Law and Content

New media, online communities, and content distribution

[lawandcontent-blog]

TechCrunch reported on how NBC pulled most of the copies of its famed news anchors pondering the meaning of the Internet in 1994.  What TechCrunch missed (remarkably) is that NBC pulled these videos from the web using the Digital Millennium Copyright Act, despite the fact that this kind of commentary is clearly within Fair Use bounds, and the posters followed industry best practices for Fair Use compliance by posting a video of a television screen displaying the content, rather than posting the content directly.

[lawandcontent-blog]

I'm listed in Tumblweeds under law, copyright, technology

I'm listed in Tumblweeds, a user-generated community directory that rates Tumblr bloggers by their number of followers. Find me listed in #law, #copyright, #technology

[ellegolightly]

First client of clinic (KeepOnSinging)

[lawandcontent-blog]

Remembering working with clients in my clinic, I had much the same experience.  The trick is to find creative ways to get your clients vested in their cases by proving to them that the outcomes are not pre-determined; nor is adjudication or judgment a fact of life.

What I remember is that the lessons learned from the clinic were very rarely those that could be learned from anything other than working with clients; and they really weren't about law, at all.  My clinic was in juvenile defense (so, very different from the subject of this blog), but I came to see the work that was necessary to bridge the gap between the way an attorney thinks about a case and the way a client thinks about it.

Then again, if your client misses the first meeting, it can be somewhat difficult to even find that point of commonality or understanding.

keeponsinging:

Didn’t show up.  Forgot about our meeting.  Used the incredibly sweet Portuguese interpreter to explain to her that these meetings are important and we needed to reschedule.  She wanted to do Wednesday and flipped out when she realized I wouldn’t be able to do that.

This semester is gonna be FUN.

[phonkmeister]

[lawandcontent-blog]

phonkmeister:

Via Giavasan.

[lawandcontent-blog]

Three Ways to Tweet Your Way to Copyright Infringement in 140 Characters

According to a recent Yahoo Finance article, in November, 2010 Twitter received 300 requests under the Digital Millennium Copyright Act (DMCA) to take down tweets.  This is striking because tweets are necessarily 140 characters in length at most.  Although there is no quantity threshold expressly stated in the United States Fair Use defense, that length is well within most traditional fair use limits.

Nevertheless, Twitter complied with the requests.  Why?  Apparently it gets more complicated than mere length.  Many of the requests cited tweets that linked to copyrighted materials made available without a license.

Lesson learned.  Here are some ways that you can get into trouble with copyright infringement on Twitter:

Thinking Tweets are Too Short for Copyright.  Perhaps a 140 character tweet can fall outside of fair use, notwithstanding its brevity, given its context within Twitter.

Forgetting the Four Fair Use Factors.  It is important to remember that the amount of the copyrighted work used is just one of four factors used to determine whether a use falls within the fair use defense; it is not necessarily the controlling factor.

Linking to Infringing Content.  Linking to infringing content could be enough to trigger Twitter to comply with a DMCA takedown request.

Notwithstanding, it is important to keep in mind that when Twitter complies with a DMCA takedown notice, there is no adjudication that a copyright has, in fact, been infringed.  Rather, Twitter is merely covering itself.  The legal team must comply with the notice in order to avoid its own liability for infringement by allowing the tweet on its site.  If Twitter has any belief that it will be sued for leaving the tweet online, it acts in its own best interest by removing the post and putting itself in a legal safe harbor.

For an interesting online discussion among intellectual property lawyers on this subject, see Social Media for Lawyers on Martindale.

[lawandcontent-blog]

«In order to further the goal of career training and education and encourage innovation in the development of new learning materials, as a condition of the receipt of a Trade Adjustment Assistance Community College and Career Training Grant (“Grant”), the Grantee will be required to license to the public (not including the Federal Government) all work created with the support of the grant (“Work”) under a Creative Commons Attribution 3.0 License (“License”). This License allows subsequent users to copy, distribute, transmit and adapt the copyrighted work and requires such users to attribute the work in the manner specified by the Grantee. Notice of the License shall be affixed to the Work.»

The U.S. Department of Labor and Department of Education commit $2 billion to create open educational resources for community colleges and career training, and require that the output of grant-funded programs be licensed to the public under a Creative Commons license, according to Creative Commons.

It is progressive that the United States wants the work that it funds to be licensed to the public under Creative Commons.  This actually makes sense, as all of the work created by this grant money will be the result of an application of taxpayer money.

However, it is quite interesting, at least to this writer, that a policy like this comes on the heals of headlines like the first Joint Strategic Plan for Intellectual Property Enforcement—which was largely focused on tightening copyright protection—and U.S. pressuring in negotiations of the Anti-Counterfeiting Trade Agreement for the rest of the world to adhere to anti-circumvention measures provided by the Digital Millennium Copyright Act.

What underlying philosophies are most important to America when protecting IP?  Is it the absolute monetization of the fruits of ideas, at the expense of the free flow of information, if necessary, even if the public finances the protections necessary for this level of monetization?  That's what these latter items would suggest?  Or is it now free access to information—arguably a more virtuous goal, as well as a more constitutional one?

[lawandcontent-blog]

Two very interesting quotes in this otherwise too-long video interview with Jumptap's Chief Marketing Officer, Paran Jahor:

When a person adopts mobile Internet, his "internet surfing behavior changes.  It goes from being 90 percent PC based . . . and 10 percent mobile devices to now more 50-50."

"The integration of mobile devices and television is going to happen if not late this year, early next year, with the new launch of Apple TV, which is imminent, and with Android now powering new TVs coming out."

[lawandcontent-blog]

The Future of Trademark Searches: Easy, Free, Actual Use-In-Commerce Searches

Although it is still standard practice in the Trademark industry to search at the USPTO to get at trademark registrations, Cambridge-based United Domains is now providing a use-in-commerce search through its service, Namecheck.com.

According to Bostinnovation.com:

Namecheck looks up your brand availability across twelve different social media outlets including Facebook, Twitter, Flickr, and LinkedIn. Aside from these prominent social media services, Namecheck also searches WordPress, Blogger, Del.icio.us, MySpace, Digg, Wikipedia, Last.fm, and even eBay.

This means businesses can get insight into whether there has been use in commerce, or even intent to use—at least across a few Internet-based metrics.  Without use or intent to use, there can be no trademark protection.

But this now leaves me with the question: is, say, registration of a twitter handle, without more, considered to be actual use in commerce?

[bhlpartners-blog]

[lawandcontent-blog]

bhlpartners:

Israeli Court Provides Insight Into Nuances of American-Based Fair Use Statute

An Israeli court found that taking pictures from Flickr licensed under Creative Commons and publishing them in a book violated the Copyright Act of 2007 in each and every picture separately.  The court also ruled on a Fair Use defense, finding that because the defendant did not attribute the images to the plaintiff, there was no possibility of a fair use defense.  Israel’s Fair Use defense, codified in the Copyright Act of 2007, is a near-verbatim Hebrew translation of America’s Fair Use Defense found in 17 U.S.C. s. 107.  In the words of Zohar Efroni:

The court further rejected the fair use defense briefly raised by defendant, and this is probably the most interesting aspect of the decision. A violation of the right of attribution (a classic moral right) pulled the rug from under any possible fair use protection. In other words, no fair use to violators of moral rights, which gives a very interesting twist to fair use law in Israel. The ruling implies that fair use is not all about economic interests. Fair use, (perhaps as in Fair Trade or Fair Game), also involves questions of ethical behavior.

Read more here.

[lawandcontent-blog]

I'm listed in Tumblweeds under law, copyright, technology

I'm listed in Tumblweeds, a user-generated community directory that rates Tumblr bloggers by their level of influence. Find me listed in #law, #copyright, #technology

[lawandcontent-blog]

Ten years ago this past weekend, Steve Jobs released iTunes.  In the ten years that passed, Apple has dominated the digital download industry.  Here's a video of his announcement of iTunes.  What's remarkable about this:

The number of things that Jobs had to explain in cold, hard detail that we now take for granted.

The focus on CD-R technology.  The explanation focused on "ripping" and "burning," which Jobs defined "for those over 30 [years old]."  Moreover, Apple did not release their digital downloads store until later on.

The number of competitors in the digital music player space, even though none had provided an outlet for legal, digital downloading.  Apple went up against Real Networks, Microsoft, and HP.

The fact that Jobs complained that existing products didn't allow encoding in MP3 (even though iTunes does not allow this).

The use of the B-52's Love Shack.

[lawandcontent-blog]

Twenty-four hours ago, Apple launched the Mac App Store, a software distribution mechanism modeled after the Apple App Store ("iPhone App Store").  As the store's own website boasts: "No more boxes, no more disks, no more time-consuming installation."  For those of us from the Windows world, it may seem brilliant.  After all, the iPhone App Store has been a huge success; it moved over a billion downloads between its launch on 10 July 2008 and 23 April 2009 -- just nine months.  And the Mac App Store moved 1 million apps in its first 24 hours.  But as those of us who have used Linux can attest, this model is nothing more than package management with a merchant account and the usual level of Apple glitz.  That combination may nevertheless prove to be the right melange.  With a player like Apple doing this, rather than, say, Synaptic and Ubuntu Linux, we may have just seen package management of commercial software make the jump to mainstream.

[lawandcontent-blog]

One of the most popular content management systems, Drupal, released version 7 yesterday.  After three years in development, this open-source project might have what it takes to advance the state of web publishing.  I admit I was skeptical, largely because Drupal 7 consistently ran further and further behind in development.  But, this video, narrated by Jeff Robbins of Lullabot, might have convinced me otherwise.

And if you need a little more convincing, yourself, check out this article from Christina Warren at Mashable.

[lawandcontent-blog]

«Another internet boom is brewing, and it’s backed by fast growing revenues and faster growing earnings than ever seen before by any sector of the economy.»

James Altucher, writing for the Wall Street Journal, on how (1) Facebook is worth 4x its recent Goldman Sachs valuation, and (2) even counting the 1990's, we've not yet seen a true Internet bubble.  It is one of the most valuable websites to consumers and advertisers, alike, and it is financially right where Google was pre-IPO.

[lawandcontent-blog]

In case you missed it, a review of Spotify, in the context of Steve Balmer's visit to Sweden's Royal Institute of Technology last week.  Of course, something as good as Spotify has to be held up in the quagmire that is the territoriality of copyright laws and licensing agreements.  It's not available in the United States.  As I've mentioned before, compartmentalizing copyright laws and licenses by country might make sense to for-profit producers, but it makes zero sense to consumers.  Why Americans can't use Spotify is something that only makes sense when set against a backdrop of esoteric and draconian, industry-sided excuses:

Unlike the US, every European country has a national association of sorts that manages all the rights to broadcast and stream music. In order to earn the privilege of offering digital tracks, a service like Spotify negotiates with these associations—not with individual record labels and copyright holders. 

Read the full story, at Wired.

[lawandcontent-blog]

«Never before has the human race truly integrated the collective wisdom of our now 7 billion person crowd, with mechanisms to allocate capital.  Yet 2 billion (or more) people already use the Internet, and usage penetration is increasing rapidly.»

Kevin Lawton, The Crowdfunding Revolution.  

An argument (and book) advocating for relaxation of accredited investor regulations to allow cash-for-equity crowdsourced funding! Very good points, even in the book excerpt alone, and a fascinating example based on the funding of the Statue of Liberty.

In an era that will require extraordinary innovation to monetize content, we will need funding ideas that help bring new business models into the market.  Journalism is an area that could uniquely attract crowdsourced angel investment because of the passion over the issue of monetization, and because of the importance people attribute to a functioning media in the context of democracy.

[lawandcontent-blog]

Ten Boston Tech Companies to Watch in 2011.  They mostly or all seem to have several things in common:  (1) they are all (except for one) in the web/IT space; (2) they are all (except for three) involved in social media; (3) they all have very big names behind them, on the finance side, the business side, or the technical side.  Many of them involved mobile.  One involves location-based services.  Read more, on the Boston Phoenix.