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antigua – sun, fun and… pirates?

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Probably only catching up on things as its been quite busy and alas this blog is unfortunately low on the list of priorities… Anyway, I was stunned to read in Variety that

The government of Antigua is likely to abrogate intellectual property treaties with the U.S. by the end of March and authorize wholesale copying of American movies, music and other “soft targets” if the Bush administration fails to respond to proposals for settling a trade dispute between the two counties, according to the lawyer representing the Caribbean island nation.

The history is quite interesting. Apparently Antigua has prevailed several times at the WTO in respect of US trade practices related to offshore gambling sites which are hosted in Antigua but the US has taken no action. After roughly five years of proceedings, apparently Antigua is now looking to this course of action as a retaliatory measure. The WTO has to some extent, blessed this course of action. From the article:

The most recent victory was in December, when the WTO ruled that Antigua could exact damages by ignoring IP agreements with the U.S. should a negotiated settlement fail.

Somewhat surprising but the ruling can be found at the WTO site (note – link is to a 74 page PDF) and awards Antigua:

6.1 For the reasons set out above, the Arbitrator determines that the annual level of nullification or impairment of benefits accuing to Antigua in this case is US$21 million and that Antigua has followed the principles and procedures of Article 22.3 of the DSU in determining that it is not practicable or effective to suspend concessions or other obligations under the GATS and that the circumstances were serious enough. Accordingly, the Arbitrator determines that Antigua may request authorization from the DSB, to suspend the obligations under the TRIPS Agreement mentioned in paragraph 5.6 above, at a level not exceeding US$21 million annually.

I’m surprised this hasn’t gained more prominence, since the implications could, needless to say, be huge, particularly given other trade disputes that the US has with the EU and others (and in which it has taken a similar course of action). I did not an article that mentioned that Slysoft, the company which broke Blu-Ray’s DRM system, is based in Antigua.

Then again I have been living (or rather working) under a rock lately so may just be late to tune in to this news.

web 2.0 principles

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Interesting news (by way of an alert from Winston & Strawn) on a series of principles agreed upon by various internet and media companies (though it seems primarily the latter). To wit:

Several of the world’s leading Internet and media companies today announced their joint support for a set of collaborative principles that enable the continued growth and development of user-generated
content online and respect the intellectual property of content owners.

The principles self stated goals are “(1) the elimination of infringing content on UGC Services, (2) the encouragement of uploads of wholly original and authorized user-generated audio and video content, (3) the accommodation of fair use of copyrighted content on UGC Services, and (4) the protection of legitimate interests of user privacy”, though the emphasis would appear primarily to be obligations on operators of services oriented toward user generated content to prevent the misuse of copyrighted materials.

As noted by the Winston article, the principles “…are not a legally binding agreement, and compliance with these principles by a user-generated content service provider does not preclude a copyright owner from filing a complaint for copyright infringement.”

It will be interesting to see the extent to which they’ll be adopted by the marketplace. I have a feeling it may not be all that popular due, in part, to the noteable absence of some of the more prominent user-generated content sites, such the 900 lb video sharing gorilla now under the auspices of the googleplex.

web 2.0 & the law

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Another story from  The Register communicating a warning from the EFF about the inherent legal risks of Web 2.0 stuff. The nub:

The Electronic Frontier Foundation (EFF) has given Web 2.0 media sharing start-ups some non-technical advice: run your ideas past a lawyer first to stay on the right side of copyright law.

Can’t argue with that. Continuing on:

“One of the big mistakes I see in this space is failure to engage legal counsel soon enough. Often these involve business issues – like how do you want users and employees to interact on the site,” staff attorney Fred von Lohman said.

The choice of whether to offer buzzy features like mash-ups or to profit from other people’s content on the server may also have a bearing on a company’s legal exposure. “Techies will tell you it [server-side computing] is about efficiencies, the reality is lawyers will tell you to think hard about it,” von Lohman said.

While you might think executives running sites that suck in other people’s content have most at risk, von Lohman pointed out that investors are also in the firing line. He cited EMI and Universal’s decision to drag Bertelsmann through the US courts over its $100m investment in the old Napster, which they claimed helped the P2P site infringe on their works.

So there you have it. Straight from the EFF.

a rose by any other name…

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or, a study on the idea/expression dichotomy in copyright law as illustrated through flatulent dolls. The interesting decision in JCW Investments v. Novelty, Inc. centers around how copyright can inhere in toy farting dolls:

Somewhat to our surprise, it turns out that there is a niche market for farting dolls, and it is quite lucrative. Tekky Toys, an Illinois corporation, designs and sells a whole line of them. Fred was just the beginning. Fred’s creators, Jamie Wirt and Geoff Bevington, began working on Fred in 1997, and had a finished doll in 1999. They applied for a copyright registration on Fred as a “plush toy with sound,” and received a certificate of copyright on February 5, 2001; later, they assigned the certificate to Tekky. In the meantime, Tekky sent out its first Fred dolls to distributors in 1999. By the time this case arose, in addition to Fred, Tekky’s line of farting plush toys had expanded to Pull My Finger® Frankie (Fred’s blonde, motorcycle-riding cousin), Santa, Freddy Jr., Count Fartula (purple, like the Count on Sesame Street), and Fat Bastard (character licensed from New Line Cinema’s“Austin Powers” movies), among others. By March 2004, Tekky had sold more than 400,000 farting dolls.

400,000! Anyway, on to the actual law part of it. Basically, another company, Novelty, came along and developed a similar doll and the court found them offside:

It is not the idea of a farting, crude man that is protected, but this particular embodiment of that concept. Novelty could have created another plush doll of a middle-aged farting man that would seem nothing like Fred. He could, for example, have a blond mullet and wear flannel, have a nose that is drawn on rather than protruding substantially from the rest of the head, be standing rather than ensconced in an arm-chair, and be wearing shorts rather than blue pants.

Well. Good to know that one can’t own the idea of a farting, crude man – only the particular expression of a farting, crude man.

There was of course also the trademark aspect to it:

The jury found Novelty liable for trademark infringement because Novelty used the words “Pull My Finger” to sell its farting Santa dolls, and this use infringed Novelty’s mark for those words as related to plush dolls.

There you have it. “Pull My Finger” is a trademark.

Fair Use and the DMCA

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An article in Wired News with the dramatic title of “Lawmakers Tout DMCA Killer” describes the most recent attempt to: (a) water down the protections afforded to content owners by the DMCA; (b) ensure the preservation of fair use rights on the part of users. As is usual, each side has its own rhetoric to describe what is happening, so in fairness I took the liberty of offering to readers of this blog the two alternative descriptions above. The nub:

The Boucher and Doolittle bill (.pdf), called the Fair Use Act of 2007, would free consumers to circumvent digital locks on media under six special circumstances.

Librarians would be allowed to bypass DRM technology to update or preserve their collections. Journalists, researchers and educators could do the same in pursuit of their work. Everyday consumers would get to “transmit work over a home or personal network” so long as movies, music and other personal media didn’t find their way on to the internet for distribution.

And then of course on the other side:

“The suggestion that fair use and technological innovation is endangered is ignoring reality,” said MPAA spokeswoman Gayle Osterberg. “This is addressing a problem that doesn’t exist.”

Osterberg pointed to a study the U.S. Copyright Office conducts every three years to determine whether fair use is being adversely affected. “The balance that Congress built into the DMCA is working.” The danger, Osterberg said, is in attempting to “enshrine exemptions” to copyright law.

To suggest that content owners have the right to be paid for their work is, for me, a  no-brainer. That being said, I wonder whether the DMCA and increasingly more complex and invasive DRM schemes will ultimately backfire – sure they protect the content, but they sure as heck are a pain in the ass – just my personal take on it. For example, I’d love to buy digital music, but having experienced the controls that iTunes imposes and suddenly having all my tracks disappear, I just don’t bother with it now. Not to mention the incredible hoops one needs to go through to display, say, Blu-ray on a computer – at least in its original, non-downgraded resolution – why bother with all of that at all?

I wonder whether this is, in a way, history repeating itself in a way. I am old enough to remember the early days of software protection – virtually every high-end game or application used fairly sophisticated techniques (like writing non-standard tracks on floppies in between standard tracks) in attempting to prevent piracy. Granted, these have never gone away altogether, particularly for super high end software that needs dongles and and the like, and of course recently there has been a resurgence in the levels of protection that have been layered on in Windows, but after the initial, almost universal lockdown of software long ago, there came a period where it seemed many (if not most) software developers just stopped using such measures.  At least that’s what seemed to happen. I’m not quite sure why, but I wonder if this same pattern will repeat with content rather than software. I suspect not. But hey, you never know.

In the meantime, off I go, reluctantly, in the cold, cold winter, to the nearest record shop to buy music the old fashioned way…


Belgian Court Slaps Google News

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The short story: a Belgian court has ruled that Google must remove headlines and links posted on its news site for which it did not obtain permission to post, based on copyright law.

Rather unfortunate, I think. Sure, there are cases where some links and even partial reproduction should be prohibited, but in the context of what Google was doing its difficult to see the harm. In fact, I’m a bit surprised that the content owner would have pursued the claim. Google’s take:

“We believe that Google News is entirely legal,” the company said in a statement. “We only ever show the headlines and a few snippets of text and small thumbnail images. If people want to read the entire story they have to click through to the newspaper’s Web site.”

Google said its service actually does newspaper a favor by driving traffic to their sites.

But the court said Google’s innovations don’t get exemptions from Belgian data storage law.

“We confirm that the activities of Google News, the reproduction and publication of headlines as well as short extracts, and the use of Google’s cache, the publicly available data storage of articles and documents, violate the law on authors’ rights,” the ruling said.

If Google News violates authors’ rights, there will be a lot more that does as well. Tons. It will be interesting to see what happens on appeal as it could have rather far-reaching implications – at least in Belgium.

RIAA to AllOfMP3: Show Me the Money!!

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Interesting article in TechCrunch about how AllOfMP3 told the RIAA to get lost when it filed its $1,650,000,000,000 (yes, you did read that figure right – its in the trillions) claim in New York against AllOfMP3, even though AllOfMP3 operates out of Russia. From a legal perspective one would typically launch into the complexities of jurisdiction, judicial comity, real and substantial connection, forum non conveniens, blah, blah, blah.

But since this is a personal blog, let’s focus on the fun part, shall we? Let’s focus on the CASH. Woohoo! Fun with numbers. OK, so, let’s see. Accordingly to the CIA World Factbook, the current population of the world is 6,525,170,264. So, if the the damages sought by the RIAA were evenly divided amongst every man, woman and child, each one of them could go out and buy, oh, about twenty CDs, give or take. Wow. That’s a lot of CDs.

Another way to look at it? Its bigger than the GDP of every country in the world except for roughly the top ten. Yes yes, figures are few years old. Fine. Call it 15. You get the point. In any event, around the ballpark GDP for all of Russia. Yes, including the little nesting doll thingies.
From a more personal perspective, the interest on that amount, calculated at the low, low US fed rate for the shockingly painful period of time of two minutes is quite just a bit more than the combined annual incomes of me, my wife, my mom, stepmom, dad, sister, and her husband make in a year.
The point? Just that its a lot of money. A LOT of money. Not exactly googol or a googolplex

(which, as you probably know, is how Google got its name:

The Internet search engine Google was named after this number. Larry Page, one of the founders, was fascinated with mathematics and ‘Googol’, even during high school. They ended up with ‘Google’ due to a spelling mistake on a cheque that investors wrote to the founders.

(from Wikipedia)) but still a lot of money.

Update:  Further news from the INQ – apparently they calcuated damages at US$150,000 per song. Though the INQ correctly observes that AllOfMP3 hasn’t made that much money, damages could also be measured not by what an infringer has made (or an “accounting of profits”) but also the harm that they’ve cost you – so if AllOfMP3 sold each song for a penny, while the RIAA members would have otherwise sold the same song for a buck, multiply that by 150,000 downloads and you have your damages, as that is what they’ve lost out.