Copyright Week: How Copyright Is Being Use To Destroy Property Rights

from the not-enhance-them dept

The latest in our posts for Copyright Week explores the concept of "you bought it, you own it," and how that's going away thanks to copyright. What's funny (or depressing) is that copyright's strongest defenders like to claim that protecting stronger copyright is about increasing "property rights." We've long since pointed out that copyright and property are very different. Property, as a concept, was developed to better manage the efficient allocation of scarce resources. But when something isn't scarce, it simply makes no sense to have a property right around it.

But we're not here to discuss whether or not copyright is or isn't property right now. Instead, let's look at how copyright has fundamentally taken away property rights from many. And let's start out with a look back into history. This isn't something that is necessarily new. You can go all the way back to 1773 and the famous case in Scotland of Hinton v. Donaldson, in which Lord Kames was already aware of how excessive copyright can interfere with real property rights:

What is then the nature of the pursuer's right? He does not pretend to say, that it is a right to any corpus, to any subject that can be possessed, or that can be stolen from him. Ergo, it is not property. Taking it in all views, no more can be made of it than to be a privilege or monopoly, which entitles the claimant to the commerce of a certain book, and excludes all others from making money by it. The important question then is, from what source is this monopoly derived, a monopoly that endures for ever, and is effectual against all the world? The act of Queen Anne bestows this monopoly upon authors for a limited time upon certain conditions. But our legislature, far from acknowledging a perpetual monopoly at common law, declares that it shall last no longer than a limited time.

But to follow out the common law. The composer of a valuable book has great merit with respect to the public: his proper reward is approbation and praise, and he seldom fails of that reward. But what is it that entitles him to a pecuniary reward? If he be entitled, the composer of a picture, of a machine, and the inventor of every useful art, is equally entitled. Such a monopoly, so far from being founded on common law, is contradictory to the first principles of society. Why was man made a social being, but to benefit by society, and to partake of all the improvements of society in its progress toward perfection? At the same time, he was made an imitative being, in order to follow what he sees done by others. But to bestow on inventors the monopoly of their productions, would in effect counteract the designs of Providence, in making man a social and imitative being: it would be a miserable cramp upon improvements, and prevent the general use of them. Consider the plough, the loom, the spinning wheel. Would it not sound oddly, that it would be rank injustice for any man to employ these useful machines, without consent of the original inventors and those deriving right from them? At that rate, it would be in the power of the inventors to deprive mankind both of food and raiment. The gelding of cattle for food, was not known at the siege of Troy. Was the inventor entitled to a monopoly so as to bar others from gelding their cattle? What shall be said of the art of printing? If the monopoly of this useful art was to be perpetual, it would be a sad case for learned men, and for the interest of learning in general: it would enhance the price of books far beyond the reach of ordinary readers. Such a monopoly would raise a fund sufficient to purchase a great kingdom. The works alone of Shakespeare, or of Milton, would be a vast estate. Te art of making salt water fresh is a very late invention. Was it ever dreamed to be a transgression against property, to use that art without consent of the inventor?

I observe, in the next place, that this claim, far from being founded on property, is inconsistent with it. The privilege an author has by statute, is known to all the world. But I purchase a book not entered in Stationer's hall; does it not become my property? I see a curious machine, the fire engine, for example. I carry it away in my memory, and construct another by it. Is not that machine, the work of my own hand, my property? I buy a curious picture, is there any thing to bar me from giving copies without end? It is a rule in all laws, that the commerce of moveables ought to be free; and yet, according to the pursuer's doctrine, the property of moveables may be subjected to endless limitations and restrictions that hitherto have not been thought of, and would render the commerce of moveables extremely hazardous. At any rate, the author of avery wise or witty saying, uttered even in conversation, has a monopoly of it; and no man is at liberty to repeat it.

Lord Kames immediately understands the dangerous nature of how copyright can actually interfere with the property rights of others, and it's a situation that has gotten significantly worse over time, especially now that all sorts of things -- digital and physical -- include code or other content that can be covered by copyright law. And, as such, things that we "buy" every day are no longer actually being bought, but rather licensed -- and with that license comes all of the restrictions that Lord Kames mocked as crazy centuries ago.

Last year, Alex Cummings wrote an excellent article discussing the end of property rights, because copyright was slowly being used to take those rights away, and how it's only getting worse:

Today, we see a renewed attack on the rights of consumers by big business. Overly zealous regulation means that consumers are essentially barred from "unlocking" a cell phone, or severing the device from its original wireless carrier. Critics warn that such restrictions not only limit the rights of consumers but threaten to stifle old-fashioned tinkering and innovation. It is as if Ford told customers that they can't pop the hood of their car and mess around its inner workings (which is how the world got NASCAR, incidentally).

How far should a phone company's power extend into our personal lives when we buy one of their products? When you buy a phone or an MP3, is it really yours—or has a company just loaned it to you with a laundry list of stipulations and provisos? The age of cloud computing is upon us, and soon most of our books, movies, and musics might have no material form. We may discover that buying something no longer means owning it in any meaningful sense—and our stuff isn't really ours anymore.

It used to be that if you bought something, you owned it. That's a property right. But that's being constantly eroded thanks to the over-aggressive use of copyright. Even worse, many of the worst abusers of this want the best of both worlds. They want to pretend something is a purchase when it benefits them, while arguing that same "purchase" is just a license at other times. It's Schrodinger's copyright. But the end result is the same: copyright is being used to take away basic property rights by hiding it in the fine print.

And that has massive implications for ownership, economics and innovation. True property rights are key to a functioning economy. But when everything you buy is not actually yours, and you're unable to do what you want with it, then you limit the ability to build up markets and to further innovate. So much innovation comes from someone taking something they've bought, tinkering with it, changing it, improving it, making it useful for other purposes. But in a world where copyright and control rule over all, you limit that kind of innovation, such that only the copyright holder (often not the initial creator) can control that innovation and process. And that rarely ends well.

So, yes, let's talk about property rights and how important they are. But if we're talking about copyright in that context, it needs to be by noting just how far copyright has gone to take away and destroy our basic property rights. And that's something that needs to change.

Filed Under: copyright, copyright week, freedom to tinker, innovation, licenses, ownership, property rights, you bought it you own it

Once Again, The RIAA Shows How Easy It Is To Infringe On Copyrights

from the oops dept

One of the regular claims from the major labels and their representative groups, like the RIAA and BPI, is that copyright infringement is serious business, and everyone "knows" when copyright is being infringed. They always seem to brush off any claims of accidental infringement as if that's impossible. And then, of course, they get caught doing it themselves. Over the weekend, TorrentFreak had the story of how both the RIAA and BPI violated the terms of licenses for open source software they used on their website, which makes it infringing. To their credit, both organizations fixed the violations pretty quickly upon being contacted, but it again raises a larger point. With the state of copyright law today, it's incredibly easy to infringe. Law professor John Tehranian did some research a few years ago, into how much of his normal daily activity could be considered copyright infringement, and realized that under today's insane statutory damages rules, he had a daily liability of $12.45 million -- and that wasn't because he was downloading music. It was just everyday activities that people do all the time.

So, there shouldn't be anything wrong with the RIAA and BPI screwing up like this and infringing on some copyrights. It happens. But one would hope this leads those organizations to realize that their extreme claims about copyright infringement and their ridiculous support for statutory damages are way out of line with reality. But, since they remain such big supporters of statutory damages, and always seem to push for the maximum, would each organization be willing to donate $150,000 (the statutory maximum) to the open source projects which each of them used without a proper license? It seems only fair.

Filed Under: accidental infringement, copyright, licenses
Companies: bpi, riaa

Canadian Anti-Infringement Enforcement Company Caught Using Infringing Photos On Its Website

from the casual-infringement-for-all! dept

IP "enforcement" is a Herculean task (according to the enforcers), one that requires so much time and energy that those pursuing infringers barely have time to make sure their own backyard is clean. Many in the copyright industry (or closely affiliated) have been caught infringing on others' copyrights: hosted infringing material. SOPA pusher Lamar Smith. NBC Universal. Righthaven. The US Copyright Group. The list literally goes on and on.

Here we are again, discussing an entity so concerned with outside infringement, it can hardly be bothered to notice the infringement within its own walls. Canipre, the Canadian "forensics software" company that has hunted down IP addresses for a "million pirates" on behalf of lawsuit-happy studios like Voltage Pictures ('Hurt Locker,' anyone), has decked out its (rather overdramatic) website with the unlicensed photos belonging to others.

Canipre, as a company, offers to track down people who are illegally downloading copyrighted material from record companies and film studios. According to their website, they have issued more than 3,500,000 takedown notices, and their work has led to multimillion dollar damages awards, injunctions, seizure of assets, and even incarceration.

In a recent interview, Canipre's managing director Barry Logan explained that it's about much more than just money—he's hoping to teach the Canadian public a moral lesson:

"[We want to] change social attitudes toward downloading. Many people know it is illegal but they continue to do it... Our collective goal is not to sue everybody… but to change the sense of entitlement that people have, regarding Internet-based theft of property.”

Well, it seems the "sense of entitlement" goes all the way up. Here's a screencap of Canipre's website that features a self-portrait by Steve Houk.


We'll quote Vice here:

So, just to be clear: Canipre has written "they all know it's wrong and they're still doing it." Referring to copyright theft. On top of an image that they are using without the permission of the copyright holder. On their official website.

Houk says no permission was given to use his photo. He contacted Canipre directly to discuss its infringement and to point out that is was "disheartening" to see a company claiming to "champion intellectual property rights" obviously disregarding the rights of others. This led to Canipre's marketing director firing off a volley of emails and phone calls before finally deciding to pass the buck.

Logan claimed that the company used a 3rd party vendor to develop their website and that the vendor had purchased the image from an image bank.

I pointed out to Logan that if that was true, he had basically paid his vendor to rip off other people's creative work. Logan told me that he would contact his web provider and have the image removed. He also told me that he would provide me with the name of the website developer and the name of the image bank where they obtained my photo.

So, it's important that Canipre maintains a presence on the web that properly (and noirishly) delivers its message on the importance of intellectual property rights, but not important enough to dot i's, cross t's and make sure its "third party vendor" isn't simply grabbing images from "the internet" (or image banks with their own infringement problem).

Logan has yet to provide the name of the developer or the image bank, so it still remains somewhat of a mystery which 3rd party vendor slapped Houk's photo onto an IP enforcer's website. And this photo, taken by Sascha Pohlflepp. And this one, taken by Brian Moore. At this point, all of the infringing photos have been taken down, but only after Vice called attention to Canipre's actons.

The ironic thing about the last two photos is that they're both Creative Commons-licensed, meaning all Canipre (or its vendor) had to do was properly attribute the photos. But neither could be bothered.

Now, some might say that in the scheme of things, Canipre's infringement is nothing compared to the infringement it's fighting. But here's the difference. Canipre is a company that helps studios like Voltage sue alleged infringers based on not much more than an IP address. File sharers aren't turning a profit or presenting themselves as righters of the world's wrongs. If you're going to put yourself in the position of "educating" people (via mass lawsuits) about the importance of the intellectual property rights you're being paid to protect, you had better make sure you're not stepping on the IP toes of others.

Filed Under: canada, copyright, infringement, licenses, photographs
Companies: canipre, voltage pictures

Microsoft: Just Kidding, You Can Transfer Licenses For Your Retail Versions Of Office

from the the-customer-is-always-right dept

A few weeks back, I wrote a piece about how Microsoft was changing the licensing terms for the retail versions of its Office product so that it would be a single install license. As I mentioned in that piece, this seemed like a pretty clear attempt to get retail customers to move to MIcrosoft's Office 365 line, requiring an ongoing subscription. Otherwise, retail customers would be beholden to their PCs, left to buy a new copy of Office should that machine no longer function (especially so if that machine wasn't under warranty). Customers, to put it mildly, were not impressed.

And it was that customer feedback that has apparently prompted Microsoft to revert the Office 2013 retail products back to the traditional, transferable licensing arrangement.

Based on customer feedback we have changed the Office 2013 retail license agreement to allow customers to transfer the software from one computer to another. This means customers can transfer Office 2013 to a different computer if their device fails or they get a new one. Previously, customers could only transfer their Office 2013 software to a new device if their PC failed under warranty.

While it's nice that Microsoft ended up listening to their customers, some folks are noting that these sneaky kinds of licensing attempts are nothing new for the company.

By the way, if all this seems familiar, it’s not your imagination. Microsoft tried a similar tactic with Windows Vista in October 2006. The original license agreement imposed a new limit of one transfer on retail copies of Windows. At the time, I called it “a sneaky change in Windows licensing terms.” After a similar outcry from Microsoft customers (a Microsoft executive acknowledged having received "lots of e-mail and other feedback" on this issue), Microsoft rolled back the changes and restored the original license terms less than a month later.

This trend should be a lesson to Microsoft, as well as other technology companies. If you want to get customers to adopt a certain product line you have, do it by making that product more valuable, rather than by reducing the value of a competing product.

Filed Under: backtracking, licenses, microsoft office
Companies: microsoft

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

VLC Multimedia Player Shows Changing Open Source License Is Hard, But Possible

from the easy,-it-isn't dept

Licenses lie at the heart of open source -- and many other kinds of "open" too. That's because they are used to define the rights of users, and to ensure those rights are passed on -- that the intellectual commons is not enclosed. Their central importance explains in part the flamewars that erupt periodically over which license is "best" -- many people have very strong feelings on the subject.

Those heated discussions are one reason why it's rare for an open source project to change its license -- usually it's just easier to stick with what you've got rather than provoke another argument over which new license should be adopted. But there's another major impediment to changing the licensing: the need to get absolutely everyone who has contributed code to agree formally.

That's not a problem when the code has been assigned by contributors to a single entity, often a software foundation, as happens with components of Richard Stallman's GNU (GNU's Not Unix) project. But the individual copyrights of perhaps the best-known open source code, that of the Linux kernel, have not been assigned in this way. That makes the prospect of contacting the thousands of people who have contributed code, and getting them to agree to a license change, not just hard, but probably impossible, not least because some of them may be dead. For this reason (and because Linus Torvalds doesn't want to change it anyway), Linux is likely to remain licensed under the GNU GPLv2 for the foreseeable future.

Another project where the copyright on code contributions has not been assigned to some central body is the popular multimedia player VLC. Since this is a major project with many hundreds of contributors, you might think it would be similarly impossible to get all of them to agree to a license change. And yet, against the odds, VLC has done just that, thanks to the tireless efforts of Jean-Baptiste Kempf. A fascinating post explains how he achieved this:

The initial license change for libVLC [VLC's main engine] was completed a few months later in December 2011. This involved about 150 developers and 80,000 lines of code. If a developer did not respond to the re-licensing request, that developer's code was rewritten.

But sorting out libVLC was easy compared to the rest of the code:

Then came the task of contacting the authors of the various plug-ins and modules, focusing on the playback modules first. This was a bit more challenging, involving some 300 developers and 300,000 lines of code. Kempf was kind enough to describe his methods for doing so in a few blog posts. He began with details of how to correctly compile the list of names and email addresses and the measures he took to appropriately narrow that list down to remove dupes, people who had already responded in the first relicensing phase, and so forth. His response rate for the initial emails was only 25%, with 25% bouncing and 50% not responding. This had to be frustrating but not entirely surprising. To deal with the remaining 75%, Kempf employed a variety of methods that could be described as stalking or resolutely resourceful, depending on your perspective; social media, the telephone directory, whois lookups, friends or co-workers, and showing up where they work were all fair game.

Impressive stuff, not least because Kempf did manage to get every single person to sign off in the end. Still, as the post quoted above goes on to note, you might think this is an extremely strong argument for using a contributor's assignment that licenses or assigns copyright to some central organization. But VideoLAN, the non-profit group that produces VLC, is located in France, which recognizes the creator's "moral rights", introducing a further complication:

Moral rights include the right of attribution, integrity, disclosure and withdrawal, and are based on the rationale that there exists a personal and inalienable bond between authors and their work. As such, moral rights cannot be assigned or waived.

That means even in the presence of an assignment, authors would still need to give their permission for a license change that would be valid in any country that recognizes moral rights.

The VLC experience confirms that changing a license is not something to be undertaken lightly. But it also shows that with perseverance it can be done -- once the flamewars have subsided, of course.

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Filed Under: licenses, open source, vlc

Broken Copyright: Jonathan Coulton Is Actually Infringing Copyright, But Glee Is Not

from the how-messed-up-is-our-system dept

Want to know just how messed up our copyright system is, and just how out of sync it is with the way people feel about copyright and what makes sense? Just know this: between Jonathan Coulton and Fox, concerning the dispute over Fox's Glee using Coulton's rendition of Baby Got Back on their show -- you could make an argument that Coulton may have actually exposed himself to more copyright infringement problems than Fox did.

Allow me to explain. When the whole thing first broke, we thought that Coulton took the right approach in basically just telling his fans about it. Then, when we heard that he was exploring legal issues with his lawyers, that actually seemed like the wrong approach to take, even if he was upset about things. According to various reports, right before the show aired, Fox finally reached out to him and explained that what they did was perfectly legal (probably true) and that Coulton should be happy for the exposure. Coulton's response was quite reasonable -- asking if that meant Fox would be crediting him. Since the answer was no, the promise of exposure rings a bit hollow.

That said, it's not entirely hollow -- because of Coulton's ability to whip up (completely reasonable) righteous indignation about this from his fans via social media. As he told Mashable in the link above:

"They were right. I did get exposure, but it didn't come from anything they did. It was sympathetic outrage on Twitter, and bloggers and journalists talking about how crazy it was."

[....] "Sometimes I forget that Twitter is something beyond just being snarky at the Oscars. All of a sudden something happens and you remember that this is an amazing, powerful tool." Coulton says. "My fans have a keen sense of justice, and this idea that we should be attributed for our work. People who are of the Internet realize that attribution is what we trade on."

And, of course, he's taken it a step further as well, re-releasing his original song on iTunes, but calling it Baby Got Back (In the Style of Glee) and promising to donate the proceeds to two charities associated with Glee: The VH1 Save the Music Foundation and the It Gets Better Project. Song sales are doing well, with Coulton's version climbing the charts, while the official Glee version of the song is riddled with one star reviews from his supportive fans (even though he's not encouraging people to do this) and is nowhere to be found on the charts.

Still, what strikes me as perhaps most interesting about all of this is that as you explore the legal issues, it is entirely possible to come out with an argument that says that if anyone is infringing on copyright here... it's Jonathan Coulton. Let me be clear on this: I am not saying that anyone has directly accused him of this, nor am I suggesting (in any way) that he should be accused of this. I'm just showing how misaligned the law is with what most people think of as a sensible regime today. So why might Coulton be in trouble? As he's noted repeatedly, he paid the compulsory license to cover the song via the Harry Fox Agency. Doing so means that he agreed (pdf) to abide by Section 115 of the Copyright Act.

What's that? Well, check it out here. Here's the relevant part for our discussion:

A compulsory license includes the privilege of making a musical arrangement of the work to the extent necessary to conform it to the style or manner of interpretation of the performance involved, but the arrangement shall not change the basic melody or fundamental character of the work, and shall not be subject to protection as a derivative work under this title, except with the express consent of the copyright owner.

Previously, we and many others had suggested that the changes that what Coulton had made could possibly be protected as unique creative works. However, he more or less gave up that claim when he used the statutory license, rather than doing a direct deal with Sir Mix A Lot, or whoever else holds the rights on the song. That also means, however, that Coulton did not live up to Section 115 and his cover, in all likelihood, violates the original copyrights, because the license he got does not cover the very different arrangement and melody he created.

That is, by any normal measure, insane. But that's the law. This whole situation has (ridiculously) exposed Jonathan Coulton as a "pirate" and Fox as being perfectly within the law. And that just seems silly.

Filed Under: baby got back, copyright, covers, glee, jonathan coulton, licenses, sir mix a lot
Companies: fox, harry fox agency, news corp.

Jonathan Coulton Publicly Shames Fox For Copying His Arrangement In Glee

from the social-mores dept

We've talked about Jonathan Coulton and his embrace of the internet and new business models plenty on Techdirt -- as well as his nuanced arguments concerning copyright infringement. He's not "pro-piracy," but recognizes that the overall growth of the internet that has resulted in more infringement has also created tremendously valuable tools and services that made his music career possible. Thus, recognizing that the two things go hand in hand, he notes that it's better in the long run. So what does he do when someone infringes on his rights? Well, he goes public.

As some have noted, Coulton has called out Fox for apparently copying his arrangement of Sir Mix-a-Lot's "Baby Got Back" in the TV show Glee. You can see his version here: And then there's the Glee version, which is quite similar, and includes a few of Coulton's own additions: Yes, his is a cover song, but he introduced some variations that appear to be directly copied in Glee. Is there a potential copyright claim here? Well, that depends -- and the copyright law here is complex. You can cover a song by paying compulsory license fees, and Fox likely did that to whoever holds the copyright on the original. But they copied specific changes (and possibly the music) that Coulton added, which could potentially be covered by his own copyright (of course, whether or not he registered them could also impact what he could do about it). And let's not even get into the issue of things like sync licenses for video, and the (still open) question of whether or not Glee actually used part of Coulton's own recording.

In the end, though, almost none of that probably matters. Because Coulton seems unlikely (we hope) to go legal here. Instead, he's just going with the public shame route -- with a simple tweet about the situation, which has set off "the internet" to help him make his case and embarrass Fox and Glee.

Internet sleuths immediately went to work on the question, creating side-by-side comparisons of the audio (which are very convincing) and even unearthing an official Fox version of the as-yet-unreleased single in the Swedish iTunes store. While the track is not currently available in the American store, gaming blog Kotaku claims that it “was available earlier and was pulled by Fox.” Despite calls from Twitter and multiple media organizations, the network has yet to make a statement as of this afternoon, but, all things considered, it’s looking pretty bad for Glee.

Of course, as a public storm of support rises behind Coulton, it seems likely that Fox/Glee producers will step up, apologize and probably cut Coulton a check of some sort. All of that seems a lot more efficient -- and it didn't require copyright law at all. Just a bit of public shaming for a bad actor. Of course, just imagine if the situation had been reversed, and Coulton was caught making use of a News Corp.-owned song. In that case, you'd have to imagine that the cease and desist letters and lawyers would have popped up quite quickly....

Filed Under: copying, cover songs, glee, jonathan coulton, licenses, permission, public shaming
Companies: fox

Now That Amazon Is Offering Auto-Rip Of CDs You Bought, Will It Do The Same For Books?

from the why-not? dept

Times change. Amazon is making some news by launching an auto-rip service that puts MP3 copies of songs into your Amazon cloud storage when you buy CDs. Some have been comparing this to the old MP3.com "Beam It!" service that got MP3.com sued out of existence a while back, but this is quite different on one key dimension: Amazon has licensing deals with the major labels which specifically allow this (which also means it doesn't work on all CDs).

Still, this move does raise some interesting question. For example: why not do this for books too? Why not have it so that when you buy a physical book, a digital copy automatically shows up on your Kindle? Of course, the real answer isn't difficult to glean: because the publishers have no interest at all in doing this (yet). I expect they'll do it eventually, but the publishers are still going through the same denial phase that many in the recording business went through earlier, and so it's probably still going to be at least a year before some publisher comes around to such a deal (and then it will be announced as "big news" when it happens).

Another interesting question is whether or not the "AutoRip" service leads to more resells of CDs soon after people buy them. As Sherwin Siy notes, it may not actually be different than buying a CD and ripping it yourself, but the automated nature of it may make it easier to simply pass on the CD. Of course, does that mean you're legally supposed to delete the MP3s too? I'm sure the industry would argue that's the case, but it might not be that clear cut.

In the end, this really is the kind of thing that the recording industry should have embraced a decade ago, so welcome to the party (a bit late).

Filed Under: autorip, books, digital copies, licenses, music
Companies: amazon

Why Does Copyright Last 70 Years After Death... But Licenses Expire At Death?

from the questions-to-ponder dept

Last week, we were among the group of folks who wrote about some articles highlighting the fact that, when you die, your library of digital goods likely dies with you, thanks to ridiculous licensing terms and DRM (and ignoring unauthorized copies). Over the weekend, there was a silly -- and quickly proven bogus -- story claiming that Bruce Willis was so incensed by this that he was going to file a lawsuit on the legality of passing down his digital content to his children. While that story appears to have been a work of fiction by the UK's Daily Mail, it did lead to a great observation by Kevin Marks who compared the lifetime of copyright to the lifetime of the licenses you get:

How is it that copyright lasts 70 years after death, but licenses expire at death?

The simplest answer is that the big legacy entertainment industry players have lobbyists. And their customers do not. So we've created a system that massively favors one side over the public -- despite the fact that, if we believe the US Constitution, copyright is supposed to be for the benefit of the public.

Filed Under: copyright, death, licenses, lobbyists