Like (Copyright)
by Mike Masnick from the a-look-back dept on Friday, May 13th, 2011 @ 7:39PM
One of the key worries about copyright is how it can be used as a tool for censorship if not watched carefully. Stephan Kinsella points us to an example I was not previously aware of, in which eccentric and reclusive billionaire Howard Hughes once purchased the copyrights on a series of articles about himself in order to try to block the publication of an unauthorized biography that was largely based on those articles. Looking into this further, what's amazing is that this strategy almost worked. The lawsuit that Hughes brought against Random House and author John Keats was successful in getting an injunction at the district court level, and was onlyoverturned on appeal. That appeals court ruling has some interesting quotes in it, including questioning the fact that Hughes c learly bought the copyright just to sue (sound familiar?) and recognizing the clear First Amendment issues at stake:
The spirit of the First Amendment applies to the copyright laws at least to the extent that the courts should not tolerate any attempted interference with the public's right to be informed regarding matters of general interest when anyone seeks to use the copyright statute which was designed to protect interests of quite a different nature.So while the end result here was good, the fact that this actually did work at the lower level highlights why it's important to constantly view actions in the name of copyright law against the First Amendment. It has become all too common for people to brush aside the natural conflict between copyright law and the First Amendment, and make misleading claims about how the "safety valves" of fair use and the idea/expression dichotomy mean there is no conflict. This is not true. There is an inherent conflict, and it's important that courts recognize this and weigh copyright law against the First Amendment. Fair use and the idea/expression dichotomy may help alleviate that conflict, but they are often applied arbitrarily and with little regard to the key First Amendment issues.
Why Innovation Is Under Attack (Innovation)
by Michael Carrier from the three-reasons dept on Friday, May 13th, 2011 @ 6:24PM
This is a guest post from Michael A. Carrier, law professor at Rutgers and the author of the excellent bookInnovation for the 21st Century, which covers many of the issues we regularly talk about here. Innovation is under siege. Techdirt has cataloged the threats posed by increasingly aggressive copyright laws. I'd like to offer three reasons why we find ourselves in this situation.
- The first reason is the overheated rhetoric used by copyright holders. Today's debate takes place on a playing field marked by "theft," "piracy," "absolute property," and "rogue websites." The terms are trumpetedfrom the highest echelons of government. They are bellowed from Hollywood and the record labels. And they have controlled the debate. It does not matter that the assertions are false. Nowhere (other than in the mythical world propounded by copyright holders) do property owners have absolute rights. The rights to exclude, use, and transfer that make up property law are subject to at least 50 limits, such as easements, zoning, eminent domain, public access to beaches, and anti-discrimination laws. It is also crystal clear that taking a physical good (and leaving nothing for others) is far different than "taking" a copyrighted work (which, as sampling shows, can increase demand). The nonrivalrous nature of the copyrighted work means that one person‚s consumption does not diminish the amount left for others to consume. In fact, "pirates" often are some of the entertainment industry's best customers.
- The second reason for the threats to innovation is copyright owners' panic upon the introduction of new technologies. John Phillip Sousa thought the player piano would lead to "a marked deterioration in American music." Jack Valenti famously thought the VCR was to the American public as "the Boston strangler is to the woman home alone." The panic has extended to numerous technologies, including MP3 players, p2p software, DVRs, and digital radio and TV. But in fearing the potential of the new business models, copyright holders offer a classic example of market leaders that fail to appreciate disruptive innovation. Clayton Christensen famously showed that, when faced with a new technology that threatens to upset a profitable business model, market leaders tend not to appreciate the full potential of the new paradigm. A decade ago, the recording industry responded to Napster, which was striving to be "the online distribution channel for the record labels," not by striking a deal that would have seamlessly transported the industry into the digital era, but by suing it. While the record labels may have won the battle in shutting down Napster, they began to lose the war, as former users migrated to other p2p networks.
- The third reason is what I call the "innovation asymmetry." By that I mean that courts and policymakers overemphasize the importance of infringement. Infringing uses of a technology are presented on a silver platter by copyright holders that have every incentive and ability to highlight figures of "massive" infringement, however flawed they may be. In contrast, the noninfringing uses are more abstract and not advanced by such a band of zealous advocates. It is difficult to put a dollar figure on the benefits of enhanced communication and interaction. In addition, the uses are more fully developed over time. When a new technology is introduced, no one, including the inventor, knows all of the beneficial uses to which it will eventually be put. Just to offer two examples, Alexander Graham Bell thought the telephone would be used to broadcast the daily news, and Thomas Edison thought the phonograph would be used to record the wishes of old men on their death beds. Nor is the disappearance of the new technology likely to be lamented, as it will not disrupt settled expectations. This asymmetry, combined with costly litigation (which ensnares small technology makers in a web of complex tests and unaffordable lawsuits) explains why courts do not appreciate innovative technologies.
Burson-Marsteller Digs Itself A Deeper Hole; Deletes Critical Comments On Its Facebook Page(Failures)
by Mike Masnick from the crisis-management? dept on Friday, May 13th, 2011 @ 4:29PM
Burson-Marsteller, the PR giant, who is often used as a "crisis management" PR firm for clients undergoing bad press appears to need some outside help in handling its own crisis management. The company hasn't done a very good job responding to getting called out for trying to smear Google with questionable attacks and ghostwritten op-eds, at the behest of Facebook. The company has sort of but not really apologized, claiming that the smear campaign was not "authorized or intended." They just wanted people to "verify" the information. Uh, yeah. And, now it's gotten worse, as Burson has been caught deleting critical posts from its Facebook page, forcing the company to sort of, but not really, apologize again, and say they'll reach out to the person who had posted a link to some of the coverage of the company's Facebook wall, and tell her she can put it back up. The company also tried to brush it off by saying that its Facebook page had been receiving "a lot of profanity," and that was all they were seeking to delete. That a basic story about the controversy got deleted in the process... well... I guess that's just collateral damage.
by Mike Masnick from the tone-deaf-to-the-very-end dept on Friday, May 13th, 2011 @ 1:46PM
FCC Commissioner Meredith Attwell Baker has been receiving a ton of criticism for taking a high level lobbying job at Comcast just months after approving its huge merger with NBC Universal. The response has been almost universally to condemn Baker in a move that smacks of the corruption of regulatory capture and the revolving door between corporations and the government that regulates them. I had been wondering if all of this publicity would lead to Baker backing down and no longer taking the job (only to take a similar job, more quietly, down the road). But, instead, it looks like she's digging in her heels and insisting that nothing (nothing!) improper is going on here. She claims she hadn't even considered taking a job until months (months!) after the merger was approved:
Until late this spring, my plan was to seek renomination for a second term as Commissioner. That was true all through the winter during consideration of the Comcast/NBCUniversal transaction and in the months after it was completed. Not once in my entire tenure as a Commissioner had anyone at Comcast or NBCUniversal approached me about potential employment. When this opportunity became available in mid- April, I made a personal decision that I wanted to give it serious consideration.Nowhere in Baker's statement does she even come close to acknowledging the concerns that people have raised. Instead, she claims that she's been extra ethical in that she's "gone further" than what the law requires:
I have not only complied with the legal and ethical laws, but I also have gone further. I have not participated or voted any item, not just those related to Comcast or NBCUniversal, since entering discussions about an offer of potential employment. Because of this, I plan to depart the Commission as soon as I am able to ensure an orderly wind-down of my office.Well, isn't that nice.
by Mike Masnick from the oh-come-on dept on Friday, May 13th, 2011 @ 12:40PM
Another day, another example of a patent system holding back innovation. The latest is that a typical patent troll operation, named Lodsys, is threatening and/or suing a bunch of iOS mobile app developers for daring to make use of Apple's own in-app payment API to offer the ability to make purchases from within their apps. Lodsys lists out four patents that "are available for licensing."
- 5,999,908: Customer-based product design module
- 7,133,834: Product value information interchange server
- 7,222,078: Methods and systems for gathering information from units of a commodity across a network
- 7,620,565: Customer-based product design module
Teen Who Used Facebook Images To Rank Looks Of Female Classmates, Arrested For 'Disorderly Conduct' (Legal Issues)
by Mike Masnick from the facemash? dept on Friday, May 13th, 2011 @ 9:48AM
For anyone who's seen The Social Network or is familiar with the history and lore of Facebook, you know that prior to starting Facebook, Zuckerberg got in a bit of trouble for creating "Facemash," which took photos of students from various online "facebooks" around Harvard, put two of them together, and let people vote on who was hotter. So it's interesting to hear that a teenager in suburban Chicago has been arrested for using Facebook to do something similar with is own classmates:
A teenager who allegedly ranked females in a list on Facebook by their physical appearance has been arrested, according to a report from the Chicago Tribune. The 17-year-old, whose name isn't being released because he's a minor, is a former student of Oak Park and River Forest High School in Oak Park, Ill., and the girls he is accused of ranking in the list include former classmates, the Tribune said. Oak Park Police believe he not only created the "offensive list" but also was responsible for circulating it online, the report said. The teen was arrested Monday at home and is being charged with misdemeanor disorderly conduct, the Tribune said.While I agree that this may have been a real jerk move by the kid, it's hard to see how this should be anarrestable offense. Disorderly conduct seems like a ridiculous charge here. How is being a jerk online "disorderly conduct"?
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