Copyright

How Bitcoin’s Technology Could Revolutionize Intellectual Property Rights

24 March 2015

From CoinDesk:

The bitcoin block chain is well known for its use as a ledger for digital currency transactions, but it has the potential for other, more radical uses too – uses that are only now beginning to be explored.

The online service Proof of Existence is an example of how the power of this new technology can have applications far beyond the world of finance, in this case, giving a glimpse of how bitcoin could one day have a substantial impact in the fields of intellectual property and law.

Although in its initial stages, Proof of Existence can be used to demonstrate document ownership without revealing the information it contains, and to provide proof that a document was authored at a particular time.

. . . .

Proof of Existence allows users to upload a file and pay a transaction fee to have a cryptographic proof of it included on the bitcoin block chain. The actual file is not stored online and therefore does not risk unwanted publication of the user’s material.

After anonymously uploading the document and paying the network fee, a hash of the document (or any other type of digital file) is generated as part of the transaction.

a1

. . . .

This, in effect, uses the public and ledger-like nature of the block chain to store the proof of your file, which can later be verified should an issue of authorship or dating arise.

“Basically, by inserting the cryptographic hash of the document in a transaction, when that transaction is mined into a block, the block timestamp becomes the document’s timestamp,” said Aráoz.

As well as time-stamping, Proof of Existence is also a way to make sure that files are what they are supposed to be.

As Proof of Existence says: “All we store is a cryptographic digest of the file, linked to the time in which you submitted the document. In this way, you can later certify that the data existed at that time.”

. . . .

Given this potential, it’s possible that the implications of solutions like Proof of Existence might be even more valuable than the per-bitcoin price many investors are fixated upon today.

Digital property can sometimes also be considered intellectual property, and block chain technologies could essentially prove ownership of such digital property, according to Aráoz, who explained:

“For example, if you are writing a paper or you have an idea for a patent, in some cases you need to prove that you owned the idea or the paper before someone else.”

Link to the rest at CoinDesk and thanks to L for the tip.

PG always likes cool new digital ways of doing old tasks, but he has to point out a couple of things:

1. For copyright purposes, there is seldom a problem with two people coming up with the same copyrightable work at the same time.

Remember, you don’t copyright ideas, you copyright the unique expression of ideas. Boy meets girl, boy loses girl, boy gets girl (or the reverse or Tramp meets Lady or amoeba meets amoeba) is not copyrightable because it’s just an idea. There are a zillion different copyrighted books, short stories, poems, movies and TV shows based upon the identical idea or variations thereof.

You’ll want to register your book with the US copyright office under any circumstances, so you may as well use them to certify when you wrote the book because they’re the gold standard.

2. For patent purposes, the US formerly had a first-to-invent standard where the first person to invent a patentable item was entitled to obtain the patent. This lead to some epic fights when inventors were independently working in the same field at the same time. Litigation about who first invented the laser, for example, relied on hand-dated notebooks describing elements of the invention.

While first-to-invent made for better stories, in 2013, the US joined most of the remainder of the world in awarding patents to the first inventor to file an application describing the invention, not the first to invent.

3. Finally, although PG loves this use of the BitCoin algorithm, if you search for digital notary on Google, you’ll find lots of other ways of obtaining a reliable and tamperproof or tamper-resistant date stamps on a document like a manuscript.

Sony fails to knock out 19’s Idol stars lawsuit

19 March 2015

From CMU:

Sony Music has failed to have a wide-ranging lawsuit filed by 19 Entertainment a year ago dismissed, though some elements of the case have been thrown out.

As previously reported, ‘American Idol’-owning 19 Entertainment, which also manages many of the finalists that appeared on the talent show franchise, last year sued Sony Music, which traditionally signed ‘Idol’ winners, claiming that it had found “systemically incorrect calculations” on two separate audits of royalty payments made by the major. It then added that the record company had failed to allow 19’s bean counters to access all the data they required to do a full audit.

. . . .

As previously noted, 19’s litigation includes one of the big fat debates of the moment in artist management circles, whether digital income should count as ‘licensing’ or ‘sales’ income with artist contracts that don’t specifically mention downloads and/or streams.

It’s an important distinction, because artists traditionally get a much bigger cut of the loot with licensing money that they do with sales income. Labels say that downloads and streams should be classified as sales for royalty purposes, but many heritage artists point out that what the labels negotiate with iTunes and Spotify are definitely ‘licensing deals’.

And this issue is one that will be allowed to proceed, potentially giving more court time to a dispute that has been subject to countless lawsuits and artist/label deals (some public, most under the radar), but which has generally had little judicial consideration, except in the famous FBT Productions case against Universal, which the majors have always insisted doesn’t set a precedent.

Among the other elements of the case also allowed to proceed is another favourite with artist managers and lawyers, the way labels sometimes confuse things when money moves between global subsidiaries, this time in relation to advertising spend. 19 accuses Sony of using “sleight of hand” tactics to reduce its royalty obligations to its artists.

Link to the rest at CMU

PG notes that since this case is in New York, it has the potential to provide some rulings that could impact a lot of tradpub publishing contracts.

Memphis Publisher Sues Salinger Estate

18 March 2015

From Publishers Weekly:

Memphis-based independent publisher The Devault-Graves Agency filed a lawsuit against the J.D. Salinger Literary Trust in a Tennessee court on March 16, claiming that the estate has, without legal basis, thwarted the press’s attempts to publish and distribute international editions of its collection of early Salinger short stories, Three Early Stories.

Devault-Graves released the U.S. edition of the title, which includes three stories from early in Salinger’s literary career which had fallen into the public domain, in July 2014. A culmination of what the publisher’s Tom Graves described to PW in July as an “exhaustive” and expensive process that involved a team of copyright lawyers, the book is, he said, the first legitimate Salinger book to be published in more than 50 years. Upon its release, the Salinger estate, after a brief investigation, confirmed it would not halt Devault-Graves’s publication in the U.S. But now, as the publisher attempts to sell the work abroad, Devault-Graves asserts the estate is “tortiously interfering with [its] contractual agreements with foreign publishers,” including those in the U.K. and Japan.

For its part, the Salinger estate contends that Devault-Graves is of the “erroneous view” that because the stories were in the public domain in the U.S., they would also exist in the public domain in countries where they were not previously published.

Link to the rest at Publishers Weekly and thanks to Ryan for the tip.

One apartment complex’s rule: You write a bad review, we fine you $10k

12 March 2015

From Ars Technica:

Trying to control customer opinions online is nearly always a losing game for a business, and there’s now a long line of cases where it has backfired on companies. We uncovered a new example this month, when a reader contacted Ars Technica to show us the “Social Media Addendum” that his Florida apartment complex, called Windermere Cay, included in his lease.

The Social Media Addendum, published here, is a triple-whammy. First, it explicitly bans all “negative commentary and reviews on Yelp! [sic], Apartment Ratings, Facebook, or any other website or Internet-based publication or blog.” It also says any “breach” of the Social Media Addendum will result in a $10,000 fine, to be paid within ten business days. Finally, it assigns the renters’ copyrights to the owner—not just the copyright on the negative review, but “any and all written or photographic works regarding the Owner, the Unit, the property, or the apartments.” Snap a few shots of friends who come over for a dinner party? The photos are owned by your landlord.

. . . .

Not only is such a contract unenforceable, but it could expose anyone promulgating it to legal repercussions, Santa Clara University Law Professor Eric Goldman explained.

“It would be a terrible idea to enforce this in court. A judge is going to shred it,” Goldman said in an interview. “If a person posts an Instragram photo of them having a party in their apartment, the landlord is saying they own that as well. The overreach reinforces that this clause is bad news, and it may be actionable just to ask.”

. . . .

 It’s been clear that such contracts are legally questionable since at least 2003, when the New York v. Network Associates decision came out. In that case, a judge found that telling customers they couldn’t publish reviews of software “without prior consent” violated New York’s unfair competition law. In Goldman’s opinion, “no review” contracts like the one pushed by Windermere could also lead to legal trouble under federal law, since the FTC Act bars “unfair and deceptive” business practices.

Goldman has written about some of the most notable attempts by businesses to squelch customer reviews, although he said the Windermere Cay Social Media Addendum is the first time he has seen such an attempt in the landlord-tenant context.

Link to the rest at Ars Technica

PG hadn’t heard about New York’s Unfair Competition law, so he did a little research (a little research can be a dangerous thing for a lawyer assisting a client, not so much for a blogger).

From The New York Litigation Guide:

We have long recognized two theories of common-law unfair competition: palming off and misappropriation.” ITC Ltd. v. Punchgini, Inc., 9 N.Y.3d 467, 476 (2007).

  1. Defendant misappropriated the fruits of Plaintiff’s labor by obtaining access to plaintiff’s ideas through fraud or deception, or the abuse of a fiduciary or confidential relationship; and
  2. “(1) that the defendant’s activities have caused confusion with, or have been mistaken for, the plaintiff’s activities in the mind of the public, or are likely to cause such confusion or mistake; or (2) that the defendant has acted unfairly in some manner.”

KG2, LLC v. Weller, 105 A.D.3d 1414, 1415 (4th Dep’t 2013).

. . . .

Misappropriation is “[t]he principle that one may not misappropriate the results of the skill, expenditures and labors of a competitor has . . . often been implemented in [New York] courts.” ITC Ltd. v. Punchgini, Inc., 9 N.Y.3d 467, 477 (2007).

“‘While [t]here is no complete list of the activities which constitute unfair competition, [t]he general principle . . . is that commercial unfairness will be restrained when it appears that there has been a misappropriation, for the commercial advantage of one person, of a benefit or property right belonging to another.’” IDG USA, LLC v. Schupp, No. 10-CV-76S(F), 2012 U.S. Dist. LEXIS 151554, at *31-32 (W.D.N.Y. Oct. 21, 2012).

Link to the rest at The New York Litigation Guide

PG did a little research because he immediately thought about the non-compete clauses included in the contracts of every large New York publisher. Basically, these clauses say something like “author shall not publish any book that might compete with (the books subject to the contract).” These same contracts also specify that New York law will apply to them.

Since the non-compete clauses are included in contracts that last for the full term of the copyright – the rest of the author’s life plus 70 years in the US – PG wonders if such non-compete clauses represent “a misappropriation, for the commercial advantage of one person, of a benefit or property right belonging to another” or that the publishers have “acted unfairly” under the relevant law and cases.

PG will warn all and sundry visitors that this isn’t a legal opinion or even a legal speculation, just a blog post.

WordPress Wins $25,000 from DMCA Takedown Abuser

7 March 2015

From TorrentFreak:

Automattic, the company behind the popular WordPress blogging platform, has faced a dramatic increase in DMCA takedown notices in recent years.

Most requests are legitimate and indeed targeted at pirated content. However, there are also cases where the takedown process is clearly being abused.

To curb these fraudulent notices WordPress decided to take a stand in court, together with student journalist Oliver Hotham who had one of his articles on WordPress censored by a false takedown notice.

Hotham wrote an article about “Straight Pride UK” which included a comment he received from the organization’s press officer Nick Steiner. The latter didn’t like the article Hotham wrote, and after publication Steiner sent WordPress a takedown notice claiming that it infringed his copyrights.

. . . .

The case is one of the rare instances where a service provider has taken action against DMCA abuse. The defendant, however, failed to respond in court which prompted WordPress to file a motion for default judgment.

. . . .

“Steiner’s fraudulent takedown notice forced WordPress to take down Hotham’s post under threat of losing the protection of the DMCA safe harbor,” WordPress argued.

“Steiner did not do this to protect any legitimate intellectual property interest, but in an attempt to censor Hotham’s lawful expression critical of Straight Pride UK. He forced WordPress to delete perfectly lawful content from its website. As a result, WordPress has suffered damage to its reputation,” the company added.

Link to the rest at TorrentFreak and thanks to Paul for the tip.

Update from Becca

6 March 2015

Regular visitors will remember Becca Mills’ post about dealing with a scammer who filed a DMCA Takedown Notice with Amazon, causing Becca’s book, Nolander, to be removed from sale:

Here’s an update PG received from Becca:

Dunno if it was my email to Jeff Bezos or the 20 emails other people on Kboards sent, but Amazon has agreed to restore Nolander to sale.

Here’s a link to Nolander back on sale

Independent Publishing and DMCA Abuse, or “How a Scammer got My Book Blocked with Very Little Effort”

3 March 2015

From author Becca Mills:

Okay, I’ve got a story. It’s a sort of scary one. I think independent/self-publishing authors need to know about it, and telling it carefully and correctly is also important for my own situation, so I’m going to take my time and lay it all out in order.

. . . .

On Friday, February 27, 2015, I noticed that my bookmarked Amazon.com link to my first novel, Nolander, was yielding, “We’re sorry. The Web address you entered is not a functioning page on our site.” I went to my Amazon dashboard and discovered the book had been blocked.

In my spam folder, I discovered an email from Kindle Direct Publishing (KDP), Amazon’s self-publishing arm, informing me that someone had sent in a DMCA notice. In response, Amazon had summarily blocked Nolander from sale.

“DMCA” stands for “Digital Millennium Copyright Act.” It’s a Clinton-era U.S. law that lays forth a process for dealing with copyright infringement online. If you find material online that infringes a copyright you hold, you can send the hosting website a DMCA notice; in order to be in compliance with U.S. law, the hosting website has to remove the material and notify the person who posted it.

When I heard a DMCA notice had been filed against Nolander — which is a completely original work — I assumed a reader had reacted badly after reading the book in a boxed set and then finding it available as a standalone. It could be confusing to find the same material in different places, after all. A vigilant reader might think something fishy was going on. So I wrote back to KDP, sending them my U.S. copyright registration info and assuring them that Nolander was my work.


Soon after, I found an email notification from Smashwords as well. That one was a little more informative:

Hi [my real name redacted],

I have just unpublished your book Nolander, formerly found here:https://www.smashwords.com/books/view/272292

As we received a DMCA Notice and I was able to verify that the text in your book, published on Jan. 07, 2013, matched the text of a book made public on August 2nd, 2011.

If you have any questions or can give me critical information about the book, please do.  Per our policy, the book needs to remain unpublished until Smashwords is given consent by both parties to republish it.

Thank you for your understanding.

Cheers,

*[name redacted] – Smashwords Support Team*

. . . .

Also in my email was a notification for a pending comment on my website (I have to personally approve comments from first-time commenters):

Kelvin

February 28, 2015 at 3:21 AM

I can’t find Nolander on Amazon. The link is returning “Page Not Found”. I only found a Print Edition on Amazon which cots $15 ! But I find Nolander on other stores like B&N.

Have you removed your book from Amazon? Sorry but I only download or buy books from Amazon. Please consider your decision again.

. . . .

At that point, KDP got back to me:

Hello,

As stated in our previous communication, we’ve received notice from a third party regarding copyright concerns over B007R6PPZA Nolander (Emanations, an urban fantasy series Book 1) by Becca Mills. We don’t involve ourselves in third party disputes and therefore have removed the availability of the book through our systems until this matter is resolved.

Here you will find information on the party that submitted the notice:

Rajesh Lahoti

theeroticaauthor@gmail.com

If a resolution is reached, before we may take any appropriate action regarding the book(s), all involved parties must contact us via title-submission@amazon.com.

Best Regards,

[name redacted]

Amazon.com

Link to the rest at The Active Voice

PG doesn’t give legal advice on The Passive Voice, but he would suggest giving serious consideration to sending a counter-notification if someone files an improper DMCA Take-down Notice.

See this page for a good explanation of DMCA takedown notices and counter-notices.

 

Industry Issues Intrude in ‘Blurred Lines’ Case

2 March 2015

From The New York Times:

Before a special audience in Los Angeles last week, the velvet-voiced pop singer Robin Thicke performed his 2013 hit “Blurred Lines,” ran through a medley at the piano and discussed artistic inspiration.

Mr. Thicke’s stage was not an arena or a nightclub, but rather a federal courtroom where he is part of a lawsuit over copyright infringement that has gripped the music industry and revived perennial questions about when a song crosses the line from homage to outright plagiarism.

The case, which continues this week, pits Mr. Thicke and his two credited co-writers of “Blurred Lines,” Pharrell Williams and the rapper T.I., against the family of Marvin Gaye. The family accuses Mr. Thicke and his colleagues of using distinct musical elements of Gaye’s 1977 hit “Got to Give It Up” without permission.

Copyright cases can be esoteric affairs. But the “Blurred Lines” trial, which began Tuesday before Judge John A. Kronstadt in United States District Court for the Central District of California, has provided a rare window into an unseemly and embarrassing side of the music industry. Testimony and a flurry of pretrial documents have revealed lurid details of drugs, unearned songwriting credits, and intentional deception of the news media employed as a standard promotional practice.

Mr. Thicke has been the most affected by the revelations, many of which he has made himself. On Wednesday, he testified that despite his official credit, he did not write “Blurred Lines,” an upbeat tune that dominated pop radio in the summer of 2013. Instead, Mr. Thicke said, the song was largely written by Mr. Williams.

“The biggest hit of my career was written by somebody else, and I was jealous and wanted credit,” Mr. Thicke testified, according to news reports. “I felt it was a little white lie that didn’t hurt his career but boosted mine.”

Mr. Williams, who was present in court at the beginning of the trial and is expected to testify this week, has acknowledged the issue of incorrect credit with a shrug. “This is what happens every day in our industry,” he said in an earlier deposition in the case.

. . . .

The lawsuit has drawn attention not only for the fame of the parties involved but also because of what legal experts said was the relative rarity of an infringement case that goes to trial. Accusations of plagiarism are common, these experts said, but are often settled quietly to avoid embarrassment and further expenses.

“There is an old saying in the music business,” said Kenneth J. Abdo, a music lawyer who is not involved in the “Blurred Lines” case, “that if you get a hit, you will get a writ.”

. . . .

 Rulings by Judge Kronstadt have limited the scope of the case to the sheet-music versions of both songs — meaning that any infringement must be decided only on the basis of chords, melodies and lyrics, not on the sound of the songs’ commercial recordings.

. . . .

 “Even if they didn’t sample Gaye directly, it’s so similar that you could have predicted that this would happen,” said Sway Calloway, the MTV News personality. “The irony is that it’s supposed to be an homage. But you still have to follow the rules. If you’re going to take from someone else’s creation, then you may have to pay the piper.”

Link to the rest at The New York Times

On Copyright Again

2 March 2015

From Joe Konrath:

Last summer I wrote about the need to reform copyright.

. . . .

I talked about how fun it would be to write a comic where Superman, Hulk, and Spawn fight, but how that isn’t ever going to happen.

DC owns Superman. Marvel owns Hulk. Image owns Spawn.

Since none of these characters are in the pubic domain, the only way to use them is with a license. But that’s only one level of restriction. Even with an approved license, licencors will have rules. The few existing Marvel-DC/Hulk-Superman fights have been lackluster at best. That’s because the rules imposed by the licensor override any creative freedom on the part of the author/artist.

Writers who work for a specific comic company have rule sheets and bibles for what is allowed and what isn’t. Unless special exceptions are given, there are boundaries. It’s stifling creatively.

. . . .

How interesting it would be if fair use allowed writers to use the IPs of others. Let’s say it was a limited use; maybe 15% of the completed protect. It would still be a game-changer.

. . . .

We live in a world where artists are regularly screwed by publishers, producers, and record labels, but it’s okay because they signed on the dotted line, even though the contract sucked. But then we have a ridiculous double standard, where heirs and companies can hold onto the rights to Mickey Mouse and Sherlock Holmes and Carmina Burana for long after the original artists died.

I know I’m bringing up a lot of ideas here, some of them possibly conflicting, so let me highlight a few points:

  • When an artist dies, any IP they created should revert to heirs.
  • If that IP is currently being exploited by a company (producer, label, publisher) it should still revert. Artist dies, contract is over.
  • Once reverted, heirs are allowed to hold that copyright for a minimal amount of time. Say 40 years. But they don’t have a say in how that copyright is used.
  • Once reverted, any other artist or producer can use that IP in a commercial version of fair-use. I’ll propose that if a certain percentage of the IP is used in a certain percentage of a new work, the heirs get a certain percentage of profits associated with that work, or certain set fees if that work is for advertising purposes.
  • If the artist is still alive, there should still be commercial fair use laws. Perhaps stricter than what the heirs have, but other people should still be able to use what the artist has done. I point to my Jack Daniels & Associates Kindle World as an example of that. Go ahead and use what I created, however you’d like, but pay me some set percentage.

Link to the rest at Joe Konrath

You Bought the Rights to that Music, Didn’t You?

27 February 2015

From author Jacquelyn Lynn via Tuscawilla Creative Services:

We have written before about how important it is to either own or acquire the rights to use the material on your website. The same applies to anything you post online, including videos on YouTube.  It’s the ethical and legal thing to do and it’s the standard by which we operate for ourselves and our clients.

So you can imagine how we reacted when we were accused of using copyrighted music without permission. Here’s the story:

Earlier this year, we produced a short video that was designed to promote our video production capabilities and generate some residual income. To set the right tone for the video, we needed some music that was peppy but didn’t overpower the visual image.

I looked through the royalty-free music in our files and found the perfect clip. It was “Lawn Barbecue,” a short, upbeat Bluegrass tune. I had purchased the rights to use it last year from Sony Creative Software’s Sony Sound Series/Production Music. With the music track added, I uploaded the final product to our YouTube channel.

Immediately after the upload was complete, we received a notification from YouTube that there was a copyright claim on the music clip.

. . . .

Filing a copyright claim on media uploaded to YouTube allows the claimant to do one of three things:

(1) they can take down the entire video;

(2) they can strip out the entire soundtrack (or just the portion in question); or

(3) they can leave the video intact, place ads on it and have the entire proceeds from those ads directed to themselves.

The entity uploading the video (in this case, Tuscawilla Creative Services) is prevented from deriving any income from it even though the element in question represents a small part of the total.

. . . .

I searched the Organic Music Library website for the piece of music they were calling “Jubilation.” To my surprise, I found it listed among hundreds of other tunes. The contributor was listed as David Lawrence.

To my even greater surprise, when I listened to the “Jubilation” clip, it was (to my ear) identical to the clip I had purchased called “Lawn Barbecue” – not just the same melody, but the same recording.

Armed with this information, I disputed Audiam’s copyright claim with YouTube. I provided all the information my research revealed along with the confirmation number for my purchase of the rights to “Lawn Barbecue” from Sony.

After about ten days, I received an email from YouTube with this terse statement: “After reviewing your dispute, Audiam (Label) has decided that their copyright claim is still valid.” Interesting. And frustrating. I felt like I was trying to walk through a room full of baited mousetraps.

Link to the rest at Tuscawilla Creative Services

Here’s a link to Jacquelyn Lynn’s books

PG can’t comment on Jacquelyn’s particular situation, but generally speaking, if the owner of a copyright sees an infringing use posted to an online service provider like YouTube by a third party, in the US pursuant to the Digital Millennium Copyright Act, the copyright owner can file a takedown notice.

If the service provider promptly takes down the offending material, the service provider won’t be liable for copyright infringement.

Upon receiving a copy of the takedown notice from the service provider, if the party that posted the alleged infringing material provides a counter-notice under 17 U.S. Code § 512 (g), the service provider is required to repost the alleged infringing material within 10 days.

For much more information on takedown notices in (relatively) plain English, see the Electronic Frontier Foundation.

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