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.

November 8th, 2008

Barack Obama is male, taken, and CC licensed

Posted by Denise Howell @ 10:13 am

Categories: Blogging, Copyright, Licenses, Social networking, Trust, User generated content, Voice

Tags: Creative Commons, John McCain, Barack Obama, Digital Media, Consumer Electronics, Personal Technology, Denise Howell, Flickr, Twitter, Camera Phones

I’ve been following Obama’s tweets for awhile, but had neglected the President-elect’s Flickr account until this morning when the Today Show featured some of the great behind-the-scenes election night shots posted there. A lot of these look like they were snapped on a staffer’s camera phone (digital SLR, actually). The U.S. will soon swear in its first President ever who is fluent in online communications, and that does indeed fill me with hope. As does the fact the President-elect’s Flickr photos are Creative Commons licensed. (If you haven’t already done so, you can peruse Obama’s savvy technology policy positions here.)

(Image by Barack Obama, CC Attribution-Noncommercial-Share Alike 2.0 Generic)

October 8th, 2008

Mail Goggles: an idea that goes well beyond drunk emails

Posted by Denise Howell @ 10:43 am

Categories: Blogging, Compliance, Copyright, Defamation, Lawsuits, Live Web, Trust, Voice

Tags: Google Gmail, E-mail, Blogging, Cloud Computing, Internet, Online Communications, Jon Perlow, Denise Howell

There’s a new GMail Labs app: Mail Goggles, by GMail engineer Jon Perlow:

When you enable Mail Goggles, it will check that you’re really sure you want to send that late night Friday email. And what better way to check than by making you solve a few simple math problems after you click send to verify you’re in the right state of mind? … Hopefully Mail Goggles will prevent many of you out there from sending messages you wish you hadn’t. Like that late night memo — I mean mission statement — to the entire firm.

Jon’s idea is lighthearted and fun, but when you look past the humor and consider it more broadly it’s quite brilliant. The current climate of panic is not confined to the financial markets. Corporate legal departments are bombarded with articles and concerns about online corporate communications, liability and more liability. The tug-of-war between PR/communications professionals and in-house legal continues to escalate as it becomes idiotic (if not impossible) for companies to remain on the sidelines of the Live Web. How do you train people to address the IP, defamation, and other legal concerns involved in free-flowing Web dialogue? Must every blog post and wall entry be vetted by a team of lawyers?

Expanding on Jon Perlow’s Mail Goggles idea sounds like a great solution. I like the notion of a straightforward and unburdensome series of questions as precursor to "publish." Instead of math problems, people could be asked to briefly confirm they’ve cleared rights on images, protected confidential information, and complied with policies on the quality of discourse and information provided. If uncertain on any of those fronts, they could be reminded what to do next. While a cookie-cutter approach couldn’t possibly address every legal nuance and pitfall, it could at least act as a sort of triage, speeding innocuous items out the door and letting the moderation/review process hone in on more complicated situations.

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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.

May 21st, 2008

Stanford Information Law Symposium

Posted by Denise Howell @ 10:14 am

Categories: Attention, Conferences, Copyright, Free speech, Privacy

Tags: Stanford, Internet, Blogging, Regulations, Government, Europe, Mark Lemley, Stefan Bechtold, Denise Howell

Though it could scarcely be more cumbersomely named — the Transatlantic Information Law Symposium — this upcoming (and free) program at Stanford Law School looks excellent, featuring such big thinkers as Mark Lemley and Stefan Bechtold, and such big topics as privacy, free speech, the future of Internet regulation, and one that looks particularly intriguing from the standpoint of social media and attention: property vs. contract to govern online behavior. I’d like to go, though the timing’s not great for me; if you’re going, blog the wealth.

(Image by Maveric2003, CC Attribution-2.0)

May 14th, 2008

A short, pointed list of 'wonderful policies'

Posted by Denise Howell @ 10:38 am

Categories: Blogging, Copyright, Live Web, User generated content, Voice

Tags: Boing Boing, policies, Denise Howell

In putting together a list of what I consider to be relatively clueful site policies, terms, and guidelines, I just stumbled on BoingBoing’s List of Wonderful Policies. And it is.

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 »

February 18th, 2008

Lawrence Lessig, congresscritter nominee

Posted by Denise Howell @ 9:49 am

Categories: Copyright, DMCA, DRM, Free speech, Live Web, MGM v. Grokster, Net neutrality, Privacy, Social networking, Social news

Tags: Lawrence Lessig, John Palfrey, Congress, Facebook, Denise Howell

TWiL regular John Palfrey announced a great idea last week while we were recording the forthcoming episode: a Facebook group drafting Professor Lessig for a recently vacated Congressional seat. Says John, "It’s high time we had our first true Free Culture candidate for public office." The Facebook group is about to hit 2,000 members, and there’s an official Web site as well (get your badges here). Seems appropriate in an election season so unusually filled with promise for needed change.

For his part, Professor Lessig isn’t ruling anything out, telling Ars Technica, "At this point, I’m not really able to say anything. I’ve been kind of stunned by the push of many, and am away with my family this weekend to think things through." More from Ars Technica, TechCrunch, and Slashdot.

[Update, 2/20/08 6:51 a.m.] TWiL #12 went up yesterday.

[Update, 2/20/08 6:55 a.m.] Via Jonathan Zittrain, a new site from Professor Lessig, lessig08.org: "I have decided I want to give as much energy as I can to the Change Congress movement. I will decide in the next week or so whether it makes sense to advance that movement by running for Congress."