Fenwick’s existing clients are thrilled for the opportunity, and once EFF’s staff has had the chance to terrify educate all the non-client attendees, the stampede to sign the firm’s retainer letter will leave some wondering how they wound up in Pamplona.)

(Image by A. www.viajar24h.com, CC Attribution-2.0)

September 17th, 2007

IP and the user generated economy at TechCrunch40

Posted by Denise Howell @ 5:07 pm

Categories: Conferences, Copyright, DMCA, Licenses, Live Web, MGM v. Grokster, Mashups, User generated content, Video

Tags: TechCrunch40, Creative Commons, IP, Copyright, Video, User Generated Content, Music, Denise Howell

Some very competitively interesting Web companies are being launched and/or featured today and tomorrow at TechCrunch40. In the wrap-up portion of the Community Collaboration session, former Napster executive Don Dodge was quick to note that many of these companies depend on user submissions and uploads to populate their services, and they need to be managing the IP considerations on the front end.

StoryBlender (a project from the creators of Cyworld) provides an online editing tool for collaborative video production. When pressed on the related IP issues, the presenters said they have learned from YouTube’s experiences and will have rigid policies (and presumably technology) in place to block uploading of copyrighted, unlicensed works.

It will be interesting to see whether AOL’s BlueString, which launched today at the conference and offers storage and sharing for photos, videos, and music, will take a similar approach. Its terms unsurprisingly put the copyright compliance obligations on the individual users. It invites users to upload their photos, their videos, and “their music” — though of course, as the ’80’s mix cd graphic now on the homepage suggests, BlueString users are unlikely to have created “their music” themselves, thus putting the service in the likely and unenviable line of fire of the major record labels.

Probably the biggest crowd favorite today was musicshake, a company that aims to change the assumption that a user’s “own music” was not created (at least in part) by the user her/himself. It’s a slick online music creation site, like GarageBand moved to the Web and made very user-friendly. The clips forming the foundation of musicshake creations are all licensed, and the company plans to let users sell their creations, keeping some of the proceeds themselves and kicking some to those providing the clips on which the finished work is built. It would be nice to see musicshake include Creative Commons licensing, but there was no mention of this today.

Two companies who either are or are contemplating offering Creative Commons licensing are docstoc and AOL’s BlueString (mentioned above). docstoc, which blends document storage with sharing and social networking, bakes in Creative Commons licensing à la Flickr, and BlueString’s terms advise users that they “may” have the option to apply a Creative Commons license to what they put on the site.

August 13th, 2007

Lawgarithms Links for 8/13/07

Posted by Denise Howell @ 11:24 am

Categories: Attention, Copyright, Identity, Lawsuits, Licenses, Links, Live Web, Social networking, Trademark, Video, Virtual worlds

Tags: Google Inc., BitTorrent, Google Reader, Blog, Lawgarithms, Denise Howell

Remember that between entries here you can keep up with the Live Web (and other) issues I’m spotting by subscribing to my Google Reader Starred Items. Among the links now playing:

Two-word license agreement: “F— YOU!”, from Boing Boing by Cory Doctorow

Fair Use for YouTube & MySpace Users, from Slashdot by Zonk

What bloggers should know about copyright protection for their writing and photographs, from IP Law Daily by mamarant

Trademarks FAQ, from Blawg IT-Internet Patent, Trademark and Copyright Issues with Attorney Brett Trout by Brett Trout

Catching Up: Derivative Works and Fair Use, from IPTAblog by Andrew Raff

Avatar Rights, from Wonderland by Alice Taylor

Proposal to Make Suing Anonymous Avatars Harder, from Virtually Blind - Virtual Law | Legal Issues That Impact Virtual Worlds by Benjamin Duranske

Lawsuit Filed Against Second Life Avatar, from Top Tech News by Phil Davis

Prophesies, from Doc Searls Weblog by Doc Searls

A Guide to Google’s APIs, from Mashable! by Adam Ostrow

It All Comes Together: The getting good with BitTorrent roundup, from Lifehacker by Adam Pash

Most Popular DVDrips on BitTorrent (wk31), from TorrentFreak by Ernesto

Stop! Don’t click “I Agree” before you read the Terms of Service, from Yap 3.0 by Robin

YouTube, Google Street View: the copyright, trademark, AND privacy trolls are coming!!, from ZDNet Blogs by Russell Shaw

Getting data OUT of Facebook, from ZDNet Blogs by Dennis Howlett

Electronic Filing Of Copyright Applications Has Arrived (at least for beta testers), from Clock Tower Law Group’s shared items in Google Reader by Aaron Silverstein

Internet Vote-Swapping Legal, Says 9th Circuit, from Threat Level - Wired Blogs by Sarah Lai Stirland

Facebook, Identity, and OpenID, from Ministry of Intrigue by daniel@andrlik.org (Daniel Andrlik)

Let’s kill all the lawyers: web-based negotiation platform seeks to revolutionize the creation of contracts, from Online Guide to Mediation by Diane Levin

Taking Intangible Electronic Files is Criminal Fraud–NM v. Kirby, from Technology & Marketing Law Blog by Eric Goldman

Video Site Veoh Sues To Stop Universal, from Top Tech News by Richard Koman

Surfing your clickstream, from ZDNet Blogs by Ed Gottsman

Hyperlinking & the law: IMPACT guide to the essentials, from IMPACT® by Alex (note the focus of this piece is UK/EU)

August 2nd, 2007

Social networks: what goes out, what goes in

Posted by Denise Howell @ 4:28 pm

Categories: Attention, Collaboration, Conferences, Copyright, Identity, Live Web, Podcasting, Social networking, User generated content, Video

Tags: Social Networking, Attention, Intellectual Property, Identity, Denise Howell

“Social Networking 3.0″ was on the agenda this afternoon at the AlwaysOn Stanford Summit. This one was a “must watch” for me, as will be Dan Farber’s later today on “The Democratization of Media.” You can follow along with the conference’s live Webcast here.

Moderator Charlene Li, senior analyst for Forrester Research, was joined by Travis Katz, senior vice president and general manager of MySpace International; Dustin Moskovitz, co-founder of Facebook; Rich Rosenblatt, CEO of Demand Media and former MySpace executive; Gina Bianchini, CEO of Ning; and Karl Jacob, CEO of Wallop. Dan blogged the panel on Between the Lines, and, as he says, most of the discussion focused the future of social networks. I was most interested in the comments concerning social networks and identity, attention, and intellectual property.

On the identity front, Charlene Li stated the truism that maintaining identities across different social networks is “a pain,” and wondered when the social networks we see today will become more open. Facebook’s Dustin Moskovitz recognized that portable identities are necessary, but didn’t go into particulars of how Facebook is or will be addressing this. Rich Rosenblatt said they talk internally at Demand Media about “the portable profile,” and says Demand Media is working on letting users log in with a single profile then select from a mix of options as to where they want to be. (My impression was he was not talking about navigating out of the Demand Media environment.) MySpace’s Travis Katz is interested by the notion of OpenID and a single, portable identity, but thinks it’s “complicated” to make it happen. And Gina Bianchini challenged the notion that social networking users want a single, inflexible identity to follow them around: “Your wakeboarding social network is fundamentally different from your independent journalist one. People in the real world have different sides of themselves that they show to different groups, different people, different communities.” She makes a good point, and I think the digital identity community is on top of that nuance. Though Tantek Çelik Twittered me to ask about their plans, if any, for using microformats as an open portability standard, sadly I didn’t get the nod from the microphone handler. [Update:] See Fred Oliveira: “A good start: A few social networks already have microformatted data on user profiles (Last.FM, Dopplr, Twitter and Cork’d), meaning any other network could easily consume this data when you sign-up, saving you a load of trouble - which is exactly what Dopplr (being smart as it is) does. Now if other networks would tag along, that would be superb.”

Travis Katz, Dustin Moskovitz, Rich Rosenblatt, Gina Bianchini, Karl Jacob

On the attention front, in response to the question “Where’s the money going to come from?” the panelists answered with nearly a single voice: targeted advertising. But transactions based on user desires and intentions are on the radar as well:

Travis Katz: the advertising model on social networks is going to be here a long time. Other models will probably emerge too. MySpace is looking at ecommerce models. You always feel better buying from a trusted source. When you talk about transactions between individuals, there’s a commerce opportunity there too.

Karl Jacob: Wallop is all transaction, no advertising. We believe there’s a world down the road where you buy the things you need to dress up your profile and the applications you want to use. Akin to the ringtone market.

Gina Bianchini: If I had to choose between the ringtone market and targeted advertising, I’d choose targeted advertising. There’s a huge opportunity to bring what is happening with AdWords into social networks. If you take a monetization model that’s working today and generating significant amounts of money, and apply it to a market that is only going to get bigger and more sophisticated as far as targeted advertising, it gets very interesting.

Finally, on the subject of intellectual property, when asked what was missing from the social networking ecosystem and what he would invest in if given the opportunity, Rich Rosenblatt commented on the need for what I would call a “third estate” of media: outside the copyright and use limitations of the products of the big studios, labels, and publishing houses, and yet a step above one person’s photos, films, etc. made primarily for personal use. A class of media produced and designed for Web distribution. Gina Bianchini challenged the notion that “amateur” media can’t comprise this third estate:

Rich Rosenblatt: We’d like to see more content actually made for the Internet. There are two layers of content. Studio generated (lots of trouble and fighting there), and user generated but not usable (one guy’s photos of himself). We’d like to see content that more than a few people want to see.

Gina Bianchini: I would argue that that’s happening today. On YouTube some of that gets lost in the crowd, but put it in a community of really interested people, and it’s very powerful.

Rich Rosenblatt, to Gina: But if you could buy wakeboarding content for your wakeboarding social network, wouldn’t that be great?

Gina Bianchini: From my perspective, one of the benefits of social networks is you and your friends can watch your own stuff. Another benefit is the good stuff rises to the top. I would rather have the material be truly user generated.

Karl Wallop: the good content and the good applications will all come from the current and up and coming generations of users.

I have long thought Creative Commons moves us significantly closer to this third estate media ecosystem, but doesn’t quite take us all the way there. John Palfrey points this out in his post today on blog scraping and the ongoing licensing/compensation gap.

alwayson, alwayson2007