TechDirt has an interesting article on a new copyright case that involves the 1980's hit song Down Under by the band Men at Work. There are several weird aspects of this particular story, which underscore some of the problems inherent in the current copyright system.

Namely:

1. The owner of the copyright who is claiming infringement against Men at Work is doing so with a song that was written in the 1930's

2. The song Down Under is well over 20 years old

3. The owner of the 1930's song bought the copyright in 2000 and waited nine years to file a claim


Here's what TechDirt has to say:

...an Australian music publishing firm, Larrikin Music, is suddenly accusing the Australian band, Men At Work, of "ripping off" a 1930s popular Austrlian children's song, "Kookaburra" with their hit song "Down Under." Why did it take so long? Well, Larrikin only gained the copyright in 2000, but that's still 9 years of nothing. Apparently, they only noticed the similarities when an Australian quiz show brought it up -- which certainly raises questions about any "harm" done by this (if there was any actual copying).

This does seem like a questionable use of copyright. First, why are songs that old not part of the public domain? Something seems very wrong about having copyright ownership last for generations. I can see copyright for life of the author, but the person who owns the current copyright had nothing to do at all with the creation of the song.

Second, given that no one did anything and that Down Under is well over 20 years old, why is there not some sort of statute of limitations? If it wasn't a concern to whomever owned the copyrights in question back when Down Under was a hit, why should it be an issue now?

I fully support copyright and IP protection, but this particular case seems to go beyond what is reasonable. But that's just my opinion.

Techdirt story is here.


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The area of IP law in the digital realm is really in a awful state. The balance between fair use and rights holders "rights" seem to swing from one extreme to the other. Examples include everything from rampant downloading of copyrighted material through P2P networks, which trample on rights holders, to the strict take down policies on YouTube which trample on fair use rights on videos that create mashup works.

Somewhere there has to be a balance, but it doesn't appear to be anywhere in the near future. Be that as it may, we may be entering a new era of IP battles inside Second Life. The latest case in point, the company which makes Tasers, those real life weapons the police use to subdue a person, has sued Linden Lab and Virtualtrade LLC for trademark infringement according to a report in Bloomberg.

Taser International Inc. filed a trademark-infringement lawsuit against the Second Life online virtual world creator over claims it sells unauthorized virtual versions of its electric stun guns.

Taser, the world’s biggest maker of stun guns, claims San Francisco-based Linden Research Inc. is damaging the company’s reputation and hurting its sales by allowing virtual weapons to be sold online under the Taser brand name, according to a 102- page complaint filed April 17 in federal court in Phoenix.

Okay, those of us who are content creators in Second Life knew something like this would happen eventually, so now we are entering new territory. While Linden Lab should have DMCA safe harbor protection, it remains to be seen how this will end. That said, here is an interesting aspect of the lawsuit:

Taser says the alleged infringement is especially harmful because the online stores include pornographic content.

Well it's good to know that the taser is a nice family friendly weapon.

Seriously though, that is an interesting area in which Taser is attacking Linden Lab in this suit, assuming that they filed DMCA's previously, and given the new adult continent policy. It isn't clear in the article whether or not Taser ever filed DMCA takedown notices, so it is entirely possible that they are over reaching in terms of bringing Linden Lab into the suit. We shall see though how it plays out in court.

As for the trademark violation itself, it's an interesting test case. However, it seems clear to me that whoever is selling these in world is very likely in violation of the trademark, and I don't see how any fair use argument could reasonably apply, so I wouldn't want to be in their shoes right now.

This latest example of IP battles in Second Life also brings up the following thoughts:

1. Perhaps this will encourage LL to do something about copybot.

2. If you are violating trademarks and copyrights in world, be forewarned, you may find yourself neck deep in legal troubles.

3. if you rent land to shop owners, this case would imply that you should make sure that those who rent from you are not selling real world brands without a license, otherwise you could find yourself dragged into something like this mess somewhere down the road.

We'll watch this case and see how it develops.


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File this one under Stupid PR Moves. The greed of the recording industry knows no bounds it seems, and even material that is done within the parameters of fair use is now getting pulled from YouTube for "copyright violation." Why the public continues to tolerate these petulant dinosaurs is a mystery, but that is a topic for a different day.

This post deals with the video that compared the Joe Satriani guitar riff to the Coldplay song riff, and made the case that Coldplay lifted the melody from Satriani (I discussed that video in this earlier post).

So get this, the record company for Coldplay, EMI, decides to have the riff comparison video pulled off of YouTube by claiming copyright infringement. Way to go EMI, what a totally idiotic maneuver that makes you look like you want to hide this video, and all this will do is increase demand for it. No wonder the recording industry is in trouble, their PR machine is a joke:

Joe Satriani accused Coldplay of plagiarism for lifting elements of his song "If I Could Fly" for its hit song "Viva La Vida" earlier this year.

Now, videos depicting similarities between the songs are disappearing from YouTube courtesy of Coldplay's label, EMI, which claims the videos infringe on its copyright

Nice work, I hope someone educates you on the idea of Fair Use, which I quote from the US Copyright Office website:

Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered “fair,” such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:

1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;

2. The nature of the copyrighted work;

3. Amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

4. The effect of the use upon the potential market for or value of the copyrighted work.

Might it be point #4 that has EMI worried? If so they just made it much worse and it won't be a surprise to see videos popping up all over the place comparing these two songs, much to the chagrin of EMI.

Source for story from Wired click here.

Source for Fair Use information click here.

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Guitarist Joe Satriani and the band Coldplay are in the midst of a real actual copyright dispute. In this case Satriani is claiming that the Coldplay song Viva La Vida is a case of plagiarism of the Satriani guitar riff from the instrumental If I Could Fly.

I had never heard of the Satriani song before I read the news about this particular case, and I have no idea if Coldplay had either. But it would be interesting to compare the two songs in their entirety. I'll include a video comparison below of snippets of the two songs, but I don't know if this is enough to win an accusation of plagiarism in court or not. Guess we'll see. Nonetheless, this is an example of copyright in action:

Grammy nominees Coldplay have been sued by rock guitarist Joe Satriani, who claims the band's song Viva La Vida uses one of his riffs.

In court papers filed in Los Angeles on Thursday, he said the song used "substantial original portions" of his 2004 instrumental If I Could Fly.

Satriani, 52, wants a jury trial and is seeking damages and "any and all profits" for the alleged plagiarism.

Source for quote click here.

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Groklaw has a fascinating post today about the latest in the Apple suit against Psystar. In case you have not heard of this before, Psystar is basically selling Mac clones without permission or agreements in place with Apple. This likely violates a number of different areas of IP, especially regarding trademarks and copyrights, and so far things are going in the direction of Apple.

So today Groklaw posted this, which sounds like a potential bombshell:

Apple has filed a motion to amend its complaint [PDF] to add a claim of violation of the DMCA, among other new and enlarged claims. Here's the proposed Amended Complaint [PDF]. So, not only have all of Psystar's counterclaims been thrown out, but now it faces new claims. But here's the big news. Apple alleges that it believes there are corporations and/or individuals behind Psystar, who may be added as defendants once Apple in discovery finds out who they are. Woah. Here's the new paragraph that made my eyes bug out:

18. On information and belief, persons other than Psystar are involved in Psystar’s unlawful and improper activities described in this Amended Complaint. The true names or capacities, whether individual, corporate, or otherwise, of these persons are unknown to Apple. Consequently they are referred to herein as John Does 1 through 10 (collectively the “John Doe Defendants”). On information and belief, the John Doe Defendants are various individuals and/or corporations who have infringed Apple’s intellectual property rights, breached or induced the breach of Apple’s license agreements and violated state and common law unfair competition laws. Apple will seek leave to amend this complaint to show the unknown John Doe Defendants’ true names and capacities when they are ascertained.

So, Apple apparently believes that somebody else is behind Psystar, which might help to explain why a major law firm would take on what seems like a fly-by-night's case; also why Psystar has been so bold in continuing to sell its products. I knew this thing felt funny. As Alice in Wonderland might put it, "It gets interestinger and interestinger.”

Who would benefit from something like this? Most would immediately say Microsoft, but this is probably the last thing MS would want as it would create a true competitive situation with Windows. But if Groklaw is correct, this could be a major story unfolding.

For source post click here.

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Groklaw has a fascinating post today about the latest in the Apple suit against Psystar. In case you have not heard of this before, Psystar is basically selling Mac clones without permission or agreements in place with Apple. This likely violates a number of different areas of IP, especially regarding trademarks and copyrights, and so far things are going in the direction of Apple.

So today Groklaw posted this, which sounds like a potential bombshell:

Apple has filed a motion to amend its complaint [PDF] to add a claim of violation of the DMCA, among other new and enlarged claims. Here's the proposed Amended Complaint [PDF]. So, not only have all of Psystar's counterclaims been thrown out, but now it faces new claims. But here's the big news. Apple alleges that it believes there are corporations and/or individuals behind Psystar, who may be added as defendants once Apple in discovery finds out who they are. Woah. Here's the new paragraph that made my eyes bug out:

18. On information and belief, persons other than Psystar are involved in Psystar’s unlawful and improper activities described in this Amended Complaint. The true names or capacities, whether individual, corporate, or otherwise, of these persons are unknown to Apple. Consequently they are referred to herein as John Does 1 through 10 (collectively the “John Doe Defendants”). On information and belief, the John Doe Defendants are various individuals and/or corporations who have infringed Apple’s intellectual property rights, breached or induced the breach of Apple’s license agreements and violated state and common law unfair competition laws. Apple will seek leave to amend this complaint to show the unknown John Doe Defendants’ true names and capacities when they are ascertained.

So, Apple apparently believes that somebody else is behind Psystar, which might help to explain why a major law firm would take on what seems like a fly-by-night's case; also why Psystar has been so bold in continuing to sell its products. I knew this thing felt funny. As Alice in Wonderland might put it, "It gets interestinger and interestinger.”

Who would benefit from something like this? Most would immediately say Microsoft, but this is probably the last thing MS would want as it would create a true competitive situation with Windows. But if Groklaw is correct, this could be a major story unfolding.

For source post click here.

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The news that Aimee Weber, who is an avatar in Second Life, has been granted a trademark has brought up some interesting conversation, especially over at the XstreetSL forum. So I did a bit of research about Second Life names, and found some interesting information. Although I'm not quite ready to create some analysis around the findings (that will come later when I have more data), what I've found so far brings up some questions.

First, we know that Linden Lab has a certain set of surnames that are given out at any point in time, and those surnames are eventually retired from new signups. So for example, the surname "Selene" is no longer available.

So question #1 is are older names more rare? Question #2, are older surnames (avatars) more valuable? I'm not ready to declare any answers to these questions, but consider this:

- My SL surname is allocated to 477 avatars

- The surname Weber is allocated to 30 avatars

- The most common name, Allen, is allocated to 155,022 avatars

- All the above are "heritage" surnames (e.g. no longer available to new accounts unless you buy it custom)

These are some thoughts to consider and try to answer. For your entertainment, here are the most common surnames in Second Life:





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Yesterday I did a post about the news that the avatar for Aimee Weber has been granted trademark status, and in viewing some forum responses there is a lot of confusion about the topic of trademarks and copyrights. It's important for designers, marketing executives, and business owners to understand this topic and by extension, why the Aimee Weber news is so important.

The first thing is to clarify what can be trademarked and why you should consider doing it if you are serious about your virtual worlds business endeavors. The following information is a summary of trademark information that comes from the Harvard law website, with additional information coming from the US Copyright Office website. Please contact the the USPTO and/or the US Copyright Office if you have questions about these issues. Disclaimer: this post is informational only, and is not intended as legal advice. If you need legal advice, please find an attorney who specializes in IP law.

What is a trademark?

- A trademark is a word, symbol, or phrase, used to identify a particular manufacturer or seller's products and distinguish them from the products of another.

- Under some circumstances, trademark protection can extend beyond words, symbols, and phrases to include other aspects of a product, such as its color or its packaging

- Trademarks make it easier for consumers to quickly identify the source of a given good.

What are the prerequisites I need to get a trademark?

- In order to serve as a trademark, a mark must be distinctive -- that is, it must be capable of identifying the source of a particular good.

- An arbitrary or fanciful mark is a mark that bears no logical relationship to the underlying product. For example, the words "Exxon," "Kodak," and "Apple" bear no inherent relationship to their underlying products (respectively, gasoline, cameras, or computers).

- A suggestive mark is a mark that evokes or suggests a characteristic of the underlying good. For example, the word "Coppertone" is suggestive of sun-tan lotion, but does not specifically describe the underlying product.

- A descriptive mark is a mark that directly describes, rather than suggests, a characteristic or quality of the underlying product (e.g. its color, odor, function, dimensions, or ingredients). For example, "Holiday Inn," "All Bran," and "Vision Center" all describe some aspect of the underlying product or service (respectively, hotel rooms, breakfast cereal, optical services).

Can my generic image be trademarked?

- a generic mark is a mark that describes the general category to which the underlying product belongs. For example, the term "Computer" is a generic term for computer equipment. Generic marks are entitled to no protection under trademark law. Thus, a manufacturer selling "Computer" brand computers (or "Apple" brand apples, etc.) would have no exclusive right to use that term with respect to that product. Generic terms are not protected by trademark law because they are simply too useful for identifying a particular product.

Does my trademark need to be registered with the PTO to protect it?

- Although registration with the PTO is NOT required for a trademark to be protected, registration does confer a number of benefits to the registering party.

How to I acquire a trademark?

- rights to a trademark can be acquired in one of two ways: (1) by being the first to use the mark in commerce; or (2) by being the first to register the mark with the U.S. Patent and Trademark Office ("PTO").

- The use of a mark generally means the actual sale of a product to the public with the mark attached. This priority is limited, however, to the geographic area in which I sell the bubble gum, along with any areas I would be expected to expand into or any areas where the reputation of the mark has been established.

- The other way to acquire priority is to register the mark with the PTO with a bona fide intention to use the mark in commerce. Unlike use of a mark in commerce, registration of a mark with the PTO gives a party the right to use the mark nationwide, even if actual sales are limited to only a limited area

Can I lose my trademark?

- The rights to a trademark can be lost through abandonment, improper licensing or assignment, or genericity.

What is trademark infringement and what can be done about it?

- If a party owns the rights to a particular trademark, that party can sue subsequent parties for trademark infringement.

- The standard is "likelihood of confusion." To be more specific, the use of a trademark in connection with the sale of a good constitutes infringement if it is likely to cause consumer confusion as to the source of those goods or as to the sponsorship or approval of such goods

What about copyrights to the components of an avatar? Do they affect the trademark?

- Copyright is a separate IP issue from trademark

- Copyright does not protect names, titles, slogans, or short phrases. In some cases, these things may be protected as trademarks. Contact the U.S. Patent & Trademark Office, 800-786-9199, for further information. However, copyright protection may be available for logo artwork that contains sufficient authorship. In some circumstances, an artistic logo may also be protected as a trademark.

Some of the reasoning supporting the idea that Aimee Weber can be trademarked is because her avatar is identified with her business and is also distinctive. If your avatar is highly customized and highly associated with your virtual business, then it is something you may want to consider trademarking. As for the copyrights that might apply to parts of the avatar (hair, skin, clothing) the trademark rights granted to an avatar are different. It can be a very confusing area, but what the copyright office quote seems to indicate is that the image of an avatar associated to a business is a trademark concern, whereas actually selling copies of an avatar to others is a copyright concern.

Finally, remember, if you have questions on the legal issues surrounding copyright, trademark, or patents, consider getting the counsel of an attorney who specializes in IP law.

Sources:

Trademark law information at Harvard click here.

Copyright law information at the US Copyright Office click here.


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The rights around IP protection just became a little more interesting recently as a trademark has now been established for a Second Life avatar. The idea itself really isn't as far-fetched as it may seem. In many ways an avatar is little different from any other character that one might create for film, video, animation, or books, the difference being that the avatar exists in a virtual world and is (typically) associated with an individual.

However, we might all want to begin thinking about the avatar that we own as a unique character fully capable of IP trademark and copyright protections (assuming you are not running around in Second Life as a generic noob, but have customized your avatar and spent time developing its public image).

A former Manchester woman has won the first federal registered trademark for an avatar used in a virtual world and the real world.

The landmark application helps Alyssa LaRoche protect her brand and avatar, known as Aimee Weber, for her virtual content and services business.

"It was really satisfying for this to come through," she said while visiting her Manchester family for Thanksgiving.

She uses her avatar, a person's alter ego and character, in Second Life, a 3D virtual world opened to the public in 2003. Second Life is inhabited by millions of people around the globe who have social and commercial opportunities.

This is a major development, and should impact many of us:

Jennifer L. Fessler, an associate with the law firm of Grossman, Tucker, Perreault & Pfleger, said the successful application with the U.S. Patent and Trademark Office is a landmark decision because it recognizes trademarks for virtual services that are commerce and enforceable in the real world.

"It's kind of hard to say right now," Fessler said of Aimee Weber's impact on trademark law and the ever-expanding commercial opportunities in the virtual world.

The federal trademark decision, which was finalized Nov. 11, might pave the way for future trademark owners seeking federal protection for their avatars and other brand identifiers created and used in virtual worlds, according to Grossman, Tucker, Perreault & Pfleger, which focuses on intellectual property matters.

This is something that has been a while in developing, but overall I believe it is a positive direction:

"There are all sorts of new trademark issues raised by the virtual world, such as 'What, exactly, are virtual goods in the first place?'" Duranske said in an e-mail response for this story. "But the Aimee Weber trademark isn't as strange as it might seem. Trademarking an avatar is new, but it makes sense. After all, McDonald's trademarked Ronald back in 1967. 'Aimee Weber' is just the emblem or logo that Alyssa LaRoche uses for her business, and legally, it's no different than a costumed character in front of a sandwich shop."

The full story can be read here.

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The issue of copyright has become one where something has to give. The RIAA (major record labels) have been engaged in threats of lawsuits against common web users for several years now (often with dubious evidence of infringement), have shut down some P2P companies, want the right to decide how computers and electronic gadgets are designed, and have succeeded in getting the US government to setup a Copyright Czar in the Office of the President.

Conversely, content creators are facing a rapidly changing landscape full of the unknown, but also with the possibility of being able to create and distribute their own content for very little cost. What's rapidly vanishing is the need for the old style distribution systems that built up concepts such as major record labels.

So there are legal battles going on in the copyright area which indicate that technology innovation is causing a major disruption to business models which worked well forty years ago, but which now are disconnected with the capabilities brought about by the internet and open source software.

It is against this backdrop that the RIAA counterpart in France, the SPPF, is considering filing suit against SourceForge for hosting open source P2P software downloads. Yes, you read that correct. Open source software. Not music, but legal software.

According to a report in TechDirt:

Finally, and most bizarrely, SPPF is also suing SourceForge, which is just a hosting platform for open source developers. The problem there (according to SPPF) is that SourceForge hosts the open source Shareaza file sharing app. It would appear that SPPF did so little research in figuring out who to sue, that it seems to think SourceForge is somehow responsible for Shareaza, rather than just hosting it.

What do you think about this? Good? Bad? Something else? Let us know.




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Under the guise of protecting kids from objectionable online content, the Australian government is in the process of setting up "filters" to block any and all content which it deems "illegal," and according to a report in ARS Technica, there is no opt-out option for adults to have access to such content. Based on the report, it's difficult to say what is defined as "illegal" but the slippery slope here is that the Aussie Government is placing itself in the position of Internet censor.

This particular story is still murky in some details, and as such, definitely warrants further attention and fact finding. That said, if what ARS is postulating is true, this is a disturbing situation. The argument starts with content that most of us find objectionable, which at first is fine, but then it places the government in a position of extreme power, and potentially leads to censorship of material that allows the citizens to remain informed.

From the article:

"That is the way the testing was formulated, the way the upcoming live trials will run, and the way the policy is framed; to believe otherwise is to believe that a government department would go to the lengths of declaring that some kind of Internet content is illegal, then allow an opt-out," Newton said. "Illegal is illegal and if there is infrastructure in place to block it, then it will be required to be blocked—end of story."

A spokesperson for the Australian Communications Minister seemed to confirm this revelation by saying that the filters would be required for all Australian citizens.

Really? I thought Australia was a western democracy? That passage sounds like something you'd see in China. ARS continues:

Assuming this is in fact the way the scheme is implemented in practice, it raises plenty of troubling questions. "Illegal" is a broad definition, leaving users wondering exactly what kinds of content will end up falling prey to the government's apparently mandatory filtering restrictions. Will Big Content be ringing up the Aussie government soon to have tracker sites added to the blacklist? ...or something ... like DVD decryption tools? And how about those sites that advise users on how to get around the filters? Will various Wikipedia pages be blocked?

When legitimate business sites start getting blocked by this brain dead scheme, we'll see how long this lasts. Leaving aside for the moment the fact that people will find a way around these filters, this whole thing begs the question of how the voters like being treated as children by their own government. It's one thing for me to install filters to keep my kids away from certain kinds of content, it's quite another for the government to take over my role as parent. I'll assume that the politicians in Australia largely are technology naive and believe they are doing a good thing, because the only other conclusion is that the politicians in Australia must really be afraid of democracy, and I hope that isn't the case.

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The comic below does a great job of graphically showing why DRM is a model that does not work. It succinctly shows that either the choice of grabbing content from P2P networks or through approved channels ultimately leads the consumer of the content to the path of being treated as a criminal. The basic problem with DRM comes down to the fundamental question of what happens when the seller no longer supports the DRM scheme being used?

The consumer is left with two choices. First, lost all their content (which is not acceptable to most people). Second, disable the DRM (which is illegal according the DMCA). Hence, we're left with a badly broken model. I don't have the answer to the problem, but as this graphic points out, what we have in place now is a lousy model.





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The Orphan Works bill in the US Congress that was causing concern amongst small copyright holders appears to be dead for the time being. The Senate passed a version of the bill, which added some improvements, but due to the $700 billion Wall Street rescue issue, the House has not and will not have time to address the bill.

Essentially it means it will have to wait and be resurrected in the next congress. According to ARS Technica, improvements in the revised bill clarified "diligent search" for copyright holders, and appears to make the Copyright Office more of a central source of information:

The final version of the bill included an expanded definition of "diligent search" that instructs users to seek expert assistance and look in Internet databases and Copyright Office records to try to ascertain the rights-holder before using a work without permission. Specifically, users must first search the relevant Copyright Office records, search for the owner in "reasonably available" sources of information, use technology and printed publications, and search various databases, including those available online.

Given the gravity of the issues caused by the Wall Street rescue, the Orphan Works bill is something we will have to wait to revisit in 2009.





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As the US congress debates ways to give $700 billion USD to Wall Street firms, they have quietly given the RIAA and MPAA a huge gift in the form of Pro-IP. One of the more offensive parts of the bill was removed, namely having the federal government get into the business of filing civil suits against citizens. That's all well and good, but still this legislation does not seem to do anything to help advance the area of copyright and its related issues in the digital age.

What you need to understand about this is that congress is going to authorize taxpayer money to essentially set up a policing agency for big content. For counterfeiting operations that makes sense. However, tt does little to nothing to help small content owners, and sets up a situation whereby developers of new technologies may find themselves having their equipment confiscated and shutdown. If this had been law four years ago for example, it's quite conceivable that something like YouTube would have been shut down by the government long before it became a mainstream phenomenon.

Are these unfounded worries? For starters, try this quote from Senator Ron Wyden:

Unleashing federal prosecutors on Internet communications and discourse would also have a chilling effect on both commercial activity and free expression. Both the individual desire to share ideas and creativity more broadly and the drive of business to expand their markets and reach new customers have been the engines behind the most dynamic and vital new industry in American history. This is why it is so important that unintended consequences not be allowed to tax, throttle, or otherwise inhibit those creative forces.

With over 30,000 civil suits filed by a single entity against individual Americans it is clear that industry is more than able to enforce its intellectual property rights in civil courts without the contribution of taxpayer funds and busy federal prosecutors. I continue to urge the content industries to seek out distribution models that take into account, and profit from, the new technologies that have revolutionized the way Americans communicate, learn and share information.

Public Knowledge had this to say about the bill:

"At a time when the entire digital world is going to less restrictive distribution models, and when the courts are aghast at the outlandish damages being inflicted on consumers in copyright cases, this bill goes entirely in the wrong direction," said Gigi Sohn, president of Public Knowledge.

Predictably, the lawyers for big content are happy:

Rick Cotton, executive vice president and general counsel of NBC Universal, said concerns that the bill goes too far are unfounded.

"Over the last 20 years, the flood of physical counterfeit projects and the scale of digital theft (have) gone off the chart," he said. "What drives (the U.S. economy are) precisely technical invention, innovation, and creativity--if we don't protect that, we dramatically undermine our economic future."

That's interesting. I somehow doubt that when Mr. Cotton talks about "technical innovation" being protected, he isn't talking about YouTube, P2P, iPods, or even the web. However I won't be surprised if other countries become more than happy to fill the vacuum of innovation in technology while the US take such retrograde steps and attempt to stifle the pace of innovation internally. Sadly the only people who will suffer are the citizens of the US. We badly need copyright reform, but this bill seems to be completely going wrong direction.

UPDATE Sept 29 2008: Cnet is reporting that the Pro-IP bill has passed in the House and has been sent to Bush for final approval or veto:

The House of Representatives on Sunday cleared the intellectual property enforcement bill that would create an "IP coordinator" position in the White House.

The legislation, formally known as the Prioritizing Resources and Organization for Intellectual Property Act, or Pro-IP, passed unanimously in the Senate on Friday.

The Bush administration last week sent a letter to Congress stating its opposition to certain measures, including the creation of an IP coordinator. It is unclear whether the administration supports the bill as it was passed.

The bipartisan legislation passed in the House 341-41, with dissenters on both sides of the aisle. The measure has received wide support from the business community, including from groups like the Recording Industry Association of America and the AFL-CIO, but it is opposed by public interest groups like the Electronic Frontier Foundation and Public Knowledge.

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ARS Technica is reporting that the judge in the trial of Jammie Thomas has reversed the verdict against her. To recap, she was accused by the RIAA of putting 24 songs on a P2P network. A jury convicted her and ordered her to pay the RIAA $222,000.00 USD (that number is not a typo).

The public reaction to the award in this case was largely negative, primarily because most viewed the penalty as excessive, and took issue with the concept of whether or not making a file available in a Shared folder is the equivalent of distribution. Both of these are factors that caused the judge to make the reversal.

From the ARS article:

The ruling also deals with the right of publication under the Copyright Act. In another P2P case where the judge ruled on the same issue, he decided that making a file available violates the copyright holder's right of publication and therefore infringed the record labels' copyrights. Judge Davis disagreed with that reasoning. "A review of the Copyright Act as a whole also supports the conclusion that publication and distribution remain distinct concepts," wrote the judge. "While a publication effected by distributing copies or phonorecords of the work is a distribution, a publication effected by merely offering to distribute copies or phonorecords to the public is merely an offer of distribution, not an actual distribution."

Then he comments on the lopsided award:

The statutory damages awarded against Thomas are not a deterrent against those who pirate music in order to profit... Thomas's conduct was motivated by her desire to obtain the copyrighted music for her own use. The Court does not condone Thomas's actions, but it would be a farce to say that a single mother's acts of using Kazaa are the equivalent, for example, to the acts of global financial firms illegally infringing on copyrights in order to profit in the securities market.

While the Court does not discount Plaintiffs' claim that, cumulatively, illegal downloading has far‐reaching effects on their businesses, the damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs. Thomas allegedly infringed on the copyrights of 24 songs—the equivalent of approximately three CDs, costing less than $54, and yet the total damages awarded is $222,000—more than five hundred [emphasis his] times the cost of buying 24 separate CDs and more than four thousand times the cost of three CDs.

This is something that needs to be considered when examining our previous post on the EIPRA legislation. Copyright law needs some serious, well thought out reform, but said reform needs to be fair to small content owners, fair use rights of consumers, and big content. As it is currently structured, big content carries an unfair advantage in the courtroom, small content owners are left in the cold, and end users are caught in the middle. That needs to be fixed.



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