Oh, no, the worst has occurred! A woman created knitting patterns based on the monsters in Doctor Who, and other people knitting up those monsters and posting them on eBay. And it’s simply got to stop! Well, something’s got to stop, anyway. Let’s dig in, shall we?

The BBC has threatened legal action against a 26-year-old woman calling herself Mazzmatazz, because she created and posted the knitting patterns online, and in doing so, also invoked the trademark gods by uttering the magic words, “Doctor Who,” in describing the characters on her Web site. The Beeb maintains that she broke the Doctor Who trademark, and also that it “likely” owns trademark rights over the Ood and Adipose characters represented in the patterns. (Given the current flap over whether “Happy Birthday” is, in fact copyrighted, I’d think the BBC should be careful with what it thinks it “likely” owns, however.)

To be fair, the BBC somewhat timidly notes that it didn’t want to come after such a zealous fan, and only did so because, “there were some unscrupulous people taking these patterns and using them on eBay to make profit for themselves. Unfortunately, we had to get to the source of the patterns - and that was her website.”

And actually, that’s where things get really interesting. Knitting is big business, and it’s long been fraught with copyright issues related to patterns. See, the act of creating a pattern itself (or any creative work, really) can infer copyright, and there is a lot of guidance for the knitting community about how to avoid incurring copyright wrath (by, say, using a pattern you didn’t pay for to knit a sweater that you later sell), and about how to copyright your own patterns. And, in this specific case, Andres Gudamuz of Edinburgh University told the Times Online, “the act of creating a knitting pattern could be enough to give Mazzmatazz copyright.”

So, not only could Mazzmatazz potentially defend against the BBC takedown notice by claiming that her reinterpretation of the monster figures from the show is just that — a creative reinterpretation that doesn’t infringe any trademark, she might also be able to turn around and go after the people who used her pattern to create and sell little monster dollies on eBay. She could, in sum, achieve a win-win. That is, if the entire situation weren’t so ludicrous to begin with. After all, are the “unscrupulous individuals” who used the pattern that Mazzmatazz herself posted online to knit Doctor Who dolls and sell them online really making significant enough revenue that the BBC itself should be threatened?

Some of this seems to argue for a re-write of the statutes that insist a trademark must be vigorously defended, lest it be lost. Perhaps trademarks should be vigorously defended only when a proven commercial entity is attempting to infringe, but individuals and noncommercial (or heck, even “small potatoes”) derivative works could be specifically granted broad fair-use latitude until some financial threshold were reached.

For Mazzmatazz, the whole thing suggests that she ought to look into getting a Creative Commons license of some sort for her patterns, whether they’re show monsters or not. See, the idea behind CC protection is that you’re not just specifically protecting your intellectual property, you’re protecting the people who use it. The whole case gets a lot less murky if you publish a knitting pattern (which, as your creation, is very likely copyrighted, never mind these particular trademark issues) with, say, a noncommercial CC license that says anyone can use it, but not sell the resulting product. Then, you, personally have recourse against eBayers, and you possibly avoid the wrath of the BBC by maybe preventing those sales in the first place.

See? I’m not an intellectual property anarchist. There’s a place for rules in all of this. It’s just that the rules need to be a whole lot less stupid.

Filed under: Uncategorized, BBC, copyright, Doctor Who, knitting | 2 Comments

Ok, here’s the deal. Everyone needs to stop paying any royalties on “Happy Birthday,” wait to get sued by Warner Music, and when they come after one of you, start a giant class-action lawsuit based on the findings of one Robert Brauneis of the George Washington University law school. Those findings, in a nutshell? The song isn’t currently covered by copyright, and, quite possibly, hasn’t been for a very long time.

The tune of Happy Birthday was composed by two American kingergarten teachers, and called “Good Morning to You.” The song reappeared with the “Happy Birthday” lyrics some time later, and a music publisher applied for a copyright in 1935, naming Preston Ware Orem and Mrs. R.R. Forman as the authors of the “Happy Birthday” ditty. In 1990, per Wikipedia, some real money came into play:

“In 1990, Warner Chappell purchased the company owning the copyright for US$15 million, with the value of ‘Happy Birthday’ estimated at US$5 million. Based on the 1935 copyright registration, Warner claims that US copyright won’t expire until 2030, and that unauthorized public performances of the song are technically illegal unless royalties are paid to it.”

However, argues professor Brauneis on his exhaustive paper on the subject: “The song that became ‘Happy Birthday to You,’ originally written with different lyrics as ‘Good Morning to All,’ was the product of intense creative labor, undertaken with copyright protection in mind. However, it is almost certainly no longer under copyright, due to a lack of evidence about who wrote the words; defective copyright notice; and a failure to file a proper renewal application.” (Emphasis added.)

The unbelievable thing about this situation is, as Brauneis notes, that nothing is likely to change unless someone comes along with the inclination and cash flow to take on the Warner juggernaut. And that juggernaut is very likely to throw a lot of money at such a case, considering the benefits it’s reaping from this claim — some $2 million a year.

So, here we are, post Copyright Extension Term Act, terrified of singing “Happy Birthday” in a movie or television show or even a children’s party with a good PA system until 2030, when it’s very likely, according to Brauneis, his 69-page paper, and his “two hundred unpublished documents found in six archives across the United States,” that Warner isn’t entitled to a dime of royalty payouts and in fact, probably owes a whole lot of back checks … and it’s a near-certainty that nothing is going to change in the very near future.

But good work, Robert Brauneis, because if there’s anything that could get someone up in arms (maybe in Congress? It’s wishful thinking, I know), it’s this type of actual research and the attention that I hope it gets. Dear Mainstream Media: are you listening? “Happy Birthday” must be free!

Filed under: Information, News, copyright, Happy Birthday, law, Warner Music | 1 Comment

As reported by Wired News, Los Angeles County has determined that intellectual property infringement “substantially interferes with the interest of the public in the quality of life and community peace, lawful commerce in the county, property values, and is detrimental to the public health, safety, and welfare of the county’s citizens, its businesses and its visitors.”

This move, in essence, gives the county wide latitude to treat properties where piracy is happening in the same manner they’d treat meth labs, cat-houses, or underground casinos. Wired dryly notes that “[t]he regulation was crafted at the urging of the Motion Picture Association of America and the Recording Industry Association of America.”

No kidding.

Filed under: News, copyright infringement, MPAA, piracy, RIAA | 2 Comments

On Thursday, Tennessee became perhaps the first state in the nation to adopt legislation aimed at forcing universities to police their own networks for pirated media. The Tennessee legislation mandates, according to this News.com article:

“any higher education institution in the state, whether public or private, to develop and enforce a policy that prohibits its students, staff, and faculty from committing copyright infringement. It also requires schools to make “reasonable” attempts to prevent copyright infringement on their networks if they receive 50 or more infringement notices during a preceding year, but it does not explicitly define what those steps are.”

The legislation as passed is probably vague enough to be both comforting and terrifying. But it could have been a lot worse. The original draft (PDF) was written directly by a RIAA lobbyist, and would have forced schools to spend precious dollars on “effective technology-based deterrents, to prevent the infringement of copyrighted works over the school’s computer and network resources, including over local area and internal networks.”

A similar measure is being considered in Illinois, and by that I mean that it is similar to the “technology-based deterrents” version of the Tennessee bill, not the “tell people not to pirate music and movies and try pretty hard to keep them from doing it” version. What’s interesting about the proposed Illinois legislation is that it would be triggered by a school receiving 10 infringement notices in a given year, unlike the 50 required in the great state of Tennessee.

What’s astonishing about both of these bills, and other efforts by the RIAA to wage a state-by-state campaign of educational bullying, is not just the audacity of asking public and private educational institutions to spend valuable resources ensuring that the RIAA and the MPAA are continuing to make money. It’s the fact that mere notices of infringement are sufficient proof that schools have infringers on the property.

We all know that any idiot can send any old DMCA takedown notice to anyone, regardless of merit, proof, or actual verification of address.

And not coincidentally, the last month, as you probably know, has seen a rush of stories chronicling a disturbing increase in the number of copyright notices the RIAA is sending to colleges and universities. Indiana University noted to Wired that it’s receiving on the order of 80 DMCA notices per day, up from 100 per month from the RIAA, MPAA, and HBO combined. The University of Chicago, George Washington University, and the University of Cincinnati all note similar increases.

It’s obviously not hard to see what the RIAA is up to. Flood schools with notices of infringement, whether they’re even remotely true or not, then have your lobbyists write and hand-deliver legislation that requires technologically impossible and ridiculously expensive filtering on school networks based solely on those same notices of infringement. What’s utterly unbelievable, though, is that any state legislature would go along with this sham, in any form.

Colleges and universities are an easy target because students have a reputation for being low-income freeloaders and pirates. But as we know from the MPAA’s 200 percent math error, the accusations aren’t necessarily true, and state legislatures would do well to do their research and leave the education to the people who can count.

Filed under: News, Rant, copyright infringement, music, piracy, RIAA, universities | 3 Comments

Call this a “Bob Loblaw law flaw.” A respected law professor and intellectual property scholar says According to intellectual property scholar John Duffy, a well-respected professor at George Washington University Law School, billions of dollars of patent decisions made in the last eight years might have been made by patent appeals judges who were unconstitutionally appointed. And if that’s the case, hundreds, if not thousands, of those decisions may be invalid.

It’s an interesting read. Duffy says he’s done the research, and he’s quite sure that the very serious accusation–that the method for nominating judges to the Board of Patent Appeals and Interferences panel has been unconstitutional since it was changed in 1999–has lots of legal merit. As he says to Law.com, “I think the court has a pretty stark choice here. Do you say, ‘There’s this important entity of our government through which billions of dollars of economic rights are adjudicated and it’s unconstitutional,’ but ignore it? Or, do you confront it? I think the problem has to be confronted.”

Worse, Duffy’s filing, found here, notes that the procedural change that led to the problem was the result of hasty legislation that was, for all intents and purposes, rubber-stamped in Congress’ haste to both acknowledge the “increased importance of intellectual propertyto the national economy,” and to preserve its traditional lines of power and influence. Good work, as usual, Congress. In any case, it will be interesting, to say the least, to see what will come of this (and whether Duffy quietly disappears …).

UPDATE: Comments are back. Talk it up!

Filed under: Information, News, constitutional law, judges, patents | Post a comment

Oh, how embarrassing. I missed World IP day. I missed my opportunity to hold an event that could “increase public understanding of what IP really means, and to demonstrate how the IP system fosters not only music, arts and entertainments, but also all the products and technological innovations that help to shape our world.”

This was my big chance to embrace the aims of the World Intellectual Property Organization:

• to raise awareness of how patents, copyright, trademarks and designs impact on daily life;
• to increase understanding of how protecting IP rights helps promote creativity and innovation;
• to celebrate creativity, and the contribution made by creators and innovators to the development of societies across the globe;
• to encourage respect for the IP rights of others.

And may I just say how happy I am to have missed out on my chance to spread the Big Brother-like, cultish dogma of respecting intellectual property as the driving force of creation and its development to societies across the globe? After all, without severe, restrictive intellectual property laws like those that extend copyright terms to more than a century, there’s absolutely no way art, music, theater, and writing would ever have naturally occurred or propagated throughout society. Had there been, in fact, a free flow of ideas and the unfettered ability to derive further art and creation from existing works, why, we’d have stalled out completely as a society and limped ahead as a joyless, dark, Dickensian band of miserable urchins, bereft of the light and joy that music and the Olympic games brought into our lives.

Oh, wait. I’m sorry, that’s weird and brainwashy claptrap of the variety that’s only born when your laws have become so counterintuitive and so utterly and fundamentally perverted with respect to their original purpose that you have declare propaganda days in order to try to convince people that they should be followed. I think if your legislation so completely fails the “obviousness” test, as in “I obviously understand why that law has to exist in the form it does, even though I might prefer if it didn’t,” that you have to undertake campaigns to convince people of why it is needed, you might want to reconsider your legislation. Although, if your argument for why these laws are needed boils down to, simply, “so that rich people can continue to profit from their old ideas ad infinitum,” maybe propaganda is the only thing you’ve got.

Filed under: Rant, intellectual property, Rant, WIPO | 2 Comments

Everyone’s atwitter (no, literally, I saw it from like three people on Twitter) about the absolutely fabulous response from Kurt Denke, president of Blue Jeans Cable, to a cease-and-desist order from legendarily litigious Monster Cable. I urge you to read it in its entirety, as the writing, the sheer scope of his demands, and the breathtaking awesomeness of his righteous fury are something serious to behold. Some excerpts:

Take, for example, the patent you mark as Exhibit B.  The connector shown there is substantially different from the Tartan connectors in every respect, unless one ignores design specifics and focuses on the core attributes of the connector which are dictated by function.  If your view of Exhibit B is that it is to be construed broadly enough as to encompass the Tartan connector, it is very hard to imagine that there is such a thing as a solder-assembly style RCA plug which is not similarly, in your view, encompassed by this patent.   And, needless to say, it is very hard to imagine that any court would ever adopt such a view of the patent’s scope; if you file on this sort of basis, you are in Rule 11 frivolous-claim territory.

And the most awesome gauntlet-throwing of all, which comes after a long description of Denke’s legal bona fides:

I am “uncompromising” in the most literal sense of the word.  If Monster Cable proceeds with litigation against me I will pursue the same merits-driven approach; I do not compromise with bullies and I would rather spend fifty thousand dollars on defense than give you a dollar of unmerited settlement funds.  As for signing a licensing agreement for intellectual property which I have not infringed: that will not happen, under any circumstances, whether it makes economic sense or not.

 I say this because my observation has been that Monster Cable typically operates in a hit-and-run fashion.  Your client threatens litigation, expecting the victim to panic and plead for mercy; and what follows is a quickie negotiation session that ends with payment and a licensing agreement. 

THIS. IS. SPARTA!!!!!

Filed under: Information, News, cease-and-desist, Monster, trademark | 5 Comments

According to TorrentFreak, Neil Berkett, incoming CEO of Virgin Media, says he’ll happily slow down the Internet traffic of any media provider who doesn’t pay him a tidy little premium. In fact, he told the Royal Television Society’s Television magazine that if the BBC and and other public broadcasters don’t pay up for timely delivery of services like iPlayer, he’ll put them in the “bus lane.”

I believe it was Preston Gralla who first described the tiered-Internet scheme as “cyberextortion” back in 2006. Since then, the telecommunications industry has managed to re-shape the debate so that it’s less about blatantly demanding more money from companies who can afford to pay it and shoving those who either refuse to pay or can’t afford to pay into a slowpoke delivery lane, and more about responsible traffic management. That “responsible traffic management” bit? Is a crock. Check out Ars Technica’s brilliant analysis of the supposed bandwidth crunch, which concludes that “[i]n fact, the Internet backbone has plenty of capacity.” I’m actually thrilled that Berkett has finally put the conversation back where it started: with thuggish threats by ISPs to shut out small content providers, skew the Internet toward the haves and away from the have-lesses, and obvious and revolting money-grubbing.

The concept of the tiered Internet has always been only marginally about traffic management based on actual need, and more about traffic management based on actual need to make more money. The incremental revenue you see gleaming in the telecoms’ eyes comes from two sources: charging content providers who already pay for their access to the pipes over and above that amount for “guaranteed delivery” of their merchandise; and second, from rolling out their own content delivery in the form of, in Virgin Media’s case, digital TV. All that content would, of course, have a gleaming and well-paved high-speed road right to your doorstep. It’s a butt-naked conflict of interest to want to shape the pipes in favor of some traffic when that traffic includes content you yourself provide, and it’s nothing but the sheerest greed to demand that you be paid by content providers for access to the backbone, by consumers for access to the content, and then by the content providers again so that consumers can have a guarantee of actually accessing the content.

Berkett’s attitude serves only to weaken the telecoms’ stance in the Net neutrality debate and, more importantly, might help us avoid potentially bad regulation by doing the one thing that will ensure a truly neutral Net: enraging the customer. Virgin Media is currently the second largest ISP in the UK. The BBC’s iPlayer is, near as I can tell, the most popular multimedia service in the UK. So, a simple thing has to happen here. The BBC tells Berkett where he can stick his “bus lane,” iPlayer starts stuttering and choking Virgin Media customers, and those customers suddenly find a happy new home elsewhere. Thanks, Berkett, for making everything that much easier.

Filed under: News, Rant, ISP, Net neutrality, Virgin Media | 3 Comments

It appears that Wikileaks, most recently in the news after a Swiss bank got it briefly shut down for revealing “trade secrets,” is now drawing the copyright-related ire of the Church of Scientology. Wikileaks says it is “developing an uncensorable Wikipedia for untraceable mass document leaking and analysis,” and says it hopes the risks of conveying sensitive information about repressive regimes and unethical government and corporate information will be lowered using technology, encryption, and “untraceability.” It’s high-minded stuff, and the information on the site ranges from explosive to fascinating to (seemingly) innocuous and on to impenetrable. The site certainly gets under the skin of its targets, and most recently, the Church of Scientology is claiming that Wikileaks is violating its copyrights by publishing its Operating Thetan documents, which are considered the “biblical” material of the organization.

Not surprisingly, Wikileaks doesn’t plan to comply. More than that, though, they point to the Scientologists’ complaints as part of a pattern of abuse of the legal system that “aids and abets a general climate of Western media self-censorship, due to the fear of litigation costs,” as a Wikileaks rep told The Register.

Now, I find something about the Wikileaks rhetoric a bit off-putting, but I think they may have hit the nail on the head with this one. And the fact is that Scientology is far from the only cult that’s aiding and abetting media self-censorship. TechCrunch today points to an absolutely over-the-top DMCA takedown notice over what is clearly fair use of the YMCA song (you know, Village People?). In fact, the song itself isn’t even played — I’ll save you having to watch the video (as Arrington saved me) by telling you that the puppet simply sings a line. The result? A threat from Yahoo to remove all the user’s uploaded videos, cancel all his services, and deactivate his Yahoo account. Shame on Yahoo, sure, but they’re simply enacting the same policy YouTube and many others have–take down the offending material first, and deal with accuracy later. (You know, kill them all and let God sort ‘em out?)

And when faced with such a nuclear sounding option from Yahoo, you can see why someone who isn’t inclined to a fight might simply capitulate, and why many often do. Lawsuits are easy to threaten, relatively easy to file, and difficult and expensive to defend against. And we’ve created a copyright and intellectual property machine that makes lawsuits the veritable law of the land. Information may want to be free, but it’s getting awfully hard to free it. To that end, I guess, fight on, Wikileaks! (Also, seriously. You should go read some of that Scientology stuff. They crazy.)

Filed under: Information, News, copyright, DMCA, Scientology, takedown, Wikileaks, Yahoo | 4 Comments

Wired reports on a professor who’s suing one of those companies that repackages and sells student notes, claiming the notes themselves infringe on the professor’s copyrighted lectures. Note that the professor is not claiming that students who take notes are infringing–that, his lawyer very reasonably points out, is certainly fair use.

University of Florida professor Michael Moulton objects (well, and his e-textbook publisher, Faulkner Press, objects) to the fact that note-takers for the company called Einstein’s Notes would come to his classes and, when Professor Moulton would write down the bullet points of his lecture on a transparency projected to the class, the note-takers would write down those bullet points as well, and then work them into the notes that they advertised as a surefire way to get a good grade in Moulton’s class. That seems to be a valid claim, considering that it doesn’t sound like Prof. Moulton is switching things up a whole lot. (Oh, tenure. The right to give the same brilliant lecture for 10 or 15 years … it never gets old, right?)

Here are the two more interesting (or fury-inducing, depending on how you view it) elements of attorney James Sullivan’s arguments to Wired. First: Sullivan says that the act of writing the bullet points of the lecture onto the transparency during class creates a copyright on those bullet points–even if they are not the actual, literal substance of the lectures. The lectures have, apparently, been both published and copyrighted. Also, Sullivan claims that even if a student came to class and didn’t write down anything verbatim from either the lecture or the bullet points, then either sold or published those notes online, the notes would be considered derivative works and would be potentially infringing.

Sadly, the act of writing down the bullet points, according to the oddities of U.S. copyright law, probably does affix a copyright to them, and sadly, this case may indeed have some merit since the note-takers for Einstein’s Notes are indeed profiting from derivatives of Moulton’s work.

Obviously, Faulkner Press isn’t trying to end the practice of selling notes or study guides to students. They simply want to be the only ones to profit from selling Professor Moulton’s notes. It’s possible that the good professor himself might be a little offended at the degree to which students will go to both avoid class and also get a passing grade, which might have inspired him to jump on board with this lawsuit in the first place. But this is the type of irresponsible wielding of copyright law that creates even more outrageous precedent: Wired notes that, “[t]he suit could also have ramifications for more longstanding businesses such as Cliffs Notes, which summarize copyrighted novels.” If Cliffs Notes go just so that Faulkner Press and Moulton can keep their side revenues intact, what will happen to the very fabric of university education!?

Mostly, it’s just sad to see this type of ownership ethos extend into academia. Professors are proud and forced to “publish or die,” publishers are looking for ways to keep their revenue streams intact in the face of online study groups (which make note-sharing an even easier affair), not to mention textbook recycling or even pirating, and ultimately, materials that were created for the noble purpose of educating the young minds of America become stuck in a petty tug-of-war over who “owned” the thoughts in the first place. Some lesson.

(Thanks to zefyr for sending this one in.)

Filed under: News, Rant, copyright, universities | 6 Comments