Public Domain Human Genome Project Generated More Research And More Commercial Activity Than Proprietary Competitor

from the not-bad dept

Traditionally, there has been a blithe assumption that more innovation occurs when patents are granted than when they are not. But as Techdirt has reported, people are finally beginning to call that into question. A forthcoming paper from an economist at MIT, Heidi Williams, provides another example of where that is not the case: in the field of genomics (via @gsDetermination).

Williams has looked at the academic papers that flowed from two major competing projects: the global Human Genome Project (HGP), which placed all its result in the public domain, and Craig Venter's company Celera, which sought to patent as much as it could of the sequences that it obtained. Here's how National Journal's Brian Fung describes her results:

Using a standard measure of academic-knowledge production, she compared the number of papers published using HGP data and Celera data. By 2009, genes that had been sequenced in 2001 from HGP had produced an average of 2.1 academic papers a year, while genes sequenced that same year by Celera led to just 1.2 papers a year over the next eight years. Even though the annual pace of Celera-linked papers rose rapidly after its IP was lifted in 2003, it never caught up to the rate of publication tied to the always-open non-Celera data.

And if you're worried that this is just one, possibly imperfect measure of innovation, Williams also looked at the number of diagnostic tests developed for both sets of genes. The result was the same: that tests based on the public genome's sequences were twice as common as those based on Celera's patented genes.

She concludes:

If Celera genes had counterfactually had the same rate of subsequent innovation as non-Celera genes, there would have been 1,400 additional publications between 2001 and 2009 and 40 additional diagnostic tests as of 2009

Remarkably, it's not only academically that the Human Genome Project has proved its worth. According to estimates found in a report published in 2011:

between 1988 and 2010, federal investment in genomic research generated an economic impact of $796 billion, which is impressive considering that Human Genome Project (HGP) spending between 1990-2003 amounted to $3.8 billion. This figure equates to a return on investment (ROI) of 141:1 (that is, every $1 invested by the U.S. government generated $141 in economic activity).

(But note that more recent calculations have put the ROI nearer to 60:1 -- lower, but still an impressive figure.)

In other words, as well as growing the store of human knowledge more effectively, publicly-funded research that does not seek patents on its work can provide taxpayers with big economic paybacks, too -- something worth remembering at a time when researchers are under increasing pressure to patent everything they can.

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Filed Under: human genome, public domain

Broadcast Treaty Is Baaaaaack: Plan To Create Yet Another Copyright-Like Right For Hollywood

from the and-here-we-go-again dept

Every few years the proposal for a "broadcast treaty" comes up again. The idea is to give a new copyright-like right to broadcasters. So, for example, should NBC broadcast a public domain film, like George Romero's Night of the Living Dead, it could then effectively claim a copyright-like control over it, so that you couldn't record it and make use of it yourself. If that seems like a really dumb idea to you, welcome to the club. You're not alone. Basically, everyone who isn't tied to a broadcaster thinks it's a terrible idea. Even Mr. Mythbuster Adam Savage spoke out against the idea two years ago when it last came around.

Indeed, it does seem to come around every few years like clockwork, as Hollywood pushes WIPO to put together a treaty creating broadcast rights. For a brief while, driven by some more enlightened folks within the Obama administration, the US government had pushed back against such a treaty, but nearly all of those people have long since left the administration, replaced by longterm entertainment industry folks and copyright maximalists. So it was little surprise last year when the US suddenly announced that it now supported a broadcast treaty. That announcement came from Shira Perlmutter, a former entertainment industry lobbyist, now 'Director of International Affairs' at the USPTO.

For that reason, the broadcast treaty, after years of going nowhere, should be watched quite carefully. Negotiations at WIPO have just gotten underway, and the entertainment industry has a "large presence" at the negotiations, while there is just one group, KEI, representing consumer interests directly (CCIA is also there representing the tech industry, and has a strong history of pushing back against bogus expansions of IP law, including the broadcast treaty). However, as Jamie Love, from KEI has noted, no one on the other side seems willing to explain why a broadcast treaty is even needed in the first place:

This is a frustrating negotiation for all sorts of reasons, but I'll start with the most basic concerns. It has been extremely difficult to get broadcaster treaty supporters to explain why a treaty is needed, in a world where content is already protected under several copyright and related rights treaties. At the last two SCCR meetings KEI was unable to get a single lobbyist for the broadcast treaty to make a public video interview setting out the case for the treaty, or even to answer basic questions about their objectives. We don't know if the rationale is related to piracy or to create a set of new economic rights for people who broadcast (and do not create) content. And, we don't understand why copyright does not already provide mechanisms to address piracy, when it occurs.

There are alleged gaps in copyright protection for works, but other than vague assertions that sporting events are not protected in some countries (which ones?) and some poorly articulated claims that broadcast owners don't have standing to litigate piracy, the "gaps" argument is hard to follow -- even though people are genuinely open minded, and would consider fixes to problems if they could be explained.

Some broadcasters say they don't care about the creation of new economic rights, with others clearly do. But what are these rights, and who gets them? There are proposals to create rights for giant corporations that own "channels" of content, like HBO, ESPN, the Disney Channel, etc, and these new rights would divert revenue from copyright owners to distributors. Since the ownership of distribution of video is much more concentrated than is ownership of video content, this would have distributional impacts that are not well understood. Also, there is likely to be redistribution of incomes out of some countries to a handful of large content distributors, and the impact of this cross country redistribution is not well understood.

As is unfortunately typical for WIPO, the negotiations are being led by faith-based reasoning that this is "needed," but without any data or factual basis to back it up.

WIPO could try to sort our these empirical and policy issues so people could better evaluate the proposals, but so far there has been zero economic analysis, and lots of talking about non-issues, such the interventions that seem to suggest that infringement of copyrighted material that is broadcast is somehow not an infringement without the treaty (Really, where?)

We've discussed many times how ridiculous it is that these kinds of things are "created" in these kinds of negotiations, and then foisted upon various country governments. There is absolutely no reason to create this new treaty other than to give yet another unnecessary gift to broadcasters, and to take away from the public and the public domain.

Filed Under: broadcast treaty, broadcasts, copyright, public domain, wipo

How Washington DC Went From Locking Up Laws To Releasing Them In The Public Domain Within Days

from the good-move dept

In past years we've had stories about both Oregon and California claiming copyright over their own laws, which is ridiculous. If copyright is supposed to be about the incentives for creative expression, then it should have nothing to do with lawmaking at all. It's not as if the state needs a copyright incentive to write laws -- though some states have tried to argue that it needs the incentive to entice big corporate entities to print the laws. That, too, is ridiculous, as plenty of public domain info gets printed all the time -- and it really has no bearing on the simple fact that laws are public domain material, considering that the public is expected to know and obey them. While the Copyright Act makes it clear that any work done directly by federal government employees is automatically in the public domain, it's just slightly squishier when it comes to works from state governments, though there, too, it is generally believed that they fall in the public domain, as they should.

In the last week, a lot of attention was paid to the fact that Washington DC had been claiming a copyright on its laws, saying that you could not download a digital copy, and the state couldn't even release an entire copy of its own laws under a FOIA request, because of the copyright and the contract it held with outside publishing firms (initially West and, more recently, Lexis). As with the stories in Oregon and California, the person who helped drive attention to just how crazy this is was Carl Malamud, hero to everyone who believes in the importance of open access to public information. This time, he paid $803 for a copy of the code, scanned it all, and sent copies on USB drives in the shape of famous American Presidents to a bunch of folks.

Normally, at this point in the story, we hear about the local government hemming and hawing or even issuing vague threats. But not in the case of DC. Over the course of a few days, it appears that Washington DC's tech savvy General Counsel V. David Zvenyach quickly moved to deal with the problem. Part of the issue was that the only digital copy of the code that they had was the one given to them by West, and it contained a variety of extraneous information that was West's IP, including West logos on each section of the law (representing many thousands of copies). Zvenyach had Joshua Tauberer come by and spend a day removing every bit of West IP from the document and quickly releasing a downloadable copy of the DC Code with a CC0 public domain license.

That's pretty awesome. To go from having the code locked up for no good reason to a public domain downloadable release in days is pretty cool. Kudos to Malamud, Zvenyach and Tauberer for their part in this, as well as Tom MacWright, who first sought the copy of the code and brought this issue to the attention of Malamud and others.

Of course, it's not a perfect solution. As MacWright notes in his post about this release:

There are a few things that this isn’t: it isn’t the official copy of the code, and lawyers would be ill-advised to cite it alone. It isn’t up-to-date – the council is fast-moving and this is just a snapshot. In time we’ll fix these problems too.

Yes, even though it's being released directly by the DC Council on their website, it's designated as an "unofficial copy" and it's only up-to-date through last year. However, hopefully others will get it up to date, and eventually the DC Council will be able to list an "official" copy as well. Oh, and for those living in or around DC, MacWright is also planning a hackathon around this new code, to see what awesome and useful tools people can build on top of it.

Filed Under: code, copyright, laws, public domain, washington dc
Companies: lexis, west

Producers Of '50 Shades' Porn Parody Argue That The Work Is In The Public Domain... But It's Not

from the that's-not-how-the-law-works dept

Back when Universal Studios sued the makers of a "porn parody" of the insanely popular book 50 Shades of Grey, we were among those who pointed out that the book itself was really originally a fan fiction work based on the Twilight books/movie series, and that it seemed a bit hypocritical to not allow other derivative works. I don't know if it was because of us calling out this fact, but the producers, Smash Pictures, are using that exact point in their defense... but then are bizarrely arguing that this makes the work in the public domain.

On information and belief, as much as 89% of the content of the allegedly copyrighted materials grew out of a multi-part series of fan fiction called Masters of the Universe based on Stephenie Myer's Twilight novels. On information and belief, this content was published online between 2009 and 2011 in various venues, including fanfiction.net and the person website of Erika Leonard. On information and belief, much or all of this material was placed in the public domain.

To which we can only say, "huh?!?" I could see an argument being made about transformative works and fair use, but there's no indication anywhere that the work is in the public domain. Just because the same author posted a very similar version online earlier has no bearing on the copyright in the work itself. It kind of makes you wonder about the lawyer that Smash Pictures has working on this case that they'd even make this argument.

Not surprisingly, Universal Studio's high priced lawyers hit back pretty quickly, calling the filing "slapped-together" and pointing out that the whole public domain argument makes no sense.

Moreover, their unsupported assertion that “as much as 89% of the allegedly copyrighted material is derived from previously published, public domain fan fiction based on Stephanie Myers’ Twilight novels” is both deliberately misleading and legally flawed. Defendants suggest that the Fifty Shades Trilogy is “derived from” works by authors other than Erika Mitchell. However, Defendants are in fact referring to an earlier version of the same story written by Ms. Mitchell, which they in their own improper deposition notice identified as “Master of the Universe.” ..... Defendants do not and cannot provide any legal authority for the proposition that an earlier version of Ms. Mitchell’s work is now in the “public domain.” They can hardly defend their infringement of Plaintiffs’ copyrights in the Fifty Shades Trilogy by claiming that it is substantially similar to Ms. Mitchell’s own earlier work.

Indeed. While I still think the lawsuit itself is silly, the public domain claim here is just wacky.

Filed Under: 50 shades of grey, copyright, derivative works, fan fiction, parody, porn, public domain, transformative, twilight
Companies: smash pictures, universal studios

The Insanity Of Making A 'Wizard Of Oz' Film In Today's IP Climate

from the goodbye,-yellow-brick-road dept

It's always tough to root for the underdog when neither of the involved parties deserves that title. So, rather than pick one, we'll just discuss the overweening ridiculousness of copyright law. It's a subject that never goes out of style, thanks to our legislators' willingness to continually extend copyright protection terms.

As was covered much earlier in the year, Disney is producing its own "Wizard of Oz" movie, titled "Oz the Great and Powerful." While Frank L. Baum's books are definitely in the public domain, filmed depictions of Baum's characters are mainly the property of Warner Bros. WB attempted to head off this incursion into its domain by filing a trademark application on "The Great and Powerful Oz," but it was a week too late and is now (presumably) several billion dollars short (H'Wood mathematics, yo).

Having failed to block Disney's entry into the Oz arena, Warner has now busied itself with watching each development for any slip-up that could land it a tasty settlement -- or an injunction. To that end, Disney has placed its own legal team on the set to ensure that none of the characters or elements in the Disney film bear too much resemblance to Warner's property. The sheer amount of highly detailed micromanagement needed to avoid the rights holder's litigious wrath borders on OCD-hellish insanity.

Striving for a visage different from the one Margaret Hamilton made famous, Howard Berger, an Oscar-winning makeup artist, “was finally able to come up with a shade of green which satisfied Disney’s legal team,” SlashFilm.com reported after a visit to the set. According to Disney’s production notes Mr. Berger named his custom color Theostein — a conflation of the witch’s name before she turns wicked, and Frankenstein.

When something as minimal as a move left or right on the Pantone chart could potentially trigger some legal action, you know you've reached some sort of watershed mark in IP protection. It's highly doubtful our founding fathers had a "shade of green that satisfies a legal team" in mind when they set about trying to "promote the progress of science and the useful arts."

Nor were they particularly concerned with innovative hairdos.

About 40 dwarfs were cast in “Oz the Great and Powerful” as Munchkins... They still have weird hair, but Disney lawyers nixed at least one style as too similar to one from the original movie. It was tweaked in postproduction using computers.

True, there are many things the founding fathers couldn't possibly have considered over two hundred years ago, but what's going on here is resembles nothing more than gerrymandering Baum's legacy in order to avoid a costly turf war -- over something that should be in the public domain.

It's a rare day when you find yourself commiserating with one of the biggest IP thugs of all -- Disney. Baum's original work is now a minefield, and anyone hoping to utilize this public domain title now has to contend with a powerful legal team protecting a 74-year-old film. But, I suppose, if you're going to choose someone to walk across an IP minefield, it might as well be Disney. It makes perfect karmic sense.

Filed Under: copyright, frank l. baum, lawyers, oz the great and powerful, public domain, wizard of oz
Companies: disney, warner bros.

Could Open Source Software Be Put Into The Public Domain Instead?

from the need-to-fix-public-domain-first dept

There are dozens of free software and open source licences -- many would argue rather too many. Different licenses impose different conditions. For example, the best-known and most widely-used is the GNU General Public License, which is designed to ensure that anyone building on GPL'd software and distributing it should make the modified program available under the same license. Others, such as the BSD license simply require the copyright and license notices to be included with any code that is used.

Open source licenses are often described as the "constitutions" for the communities that form around the software they govern. That would seem to imply that in their absence, alongside other unwanted consequences, the communities would collapse. A provocative paper by Clark Asay, Assistant Professor at Penn State University Dickinson School of Law, suggests that this isn't the case, and that software could be released into the public domain and yet still thrive as a collaborative project.

He points out that despite its undeniable success -- free software now dominates many of the most important sectors in computing -- there are transaction costs associated with it. For companies, these arise from ensuring full compliance with licenses, no mean task if corporate lawyers are unfamiliar with the subtleties of this world. For programmers who are choosing a free software license for their code, not only is there a bewildering choice, but some of them are mutually incompatible. This means that code from one project can't always be dropped into another using a different licence, which makes building on open source harder than it should be.

Asay suggests that placing software into the public domain would avoid all these issues, and allow the code to be re-used more widely, with resulting benefits for coders, companies and users alike. However, he recognizes that there are some important concerns that need addressing.

For example, one of the strengths of licenses like the GNU GPL is that it prevents free riding: if a company takes GPL'd software and uses it in a product that it distributes, it must adopt the GNU GPL and contribute its code back to the original code's community. If the code were in the public domain, that wouldn't be the case -- it could simply be taken and used without further ado. But Asay notes that there are good reasons why companies are likely to make their code available anyway:

if a firm were to take and close a project, they almost certainly would not obtain the free labor that contributors around the world are willing to provide to open-licensed projects. Without that free labor, firms would lose the most significant advantages of an open model of innovation, and the free labor would likely remain loyal to the open version of the project. Firms thus already have incentives to open and contribute as much of their materials as possible, since doing so will attract free labor and trigger innovation in directions that better suit the firm and its strategic direction.

The key point is that the code without the community that creates it is pretty much dead. A company may gain a short-term advantage in taking public domain code and enclosing it, but by refusing to give back its changes, it loses any chance of collaborating with the coders who are writing the future versions. It will have no influence, and no way of raising issues of particular concern that help it with its products. Instead, it will have to keep up the development of its own version of the code single-handed. That's likely to be costly at best, and may even be impossible except for the very largest companies (Apple is an example of one that has succeeded, basing its Mac OS X operating system on the free BSD version of Unix.)

That also explains why coding communities will still function, even in the absence of "constitutions". Anyone who refuses to accept consensus decisions simply becomes isolated if they try to ignore them. Alternatively, if the community leadership starts to go astray, forks of the code may occur that gain sufficient supporters to become the main line of development. In other words, the natural collaborative development dynamics produce many of the same results as formal licenses that lay down what norms and behavior are expected.

Asay also tackles the important issue of attribution in a world of public domain software. Many programmers contribute to free software not for direct economic benefit, but to enhance their reputations, which may translate into financial benefits in the form of a higher salary or job offers. Asay points out that the current system of providing recognition is unsatisfactory -- often attribution is buried deep in licensing documents that no one ever looks at. That may explain in part why developer profiles on the popular GitHub code hosting service are becoming more common: it's a way of displaying programming prowess in a form that is easy for peers -- or potential employers -- to access. As the site itself explains:

Every developer gets their own profile page that is automatically updated with a stream of the important things they are doing on GitHub and a list of the Open Source projects they are hosting at GitHub. Many developers have started referring to GitHub Profiles as the new résumé.

The use of such pages makes the attribution requirements of software licenses less crucial, and would obviously work fine even if software were released into the public domain.

One problem with Asay's idea is that the state of the public domain today is unsatisfactory. For example, it is very hard to place works in the public domain -- the Creative Commons CC0 is perhaps the most thoroughly worked-out tool for doing so. As Asay notes, we need legislation to formalize and facilitate this move, and to address issues such as liability.

This difficulty emphasizes how much the public domain has been neglected as copyright maximalists have sought to portray it as an anomalous wasteland that needs to be made "productive" by reclaiming it through copyright enclosure. But the public domain is the natural condition of all knowledge -- that which can be shared freely -- while it is copyright and its monopoly that is the deviation from that state. If nothing else, Asay's proposal may help to bring some much-needed attention to this important but neglected area.

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Filed Under: licenses, open source, public domain

Historical Hypocrisy: Donkey Kong, King Kong, & The Public Domain

from the monkey-see-monkey-do dept

Universal Studios seems to have some trouble establishing concrete ideas and positions when it comes to copyright on its own products. In recent iterations, this has manifested itself in the form of their protesting a parody of 50 Shades of Grey while conveniently ignoring that work's birth in the form of Twighlight fan-fiction. Alternatively, there are times when Universal doesn't even seem to know what it holds the rights to and what it doesn't. Well, it turns out that these stumbles aren't exactly a new experience for Universal.

Chris ODonnell writes in with the historical and hysterical case of Universal suing Nintendo over Donkey Kong shortly after Universal itself had argued that the property the dispute was based on, King Kong, was in the public domain. See, back when Michael Jackson was still best known for his music, Nintendo came up with their iconic Donkey Kong character, admittedly in some part inspired by the famous King Kong character. This inspiration, it turns out, came after the fact, but that didn't stop Universal Studios from filing suit against Nintendo, because they had released a remake of King Kong a few years earlier. While some within Nintendo wanted to simply settle with Universal and move forward, others within sought out the words of a key ally to fight against them, and that ally was Universal Studios.

Universal’s King Kong movie debuted in 1976, but it wasn’t an original story. Rather, the movie was a remake of a movie with the same title made in 1933 by RKO General. The 1976 remake came with its own round of litigation, with many parties claiming to have at least partial rights over the name, characters, and plot of the movie. Universal, however, argued that no one did, and that the characters and plot were in the public domain. In the subsequent litigation with Nintendo, the court noted this inconsistency, using it as part of the basis for finding that Nintendo’s Donkey Kong game did not infringe upon Universal’s rights (if any) over King Kong. Nintendo prevailed, and, when Universal appealed, the next court admonished Universal for its inconsistent legal logic.

Ah, sweet, sweet hypocrisy. With one hand, hitting Nintendo over the head with the IP hammer, while holding a shield against another IP hammer with the other. The court was not pleased, noting that Universal's president, Sidney Sheinberg, was clearly well versed in the intellectual property status of King Kong via the earlier lawsuit, and to then pretend the company held rights in it was clearly a move to abuse the law:

Finally, Universal's conduct amounted to an abuse of judicial processes, and in that sense caused a larger harm to the public as a whole. Depending on the commercial results, Universal alternatively argued to the courts, first, that King Kong was part of the public domain, and then second, that King Kong was not part of the public domain, and that Universal possessed exclusive trademark rights in it. Universal's assertions in court were based not on any good faith belief in their truth, but on the mistaken belief that it could use the courts to turn a profit.

As noted, Nintendo was victorious and Donkey Kong was released, since becoming its own franchise and propelling Nintendo so such status that it can initiate its own legal action based on its intellectual property.

Such a wonderful web intellectual property tends to weave.

Filed Under: copyright, donkey kong, king kong, public domain
Companies: nintendo, universal studios

Dirty Deeds: French National Library Privatizes Public Domain, Part 2

from the because-the-situation-hadn't-hit-MAXIMUM-UNCOMFORTIBILITY dept

Earlier in January, the French Ministry of Culture proudly announced a fresh public-private partnership between the French National Library and the privately-held ProQuest, defining how the company will digitize 70,000 books originally published between 1470 and 1700. The agreement sparked outrage among free culture defenders, who denounced a privatization of materials in the public domain:

"While these public private partnerships enable the digitization of these works they also contain 10-year exclusive agreements allowing the private companies carrying out the digitization to commercialize the digitized documents. During this period only a limited number of these works may be offered online by the BnF."

As none of the agreement partners bothered to reply to inquiries from journalists and free culture advocates, the only source of information was a press release from the Ministry of Culture mentioning an official agreement between the Library (Bibliothèque nationale de France, BnF) and ProQuest. The release was highlighting the somewhat obscure branch "BnF-Partenariats" as executives of the contract, and that this agreement is part of a wider initiative: "Early European Books."

The issue here is not commercial use of materials in the public domain but the labyrinthine logic of the agreement. This logic proposes that a client from the public sector (i.e. research and education institutions) will buy a number of works handled by another public institution (i.e. the French National Library), and the profits will reimburse money advanced by a private service provider. A painful situation for our cultural heritage, forcibly entrusted to be the square peg to get into the round monetary hole.

What is unclear, however, are the legal terms under which the digital copies will be handled. In plain English, the BnF has signed an agreement to sell access to digitized copies of books in the public domain. This makes a travesty of its official role: the BnF is supposed to grant access to these works, but the BnF-ProQuest agreement actually blocks access. In the present (whacko) case, the Library – that is, the public institution invested with the power to manage commons, – not only does what is normally the publisher's job, selling, but it also monetizes these works, thus acting as a merchant, which takes work from publishers. The larger questions this raises over exclusivity and ownership of these digital versions are very important. From what's been said to date, it seemingly implies that the digitization of those books means the outcome is a brand new production owned by the ProQuest, the digitization service provider.

Even more strange? ProQuest's agreements elsewhere are quite different, and not nearly as controversial. The BnF-ProQuest agreement is a part of the "Early European Books" initiative. In addition to the French, four other national libraries are a part of the effort: the Royal Library (Denmark), the National Central Library of Florence (Italy), the National Library of the Netherlands, and the The Wellcome Library, London (UK).

The details for each of these agreements, however, are quite different than the agreement in France. Indeed, in every other case, ProQuest digitizes, at its own expense, the works in the public domain operated by the respective partnering national library. It then offers free access to the digital versions of these materials within the country. As ProQuest needs to earn money, it sells the access to its database to other countries (through subscriptions contracted by the universities). According to the BnF-ProQuest agreement, however, no free access to the digital versions is provided other than the very limited version as described above.

Oh, and as if a national library agreeing to sell the country's cultural heritage was not absurd enough, when asked for the details of the agreement the BnF has now admitted that its contract with ProQuest has been misplaced. One might properly note that, so too, has the public domain been "misplaced" with this deal.

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Filed Under: france, libraries, privatization, public domain
Companies: bnf, proquest

Arthur Conan Doyle Estate Sued To Show That Sherlock Holmes Is Public Domain

from the go-get-'em dept

A little over three years ago, we had a discussion concerning whether or not Sherlock Holmes was in the public domain. By our understanding of the law, the character absolutely is in the public domain. There is one remaining book -- The Case-Book of Sherlock Holmes -- which contains a few stories that are still covered by copyright, but the characters and most of the written works are in the public domain. However, the legal representatives of the Sir Arthur Conan Doyle Estate use the fact that one book is still held under copyright to argue that the character is still protected until (at least) 2023. Of course, as with things like Happy Birthday, even if it should be in the public domain, if there's some corporate entity insisting that it's covered by copyright, you'd have to go to court to prove otherwise. And most people don't want to bother.

Thankfully, that just changed when it comes to Sherlock Holmes. Sherlock Holmes scholar, Leslie S. Klinger, was working on a book (with Laurie R. King) called In the Company of Sherlock Holmes, detailing "major mystery/sci-fi/fantasy authors inspired by the Holmes tales." However, the Conan Doyle Estate contacted their publisher, Pegasus Books, demanding a license fee, and saying if they weren't paid, they'd make sure that no major distributors would sell the book. Specifically, the estate directly threatened that:

If you proceed instead to bring out Study in Sherlock II unlicensed, do not expect to see it offered for sale by Amazon, Barnes & Noble, and similar retailers. We work with those company's routinely to weed out unlicensed uses of Sherlock Holmes from their offerings, and will not hesitate to do so with your book as well.

Like too many publishers, Pegasus freaked out and refused to publish the book at all, so Klinger has taken it upon himself to file for declaratory judgment. You can see the full filing posted here (and embedded it below).

The lawsuit points out that Sherlock Holmes characters have long been in the public domain, and even that remaining book of stories includes two that are clearly in the public domain, as they were published prior to 1923. But, most importantly "none of the Sherlock Holmes Story Elements first appeared in any of the stories that were collected in The Case-Book of Sherlock Holmes." In other words, the entirety of copyright protected elements in the character were published outside of that one book, and are now in the public domain.

The lawsuit also notes that Klinger and King's publisher on an earlier book, A Study in Sherlock, did, in fact, pay a license to the estate, but they did not concede any of the legal arguments. When the estate threatened Klinger, he correctly explained that no license was needed, but he's still dealing with the fallout from his publisher getting cold feet. Thus, he's asking the court to state, definitively, that the character is in the public domain. Kudos to Klinger for taking this on. We need more people willing to stand up for the public domain. Also, jeers to Pegasus for not being the one to take this on and for freaking out over the bogus threat.

Filed Under: arthur conan doyle, copyright, leslie klinger, public domain, sherlock holmes
Companies: conan doyle estate, perseus books

Copyright Explained Musically

from the copyright-does-inspire-some-creativity dept

For those of you who claim that copyright inspires no creativity whatsoever, perhaps you have not seen the following video, PandoHouse Rock: Copyright, explained, a collaboration between PandoDaily and Explainer Music's David Holmes: I usually find these sorts of things to be pretty bad. Copyright isn't something that you can usually simplify down to a song, but this one actually does a pretty good job of making the key point: which is that copyright is a crazy mess and widely abusable and abused. There are a few minor points I might quibble with (it's not clear that "It's A Wonderful Life" is really in the public domain for example), but on the whole it's one of the better such videos we've seen. Oh yeah, also, Holmes has put the video itself into the public domain, which is something we do with Techdirt content as well, but which very few other people do. Nicely done.

So, yes, copyright may have inspired this song... to be put into the public domain.

Filed Under: complicated, copyright, fair use, music, public domain