As discussed on Tech News Today 443:

YouTube Identifies Birdsong As Copyrighted Music

Posted by timothy on Sunday February 26, @04:43PM
from the estate-of-john-cage-winces-with-envy dept.

(h/t Peter Surda)

The video is here (and below); a discussion thread is here. In the discussion, according to a friend, “people bring up
different examples of copyright (ab)use on YouTube.” However, as I responded:

I don’t think it’s abuse of the system. I don’t know what copyright abuse is. I don’t think copyright abuse is really possible. All these things are natural outcomes of having a copyright system.

From NBCSports: more trademark insanity (for more, see The Patent, Copyright, Trademark, and Trade Secret Horror Files). (h/t Skip Oliva)

Which is why NBA legend and current Bobcats owner Jordan — along with — Nike has a team of lawyers that protect that brand. And they have turned their guns on a Chinese firm, Qiaodan, and sued the company that manufactures sports apparel and shoes.

You don’t know that name but that is the nickname Jordan has gone by in China since he first came to popularity nearly three decades ago. This is a clear attempt to profit off his name.

In a statement released through his spokeswoman, Jordan says he’s worked hard to establish his name and calls the issue “deeply disappointing to see a company build a business off my Chinese name without my permission, use the number 23 and even attempt to use the names of my children.”

Read more>>

Alex Tabarrok has a good post up arguing that patent law should provide an independent invention defense (and he cites my post Common Misconceptions about Plagiarism and Patents: A Call for an Independent Inventor Defense). Some of the commentators are right that the recently enacted AIA does now provide a broader prior user right than before, which goes some way to providing a type of independent invention defense, but not far enough (see my posts The American Invents Act and Patent Reform: The Good, the Meh, and the Ugly and Prior User Rights and Patent Reform). Tabarrok is right that there should be an independent inventor defense, but still seems to accept the confused idea that there is something wrong with imitation:

Independent invention should be a defense in a patent infringement lawsuit. An independent invention defense would allow Kelly to exclude imitators but would prevent Kelly from excluding an independent inventor such as Pat.

Imitation and emulation are what market competition is about. There is nothing wrong with competition and imitation, despite protests of IP advocates, who really have a problem with “unbridled competition.”

Tabarrok also cites a couple of useful papers: Samson Vermont’s 2006 paper Independent Invention as a Defense to Patent Infringement, and Christopher Anthony Cotropia and Mark A. Lemley’s paper “Copying in Patent Law,” which shows that in most patent lawsuits, copying is not even alleged by the plaintiff.

Defending Independent Invention

by Alex Tabarrok on February 23, 2012 at 7:35 am in Economics, Law | Permalink

In the minds of the public someone who infringes a patent is like a plagiarist or a thief–the infringer has copied someone else’s work or, even worse, stolen their intellectual property. In reality, patent infringement has very little to do with copying or theft. Here’s how I described what is probably closer to the paradigmatic case of patent infringement in Launching the Innovation Renaissance:

Two inventors, Kelly and Pat, work independently, neither aware of the other’s existence. Kelly patents first. Under the present law, if Pat wants to sell or even use his own invention, he must pay Kelly a license fee (!) even though Pat’s idea came from his own head and no other.

If independent invention were uncommon this type of case wouldn’t be important but independent invention is very common. Classic cases include Newton and Leibniz with the calculus, Alexander Graham Bell, Elisha Gray and Johann Philipp Reis with the telephone, Ohain, Campini, and Whittle with the jet engine and so on. And if independent invention  is common with great discoveries and inventions then it is surely much more common with ordinary innovations. As a result, it’s not surprising that most patent cases don’t even allege copying.

Independent invention should be a defense in a patent infringement lawsuit. An independent invention defense would allow Kelly to exclude imitators but would prevent Kelly from excluding an independent inventor such as Pat.

Inventors should not have to pay to use their own ideas! An independent invention defense is not only just, it also has good economic properties. An independent invention would create more competition. On the one hand, this does reduce the “pot of gold” incentive to create new ideas, the winner of a patent race might have to sell as a duopolist rather than a monopolist.  In this case, however, there are several reasons why we wouldn’t expect the number of ideas to fall and innovation could even rise.

First, firms today are often surprised to find that they are being sued for patent infringement. An independent-inventor defense would give inventors greater security in their ideas, thus increasing the incentive to invest. In this age of cumulative innovation often what innovators want most is the security that they can build on what they have produced already. Lawsuits and associated transaction costs would also be reduced.

Second, the type of inventions that are most likely to be independently invented are those with high value relative to their cost. Thus, an independent-invention defense would automatically tend to offer smaller rewards to low-cost innovations and larger awards to more costly innovations, this is exactly the optimal rule discussed in my paper Patent Theory versus Patent Law (pdf) but unlike the system described in that paper it does not require anyone to examine an inventor’s costs.

The patent system is supposed to be about increasing the progress of science and the useful arts but to often it ends up cudgeling the very people it is meant to protect, the independent inventors.

Addendum: Joe Mullin has a good post on copying and patent as does libertarian patent attorney Stephan Kinsella. Samson Vermont, my colleague at GMU law, has a longer paper on the independent inventor defense that discusses details of implementation.

From PCMag.com:

EU Asks High Court to Decide if ACTA Infringes on Rights

• By Chloe Albanesius

The controversy surrounding the Anti-Counterfeiting Trade Agreement (ACTA) has prompted the European Commission to ask Europe’s highest court to assess whether the deal is incompatible with the fundamental rights and freedoms afforded to Europeans.

The commission wants the court to determine if ACTA infringes on rights like “freedom of expression and information or data protection and the right to property in case of intellectual property,” EU Commissioner Karel De Gucht said in a Wednesday statement.

He stressed, however, that “ACTA will not censor websites or shut them down; ACTA will not hinder freedom of the internet or freedom of speech.” But a judicial review will provide some clarity on these issues, De Gucht said.

Read more>>

I was a guest on HMS-TV tonight, 6:30-7:30 pm CST (Houston’s Public Affairs Public Access Live program), with host David Hutzelman. We discussed IP, SOPA, etc. We tried to find a local intelligent and civil pro-IP libertarian or Objectivist to debate me, but no luck (no surprise: There Are No Good Arguments for IP).

The video is available on YouTube here, and streamed below:

See Mike Masnick’s Techdirt post below about Pinterest and its potential copyright problems. Other services that copyright has damaged or destroyed or is now threatening: Napster;  Wikileaks; 3D-printing; Grooveshark, MegaUpload and other cloud  storage and file sharing services like Dropbox, YouSendit, YouTube, etc.

The Pointless Copyright Freakout Over Pinterest

from the same-old-song dept

I’ve been debating whether or not it’s worth doing this post for a few weeks now, but with so much sudden interest in Pinterest and how it fits in the copyright scheme of things, people keep asking “when,” not “if,” we were going to write about it, so we might as well tackle it. If you don’t know, Pinterest is an insanely popular social network of sorts, built around the concept of “pinning” images you like, creating collections of such images and sharing them with your friends. It’s been the buzz of Silicon Valley for quite some time, and hit the mainstream in a big way a few weeks ago. Lots of commentators like to point out that it’s widely used by women — because that’s apparently noteworthy in contrast to the typical internet buzzy services that get the usual “early adopters” who tend to be more of the male persuasion. Either way, it’s crazy popular. I first heard about it in the context of teenagers sharing “looks” — creating effective collages of images of clothing/style/accessories and sharing them with friends in a “wouldn’t this look nice” kind of way.

But, as Pinterest hit some sort of inflection point right around the Super Bowl (with the help of Facebook integration), a bunch of people started noticing that there were some significant copyright questions involved. After all, the basic way it works is you make use of images you find online and “pin” them into a collection. But if you don’t have the rights to use those images, is it infringement? Some are pretty sure that it violates the law in that it wasn’t clear it would really qualify for fair use — and there were also some questions about how thoroughly it complied with DMCA takedown requests. Either way, the issue began to explode with a ton of articles all discussing the copyright questions.

As this suddenly got so much more attention, Pinterest just rolled out a “nopin” meta tag, which allows website owners to basically block images from a site from being easily “pinned” to a Pinterest collection. Depending on who you listen to, this either answered all the copyright questions or merely represented a “small step” towards dealing with them. For angry photographers, I’d bet they’re going to claim the latter is more accurate, if they’ll even grant that much.

There’s also a separate, but related, issue concerning Pinterest’s terms of service that includes some boilerplate language that pretty much every online service includes and when someone reads them for the first time, they freak out about how Pinterest is claiming too many rights over the uploaded works. This is an exaggeration — and we’ve seen the same thing happen with TwitPic and others, where the terms are there to make sure you’re granting the site an effective license to display the works, and not as some nefarious plan to claim ownership of the works.

Either way, the community that’s been most vocal about Pinterest and how it’s something evil are photographers. While there are plenty of photographers who are quite reasonable on copyright issues, for some reason, it seems like photographers often can be the most extreme on copyright issues, and it’s no different here.

However, it seems like (as the music industry did with Napster, and now the movie industry has done with cyberlockers), they’re getting the wrong message out of what’s happening online: these services are opportunities, not threats. If you want to understand why, I recommend reading (thoroughly) a recent blog post by photographer Trey Ratcliff, who goes into great detail not just about how Pinterest has been really useful for him (including in driving revenue), but that photographers need to stop treating everything as a threat, and start looking at these things as opportunities. Again, you should read the whole thing, but here are a few useful snippets. Ratcliff points out that treating everything as a threat means that you spend all your time trying to angrily shut stuff down, rather than getting your work out there. But there are real advantages to getting your work out there (and he explains why it should be high res, and without watermarks, contrary to the standard way that many photographers do thumbnails with annoying watermarks):

Most people in the world are good people. If they find digital art they want to buy for a print or use in a commercial campaign, they will figure out a way to get you money. 99% of your traffic is truly “window-shoppers.” They will look at your goods, take note, enjoy them and move on. But 1% will want to make a personal or business transaction with you….

[….]

StuckInCustoms.com has healthy traffic that grows every year thanks to good old-fashioned word-of-mouth. We don’t advertise or buy links or any of that stuff. So I depend on the Internet and nice people like you to link back to the site and tell your friends that you find something unique and cool.

Last month, we had 714,143 Pageviews and 234,107 unique visitors. 15% of this traffic came from Pinterest. Amazing! If Pinterest didn’t exist (a reality some photographers would prefer), then our traffic would be 15% less. Choosing to switch-off innovation is a fool’s errand, especially in today’s world. It reminds me of the scene in Anthem where the council of candle-makers becomes rather upset at the invention of the light bulb.

[….]

Someone on Pinterest can make a board called “Feeling a bit blue,” and they can fill it with cool-colored melancholy photos. Isn’t this just another way of making a poem? If I built up this pinboard and sent it to a friend, it’s nothing but a visual poem in a new medium. It’s just as powerful, and, in many ways, more accessible.

Pinterest is simply another way (a newer, evolving way, mind you) for humans to communicate with one another. It is increasingly the job of digital artists to inspire, share and bring more beauty and communication into the world.

There really is a lot more there, and it’s worth reading the whole thing. Also, Ratcliff appears to be an absolutely awesome photographer, so I recommend checking out his work too.

Either way, his point is a strong one, and it’s really no different than what many people have made to reactionary folks in other parts of the content industry. You can spend all your time trying to kill innovation or stop people from doing what they want to do… or you can bask in the wonderment that people want to do stuff, encourage them to do so, and make it easier for them to help spread your works… all the while making it easy for them to support you. Ratcliff seems to be a perfect example of our discussion on the benefits of being open, human and awesome.

And, in the end, that’s the key point. Whether or not Pinterest is a copyright landmine is kind of besides the point. It’s a really fascinating innovation that is having massive (unprecedented) success in terms of users. Clearly, it’s tapped into a market by providing something that a very large number of people absolutely love. When that happens, there are always opportunities, and smart photographers should be focused on finding and embracing those opportunities.

As can be seen here. (h/t Skip Oliva)
022212 West

This reminds somewhat of the practice of lawyers sending cease-and-desist letters and then claiming copyright in them to stop them from being posted, as noted here:

• http://www.techdirt.com/articles/20071005/174623.shtml: “In an apparent attempt to avoid the Streisand Effect, lawyers sending threat letters sometimes claim that the recipient would violate the firm’s copyright by posting it online. This post is about Public Citizen’s response to one dumb threat letter and its decision to post the letter online despite the copyright claim.” It’s funny how popular it has become for lawyers to claim it’s illegal to post or even show anyone their cease-and-desist letters. Remember: just because a lawyer says so, it doesn’t mean it’s true. You can see Public Citizen’s response to the letter (pdf), which lays out a variety of reasons why the cease and desist is ridiculous (it’s yet another attempt to force criticism offline) and ends with a fantastic response to the claim that the original C&D is covered by copyright and cannot be posted online without additional charges: http://www.citizen.org/documents/directbuycd.pdf: sometimes such letters conclude: “Please be aware that this letter is copyrighted by our law firm, and you are not authorized to republish this in any manner. Use of this letter in a posting, in full or in part, will subject you to further legal causes of action.”
• Court Says You Can Copyright A Cease-And-Desist Letter, Techdirt (Jan. 25, 2008)

From Infojustice.org:

Trans-Pacific Partnership Proposes Copyright Suppression of Price Competition

February 21, 2012 By John Mitchell 4 Comments

Dissatisfied with the exclusive right to set the price at which copies of their works are first sold, copyright holders have been trying, for over 150 years, to bolster the resale prices at which copies of their works are re-sold, in order to protect them from the normal pressures of free market price competition. Since they no longer own the copies, they have tried extending the reach of their exclusive right to “distribute” copies to encompass copies they no longer own. For just as long, the courts and Congress have rebuffed those efforts. Today, however, the United States Trade Representative is negotiating with foreign countries to obligate Congress and the courts to give them that power, even as their latest in a series of efforts to extend the existing distribution right is pending before the Supreme Court.

When Mark Twain tried to prevent dealers in his books from offering discounts to retailers, he lost. Clemens v. Estes, 22 Fed. 899 (C.C.D. Mass. 1885). When the publisher of The Castaway tried to use its copyright to prevent Macy’s from reselling the books for less than a dollar, it lost. Bobbs-Merrill Co. v. Straus, 210 U.S. 339 (1908). The following year, Congress said “it would be most unwise to permit the copyright proprietor to exercise any control whatever over the article which is the subject of copyright after said proprietor has made the first sale.” H.R. Rep. No. 2222, 60th Cong., 2d Sess., at 28-29 (1909), and wrote that principle into law. Going beyond the judicially created “first sale” doctrine, Congress decreed that anyone in lawful possession of a copy was free to distribute it without the copyright owner’s permission, and established the copy/copyright dichotomy that ownership of “copyrights” is distinct from ownership of “copies,” such that ownership of one has no bearing on ownership of the other. (Section 41, Copyright Act of 1909.)  After courts wrestled with that a bit, and determined that Congress probably did not mean for it to apply, literally, to someone in lawful possession of a pirated copy, or to someone holding a copy in trust for someone else (see, e.g., Platt & Munk Co. v. Republic Graphics, Inc., 315 F.2d 847 (2d Cir. 1963)), the Copyright Act of 1976 clarified the statute, placing the copy/copyright dichotomy into the new Section 202, and explaining, in Section 109, that the “owner” of a copy, “lawfully made under this title,” is entitled to redistribute it without the consent of the copyright holder.

Read more>>

Related posts:

• Leveraging IP;
• Supreme Court lets ban on “gray market” imports stand
• McElroy: Ominous Copyright Ruling Stands

Update: see Copyright Continues to Crumble; Ebooks Libertated from DRM; Gatekeepers Quake; Even Harvard Can’t Afford Subscriptions To Academic Journals; Pushes For Open Access.

• Article

Mathematician Ingrid Daubechies is among nearly 6,000 scholars boycotting Elsevier journals. Image courtesy of Ingrid Daubechies, Duke.

Related Stories

• Mathematicians organize boycott of a publisher
• Kevin Smith on Why Boycott Elsevier?

Durham, NC – One of Duke’s most prominent scientists has joined a protest against a leading academic publisher, adding her name to a growing list on campus and at universities elsewhere.

Mathematician Ingrid Daubechies says she will no longer publish, referee or do editorial work for the Amsterdam-based academic publisher Elsevier. She joins biologists Laryssa Baldridge and Eric Butter, mathematician Mark Iwen, economist E. R. Weintraub and other Duke faculty members in publicly boycotting the publisher.

They and nearly 6,000 other scholars around the world seek to draw attention to what they consider Elsevier’s unfair business model and restrictions on the free exchange of information.

Read more>>

As I noted in Lithuanian Minister of Justice Condemns ACTA and Calls for Re-evaluation of IP, a friend of mine, Remigijus Šimašius, the  Minister of Justice for Lithuania and an Austro-libertarian (he authored a chapter in the book I edited, Property, Freedom, and Society: Essays in Honor of Hans-Hermann Hoppe), had previously criticized ACTA. Now he has two more posts on this topic:

• Apie ACTA – kodėl sprogimas būtent šiandien? (On ACTA. Why did it all explode now? — Google translate)
• Apie ACTA – kodėl sprogimas būtent šiandien? (Antroji dalis) (On ACTA. Why did it all explode now? Part Two — Google translate)

At my request, he sent me an English translation of his posts, which I append below. The language is not perfect since it was a quick translation, and the argumentation is  directed more to Lithuanian than to a US or international audience, but this is an important piece.

On ACTA. Why did it all explode now?
By Remigijus Simasius
(Translated from Lithuanian by Adomas Sliuzinskas and Eimantas Vaiciunas)

Part I

When Lithuania was reached by waves of global discussions and protests regarding ACTA, many found themselves asking “Why is it now, that this massive agitation is happening, and why is this document causing it?”

These questions become even more important when it turns out that this document doesn’t bring anything new to the current situation: most of the provisions have already been active in Lithuania and the most threatening ones use words can, not must.

Protests of February 11th might seem even stranger because protesters consisted of well educated youth, modern intellectuals and the bulk of protesters having read the document is a rare thing. Don’t they care about authors and inventors?

In haste, many start to marginalize these protests, equate them to the leftist Occupy Wall Street and similar movements, whose members don’t discern what’s theirs and what’s not, who don’t respect others’ work and property, in a word—pirates.

Protesters haven’t really decided on what are they basing their own statements against ACTA. Is it the threat of distinct provisions to the freedom of the internet or to freedom as a whole? Or is ACTA reflecting deeper problems and it is only an illustration of how we’re going the wrong way with protection of intellectual property?

Having been concerned with the topic of intellectual property for some time now, I have a few observations about the source of this sudden explosion.

First, ACTA have been kept secret for a long time and discussed only with the chosen ones. That is until Wikileaks leaked it. Making it public just a few months ago didn’t help much, as it looked more like a formality than a beginning of a real discussion.

Already taking part in conspiracy theories, ACTA lead many to believe that something is wrong, or that they’re plainly being fooled.

Second, ACTA succeeded attempts to push SOPA and PIPA in United States of America. These acts had designs of more radical steps in globally protecting author rights and patents.

I’m going to remind you that, being concerned with these acts, internet community mobilized so immensely, even Google actively campaigned against it, with numerous websites, Wikipedia among them, having a black-out strike for a day.

On one hand, rejection of SOPA and PIPA created a victorious spirit among opponents of these initiatives, and gaining a victory often motivates for another battle. On the other hand, many saw ACTA as the real Trojan horse, whereas SOPA and PIPA must have been only a smokescreen.

Third, ACTA is not a single, but another step in protecting intellectual property with new measures. Biggest measures do not necessarily overfill a cup—it overflows exactly when it has more than it can contain. In this case, ACTA may have been the last few drops that had to overflow and exhaust all patience.

The thing is, we have been hearing stories about protection of intellectual property crossing the line for over a decade. One time we hear about some scouts enjoying a wild-fire, playing a guitar, singing some pop songs and then having been punished for not having bought a licence for them. Another story tells us how a researcher has to ask copyright-holders for a permission to quote for a scientific article. Another tells us about photographer getting punished for publishing his own photos on the internet. And then digital cameras and phones are taxed to “compensate” authors.

To sum up, “You don’t hold the hearts of a people by suing their children”, as professor Lawrence Lessig once wrote.

So far I’ve briefly discussed the emotional and circumstantial causes, that lead to a global commotion on ACTA. But there are still causes that are systematic. Find out more about them in the next part of this article.

On ACTA. Why did it all explode now?—Part II

In the first part of this article I asked why ACTA caused such a public explosion. Obviously, there were more and bigger steps towards it. For example, Lithuanian law, “compensating” authors with money gathered by taxing mobile phones and cameras, coming in force in a few weeks time. I have written about correlating causes and last few steps toward exhaustion of patience and promised to dive deeper.

Be warned though, everything is more complex down there. This short article won’t fit all the arguments, counterarguments and answers. I am just explaining my view on other causes of the big bang. So…

Fourth, more and more people start to think that intellectual property (further – IP) protection laws are not to protect artists and inventors, but to finance big copyright industry. It is very convenient to manipulate authors and inventors, and it is done with great success. But certitude in the fact that authors, as well as progress, are benefiting from current situation in the system starts trembling, once one sees what part of these “compensations” reach authors, or the revenues of law firms specializing in IP laws. The same happens when big corporations are seen on a shopping spree for patents, not because of scientific advances or innovations, but to secure assets, or just for the sake of suing competitors. The same when departments of patent analyzing lawyers overgrow research departments in research centers. [continue reading…]

Last year I delivered the talk “Intellectual Property and Economic Development” at Mises University 2011. And it’s free online. Now some site “Tunesbaby,” the “Hit Video Network,” has a version of it up on its site, surrounded by annoying ads and distractions. I’m outraged that they stole my work! Outraged….! This is … hurting me…. somehow!

Wait a sec. No it’s not. Godspeed, Tunesbaby. Thanks for helping to promote my ideas.

By Cathleen Flahardy

February 21, 2012

Paramount Pictures Corp. has filed suit against the estate of Mario Puzo, author of the popular 1960s novel “The Godfather.”

With its suit, the film company hopes to block the publication of new sequel novels to “The Godfather.” Paramount claims it purchased the copyright to the original novel in 1969 and in its Feb. 17 complaint said it is trying to “protect the integrity and reputation of The Godfather trilogy.”

Read more>>

Related posts:

• Copyright Censorship versus Free Speech and Human Rights; Excessive Fines and the Eighth Amendment
• Reason: Copyright Should Last Half A Century
• Libraries: Prepare to burn foreign books, courtesy copyright law
• Atlas Hefts: The Sequel!;
• COICA: More Copyright-Backed Censorship on the Way?;
• The Patent, Copyright, Trademark, and Trade Secret Horror Files;
• Do Libraries Need Permission To Lend Out Ebooks?;
• Supreme Court lets ban on “gray market” imports stand