Copyfight

Apple Gets a Dock Patent

Posted by Alan Wexelblat — Thu, 09 Oct 2008 13:14:43 -0500

Apple was finally granted a patent, for which it first applied in 1999, on the user interface construction that has come to be called the "dock".

The patent calls it "a userbar" but Apple's own documentation calls it a dock (this image also comes from Apple's site) and that's the term it's generally come to be called. Including all the multitude of reimplementations of the concept. I'm aware of dock implementations for Windows and for Flash applications and there are probably others. Yahoo even has a "widget dock" (on which it has a patent).

Not everyone loves the dock, though. Ex-Apple human-interface guru Bruce Tognazzini published a column way back in 2001 harshing on the dock's (lack of) usability. Still, the widget remains fairly common in a lot of interfaces. The question is whether that'll still be true after Apple decides what it wants to do with this patent.

Given the early filing date it's not going to be trivial to find prior art if people want to challenge this patent. The amount of non-patent prior art cited is small, but there are an impressive number of related patents cited. (Including, to my great surprise, my own patent.) Scanning those it appears that Apple has at least touched on all the related work I can recall from back then.

Rowling Wins Against Lexicon

Posted by Alan Wexelblat — Wed, 08 Oct 2008 15:27:28 -0500

In a not-at-all-surprising decision, Judge Patterson has ruled to block publication of the print version of Steven Vander Ark's "Harry Potter Lexicon."

The judge's decision noted that the proposed Lexicon

copies distinctive original language from the Harry Potter works in excess of its otherwise legitimate purpose of creating a reference guide.

Some reports note that there may be an appeal of the decision, or the publisher may use the decision as a guideline for which material was objectionable and could be excised to result in a Lexicon that could be published and stand up under fair use scrutiny.

Royalties on Digital Tunes Stable Through 2012 - DRM in Doubt

Posted by Alan Wexelblat — Fri, 03 Oct 2008 15:52:51 -0500

I've been so busy with the mess on Wall St that I totally missed Apple's threat to close down iTunes if royalty rates went up. There were several proposals on the table, including one to lower fees, which are formally known as "mechanical royalty rates". Jacqui Cheng on ars has a nice summary of the various posturings that went into this.

So, in theory, everything stays the same through 2012. At least in the US. Things in Europe may be a bit more unsettled. According to a PCWorld story, Apple is facing a challenge to its use of DRM to encumber downloads in the first place. At the moment, this move only affects a small country (Norway) that isn't really significant to Apple's revenue. Even if they lose the current court case they could simply stop doing business there. The question is whether the rest of Europe get behind this idea.

If Apple gets a ruling it doesn't like that applies across the entire EU that could force some kind of change, with likely echos on this side of the pond. I don't really expect that, but also lost in Monday's news was the story about Wal Mart shutting down its own music download service.

The problem is that they didn't just take down the service for buying new music - they're shutting down the DRM servers. So if you bought music locked into Wal Mart's electronic box you are out of luck. You may be able to burn your tunes to a CD and then re-rip them, but probably only if you do it before October 9.

Cory makes the point emphatically when he points out that the current scenario is, roughly: buy DRM-encumbered music legally and get screwed; acquire illegal but unencumbered copies and life is good.

My guess is that if download services continue having these problems, Apple will have a lot to worry about before the next royalty rate review rolls 'round.

Orphan Works and Emphatic Words

Posted by Alan Wexelblat — Tue, 30 Sep 2008 13:22:06 -0500

Once again I'm finding myself trying to make sense of something and hoping others can help me out.

I got a pointer from a freelancer friend to a page posted by the Illustrator's Partnership of America. This page contains a harsh critique of The Orphan Works Act of 2008.

That name sounded familiar but I hadn't heard it recently, so I went back into the archives and found a Nate Anderson piece on ars, from back in April, that talked about this proposed legislation. Anderson does a good job of summarizing the problem that the bill is trying to solve - if you can't determine the copyright status of a work, what can you do with it? And if you do reuse it, what protection do you have from being submarined?

The idea in this bill is to set up a system of rules that an artist would need to follow; if those rules are followed and a legitimate copyright holder later emerges, the re-using artist can't be sued into oblivion. In effect we get a 'safe harbor' for innocent infringement. The re-user doesn't get free access - he still has to pay license fees to the late-emerging copyright holder. But he would be immunized from large punitive damages.

This sounds like a really good idea to me, and organizations I generally agree with, like Public Knowledge, have been working on the issue. PK's page on this topic has not been updated since May as of this writing, but their blog entry for today, written by Rashmi Rangnath, addresses the bill as it was just passed, including the improvements in the definition of "diligent search."

So, what is causing the Illustrator's Partnership to use such harsh language? They claim that the bill "goes far beyond current concepts of fair use" and "has a disproportionate impact on visual artists." They use further alarmist language about "forc[ing] artists to risk their lives' work" and they go on and on at some length. Are we sure Jack "Boston Strangler" Valenti isn't writing this stuff from beyond the grave?

Certainly some freelancers are feeling that this reaction is disproportionate. For example, Adam Hutter of the Fractured Atlas Blog characterizes the response as "panicked hand-wringing". He also points out that much of the reaction is factually inaccurate and provides links to the bills for people to read themselves.

Rangnath's blog entry also points out how some of the bill's language has changed in direct response to concerns that were expressed when the bill was first introduced. It's just not clear to me why these changes haven't averted the apocalyptic verbiage from some quarters.

Burn (DVD) to Hard Drive

Posted by Alan Wexelblat — Tue, 23 Sep 2008 12:46:08 -0500

I got a pointer to a forthcoming program from Real, to be called RealDVD, that is supposed to be the first legal way to rip DVDs to hard disk. It's kind of that, kind of not.

Of course, we've had DVD rippers forever; the problem is that they're technically a no-no, since they tend to strip off the copy protection. The question of whether or not this is a legal backup copy of software you legally own is best left for another time. RealDVD leaves the copy controls in place by, effectively, locking your copy to the hard drive onto which it was burned. All the bits from the DVD platter are transferred, once, and no further. At 5G+ per burned copy it's still pretty huge and even with the plummeting prices of large thumb drives I can't see a whole lot of value here.

PC World previewed the program as well and didn't come away much more impressed than I.

Politics and Song Rights

Posted by Alan Wexelblat — Mon, 22 Sep 2008 13:14:23 -0500

This isn't another political song remix, or even a political song parody. This is about the use of (usually American pop) songs in political ads and campaign appearances by candidates for a political party. In this case, McCain for the Republicans.

First off, we have the candidate's use of the song "Barracuda" by the band Heart, even though the band has asked them to stop. Sorry girls, that's what you get for entrusting your license rights to a blind agency like ASCAP. All the McCain camp has to do is pay the fees and away they go, right?

Well, yes, it'd be nice if they did pay the fees. According to TMZ they might not have cleared every song they used. I mean, what remixer goes through all that trouble, right?

And, really, what's an artist going to do, sue John McCain? Well, um, yes. Jackson Browne is suing McCain (and the Ohio Republican party, which apparently produced the ad in question) for using Browne's music without permission.

According to the LA Times blog post McCain has "a track record of using music without permission." This is all probably just a tempest in a teapot, but it's pretty funny from where I'm sitting.

Public Art Commentaries

Posted by Alan Wexelblat — Wed, 17 Sep 2008 09:22:28 -0500

Interesting AP piece on Geoffrey Raymond's art form: he paints a large picture of a public figure (e.g. Barack Obama or Lehman Brothers' ex-CEO Richard Fuld) then takes that picture out into the public and invites people to annotate it. Most people seem to sign their names or leave text comments. You can read his blog at "The Year of Magical Painting" and if you click through the portfolio link and ask Picasa for an enlarged image you can even read some of the comments.

Disney and the Copyright on Mickey Mouse

Posted by Alan Wexelblat — Mon, 15 Sep 2008 10:54:04 -0500

Disney is famous for getting copyright-term legislation passed that extends protection on old materials and thus protects their interest in Mickey Mouse, their iconic character. One of the first appearances (Wikipedia claims it's the third appearance) of this character is in the cartoon short Steamboat Willy. This short has been at the center of much of the debate around copyright on the character.

Recent work suggests that, in fact, the character in Steamboat Willie is not copyrighted any longer. If that's so, Mickey Mouse as he's presently constructed is probably a too-close derivative work to be claimed under separate copyright and thus the mouse may be out.

In a recent PATNEWS email letter, Greg Aharonian reviewed some of the scholarship around this issue. (This summary reprinted from PATNEWS with Aharonian's permission.) Start with a popular-press story from late August by Joseph Menn in the LA Times. In this story, Menn traces the value of Mickey Mouse to Disney and some of the corporation's fights to keep control of the character. Menn introduces us to "[t]hin, pale and bespectacled" Gregory S. Brown, a former Disney researcher who has unearthed some uncomfortable facts.

First, Brown found a court case in which Columbia convinced a judge that a failure to renew a particular copyright had let the image of the popular kid's ghost "Casper" fall into the public domain and thus they were free to use that image in their movie Ghostbusters. Then Brown found that Disney had made a similar lapse in protecting a 1933 Mickey Mouse short called "The Mad Doctor." If like follows like, then the images (cels) from that short should be in the public domain and he could make some money selling copies of the cels. Of course, you can see where this ends up: Disney sues, Brown loses to the tune of half a million dollars, case closed.

Except, maybe not. In a move that was too late to save his own case Brown introduced evidence from a 1993 rerelease of "Steamboat Willie." In that release, there were three parties named as possible owners of the Mickey Mouse character, a confusion that could nullify copyrights. Don't ask me to explain it - even Aharonian, an IP lawyer, calls this bit of law "arcane rules". Menn's article quotes a treatise called Nimmer on Copyright as saying that "a copyright is void if multiple names create uncertainty." Three names? Uncertainty! And thus voided copyright.

Or so conclude a couple of people who've looked at the issue. One, an ASU law student, posted a paper on the topic in 1999. Here is her punchline:

Disney published its common law protected expression without the proper copyright notice attached to the films and on the club materials. The statute of limitations to rectify that omission has long since elapsed, as has the statute of limitations for Disney to file any infringement claims based on that omission. As a result of its omissions and inaction, Disney forfeited its copyright claims to Mickey Mouse. Mickey has fallen into the public domain where all are free to copy and enjoy him.

Of course, here "free" means "anyone with the resources to defend this claim against Disney's army of lawyers."

Likewise a Georgetown University law student, Douglas Hedenkamp, agreed and published his review first online and then later in an article in the 2003 edition of the Virginia Sports and Entertainment Law Journal. His conclusion is similar:

Ultimately, if all the material incorporated into the films published without notice is in the public domain, this means that the character Mickey Mouse is himself public domain material. Mickey would still be protected by the copyrights in his other films and products, but those copyrights would only extend to the new matter that is original to them. [FN161] The aspects of Mickey's image and character that were derived from the original public domain films cannot be protected by virtue of their inclusion in new works; this is true under both the 1909 Act and the Current Act. [FN162] This means that the public is free to exercise all of the rights that the Copyright Act would otherwise reserve to the holder of a valid copyright. [FN163] This includes the rights to copy, display and distribute the films, and to make, display and distribute derivative works based on those films and the Mickey Mouse character. [FN164]

So, what happens now? At the moment all this is so much theorizing. As noted, the judge in the original case never ruled on the validity of these challenges, only that they came too late to save Brown's business.

The challenge, as Aharonian puts it, is to find someone with deep enough pockets to put this to the test. If someone was to distribute material Disney claims is its copyrighted work (e.g. digital reproductions of early Mickey Mouse images) then Disney would no doubt sue to put that person out of business. And in court would possibly be required to defend its most valuable IP asset.

Will such a thing happen? Probably not. Although the publicity would be great, and there's a lot to be said for taking down the Mouse Empire, few people or organizations have the resources to make this kind of play, especially with the likely result being that even if they win they won't reap any benefits to themselves.

Them as as the gold still makes the rules.

Google Backs Up On Chrome EULA

Posted by Alan Wexelblat — Thu, 04 Sep 2008 09:16:11 -0500

Well, that didn't take long. Google has admitted that putting Clause 11 into its EULA was a mistake. Frankly, it's a cut-and-paste error as I had guessed. As reported in a number of places (see, for example, CNET). Google has pulled the unnecessary language.

It was never clear to me how Google planned to capture any of the customer's data from general use of Chrome in the first place. One thing that is pretty clear is that Google will store auto-suggest and search-box info, along with the originating IP address. I'm sure Google has its own business purposes for this, but to me it looks like a prime target for bad guys in black hats and bad guys with legal discovery motions, all of whom would love to get their hands on peoples' search histories.

Google, Chrome, and Copyright

Posted by Alan Wexelblat — Wed, 03 Sep 2008 09:41:08 -0500

I'm filing this under "IP Abuse" because I'm starting to think Chrome, Google's new wonder-browser, is a tool for (potential) copyright abuse. I was first tipped to this by Edward Champion, who blogs under the title "Reluctant Habits." In a post dated September 3, he picks apart the Chrome EULA and does not like what he sees.

In essence, Google has applied the same EULA that it uses for Gmail to everything you put into the Chrome browser. What, you never read the gmail EULA? You do realize it gives Google copyrights in your email, right? Yeah, it does.

Anyway, here's the relevant clause from the Chrome EULA:

11.1 You retain copyright and any other rights you already hold in Content which you submit, post or display on or through, the Services. By submitting, posting or displaying the content you give Google a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any Content which you submit, post or display on or through, the Services. This license is for the sole purpose of enabling Google to display, distribute and promote the Services and may be revoked for certain Services as defined in the Additional Terms of those Services.

So, technically, you still keep the copyrights for things you create in the Chrome browser - like, say, blog entries. But you give up to Google the right to redistribute that content, including using it for commercial purposes.

That's potentially very bad. Should Google ever choose to make use of those rights it could cause problems ranging from simple embarrassment to loss of serious value. For example, I work at a company that makes Web-based tools for securities traders. If someone runs our tools in a Chrome browser, does that mean Google owns (or thinks it has any rights to) my customers' financial data? Should I be telling my customers not to run Chrome? Does this principle apply to anyone who ever does any home banking in the Chrome browser?

This condition seems completely unnecessary for a browser. I can't find any similar language in the Firefox EULA. The Internet Explorer EULA has language some people object to in terms of disabling and potential interference, but it doesn't seem to contain any terms claiming ownership of content. WTF, Google?

More Free (Online) Books

Posted by Alan Wexelblat — Wed, 27 Aug 2008 15:05:14 -0500

Linked to me by a friend: 25 Places to Read Free Books Online. It's not a comprehensive list by any means; for example, they left off Baen's Free Library, which is an excellent SF resource. That said, I think it's excellent someone can compile a list of 25 such places, referencing many thousands of titles.

In Which Our Hero TriesTo Comprehend EU Copyright Issues

Posted by Alan Wexelblat — Thu, 21 Aug 2008 14:29:53 -0500

OK, I'm in need of help here. Have I got this right?

I got an interesting pointer from a European Copyfight reader indicating that I should take a look at the growing controversy over the European Parliament's proposed new telecoms package. As far as I can tell the source of this controversy is here: http://www.europarl.europa.eu/eplive/expert/shotlist_page/20080708SHL33636/default_en.htm

This is a set of innocuous-sounding proposals to "co-ordinate" and "harmonise" radio spectrum use. It contains high-minded phrases like "safeguard media pluralism." It proposes setting up some kind of overarching governing body (Body of European Regulators in Telecommunications (BERT)). National regulators would have to submit proposed regulations to BERT. Seems pretty simple. That's one side.

On the other side we have some pretty inflammatory language. "European Parliament rushes towards Soviet Internet" screams the not-for-profit FFII (Foundation for a Free Information Infrastructure).

The FFII claims to be "largely responsible for the rejection of the EU software patent directive in July 2005" and to speak for over 100,000 members. Their objection to the telecom package seems to revolve around a set of amendments that were (to use a US phrase) back-doored in at the last minute. Apparently, these amendments would permit BERT "to define which are the authorised software applications for the internet." Which is to say, if your preferred app doesn't meet with regulatory approval then you can't run it, your ISP can't provide it to you?

That'd be... bad. But wait, there's more.

A site called "TELECOMTV" is conducting a related petition campaign against the package, on the grounds that among the 800 or so amendments to the package is language that would remove ISPs content-neutral immunity.

In particular, ISPs currently aren't required to monitor or police content or user identities on their networks, until something specific arises such as an allegation of copyright violation or other illegal activity. ISPs are "mere conduits" under current laws; the new amendments would remove that protection and force ISPs to track or even block individuals' access to the net.

TelecomTV is arguing for the removal of three specific amendments that would force ISPs to act as copyright police. They are also opposed to the spread of something like a "3 Strikes" rule ("Ripotse Graduee" in French) that would require ISPs to warn, discipline, and eventually sever users.

This doctrine is presently generating a lot of criticism in France where it was first proposed. Organizations such as "La Quadrature du Net" are calling for a moratorium on new rules related to digital telecoms rights & freedoms. The argument is that the MEP (Members of the European Parliament) didn't really understand what they were voting on, don't grok the net, and need to consider the implications of new regulations more fully before passing them.

I hope I've done this issue some measure of justice. An American point of view isn't necessarily going to translate some of these things well, even though most of the published materials are in English.

DMCA Takedowns Must Consider Fair Use

Posted by Alan Wexelblat — Thu, 21 Aug 2008 14:02:27 -0500

For years (and I mean YEARS - remember this report from 2005? Or Diebold's abuse of takedown notices from 2003?) copyfighters have been complaining about the abuse of the DMCA's takedown notice provisions.

In the ongoing saga of Universal Music versus a dancing baby, we have finally gotten a ruling stating that copyright holders must take fair use into account. Timothy Lee's write-up on the decision for ars technica goes through the claims Universal made and notes that the judge either simply ignored them or slapped them down. (Hint to Judge Jeremy Fogel: ignoring the Cartel's willful stupidity may reduce your blood pressure but isn't likely to get them to stop it.)

So what happens now? Well, Stephanie Lenz's suit against Universal is still alive at this point, but there's nothing stopping them from throwing more legal sand in the gears. In theory Lenz and her EFF lawyers can now begin discovery for their case. We'll see how far that goes.

EFF posted a PDF of the decision: http://www.eff.org/files/filenode/lenz_v_universal/lenzorder082008.pdf

A CBLDF Benefit Mashup Thu Aug 21, 7:30P

Posted by Alan Wexelblat — Tue, 19 Aug 2008 13:33:31 -0500

Cory Doctorow and DJ Spooky on stage together in NYC to benefit the CBLDF.
Details here: http://www.cbldf.org/pr/archives/000367.shtml

Two very interesting and thoughtful people. Benefiting a great charity. What more could you ask? (except to be in NYC this Thursday night)

An End To A 'Reprieve' - Bye Bye Web Radio?

Posted by Alan Wexelblat — Mon, 11 Aug 2008 08:17:24 -0500

A little over a year ago I was writing about negotiations between SoundExchange and Web streamcasters. The issue was a set of exorbitant new fees authorized by the US Copyright office. Back then it appeared that Congress might even pass some kind of legislation. In the glare of scrutiny and public outcry, the Cartel backed down, a little. Web radio didn't die.

But it did ingest a poison - a slow-acting set of fees and restrictions that may yet kill the nascent industry. According to Peter Whoriskey's story in this weekend's Washington Post Pandora may have to shut down due to the fees.

Pandora is wildly popular by Internet standards: over 1 million online customers, a top-10 app for iPhone, and adding 40,000 new customers/day. With numbers like that, why would the business shutter? Well, according to the story, 70% of the anticipated USD 25 million all those customers generate will go to fees. The company is losing money even as it grows, when it should have gone revenue-positive next year.

Last year it was Markey who tried to broker a deal. This year the Congressional go-between seems to be Berman (D-CA) but he's frustrated to the point of pulling the plug. Regardless of individual Congresscritters' frustrations, nothing seems to be in the works to fix the fundamental inequalities that force Web casters to pay rates more than double that of satellite radio. Sat radio rates are based on percentage-of-revenue, a metric that Web radio has asked for repeatedly and never gotten; Web radio pays per-song. Traditional radio, of course, still pays no performance royalties.

Oddly, the Pandora blog has nothing about this; last year Westergren used the blog as a hell-raising tool.