Copyright/Intellectual Property

Case of ‘fattened’ Jorge Luis Borges story heads to court in Argentina

11 January 2017

From The Guardian:

One of the best-known stories by the Argentinian author Jorge Luis Borges takes the form of a fake literary essay about a Frenchman who rewrites a section of Don Quixote word for word and is showered with praise for his daring.

It is probably safe to say that Borges’s 79-year-old widow, María Kodama – sole heir and literary custodian of his oeuvre – takes a dimmer view of such rewrites.

The novelist and poet Pablo Katchadjian is facing trial for “intellectual property fraud” after publishing a reworking of Borges’s 1945 story The Aleph. The Fattened Aleph – originally published by a small press in 2009 – extended Borges’s work from its original 4,000 words to 9,600.

Most of the alterations consist of the addition of adjectives and descriptive passages and do not change the original plot, which revolves around a “a small iridescent sphere” in a Buenos Aires basement, through which a person can see the entirety of creation.

. . . .

After five years, a court hearing has finally been set for 14 February, and the judge in the case appears to be leaning in Kodama’s favour. “The alteration of the text of the work by Borges is evident,” Judge Guillermo Carvajal stated in his ruling for a trial.

Kodama’s lawyer Fernando Soto dismissed Katchadjian’s claims that the work was a literary experiment. “Only Katchadjian’s name appears on the cover. It doesn’t say ‘The Aleph by Borges, altered by Katchadjian’. Borges is not mentioned in the index or the copyright page either. The only place Borges appears is in a brief postscript at the end of the text,” Soto said.

. . . .

Katchadjian has rarely spoken in public about the case (and did not respond to an interview request), but he did discuss it at at an event last year at the National Library in Buenos Aires.

“The Fattened Aleph is not plagiarism because no plagiarism is open about its source,” Katchadjian said. “Neither is it a joke that went wrong, or one that went right. It is a book I wrote based on a previous text.”

. . . .

Katchadjian’s laywer, Ricardo Strafacce, said he was confident the lawsuit would not prosper. “Legal forensic experts have already established that The Fattened Aleph is a new work of art. Secondly, the court will also take into account that there was no intent by Katchadjian to deceive the reader as to Borges’s authorship of the original The Aleph, which is clearly stated in Katchadjian’s book.”

Link to the rest at The Guardian

Defending Copyright on “A Summer Fling”

4 January 2017

From author Sarah Madison:

A lot of people have asked for the details surrounding my current copyright dilemma with Amazon. Here they are to the best of my recollection:

As you can see from the book cover and the banner at the head of this website, there has been a longtime connection between myself and A Summer Fling. It was originally titled Surf’s Up and is part of the 2011 Don’t Read in the Closet fest with the M/M Romance Group on Goodreads. It was a light frothy story written to a photo prompt and included in the anthology produced by the group.

In 2013, I edited the story and bundled it with a short story I’d written for the Just One Bite contest, using the fictional character Mikhail Frost created by my fictional author, Ryan McFarland. I thought it would be fun to put the two stories together–kind of like Rick Castle writing the Nikki Heat stories. I created a cover based on my website’s banner and submitted the new combination to Smashwords on July 28th, 2013. A short while later (the actual date is unclear–I can’t access it any longer on the websites in question), I submitted the story to Amazon and ARe. The story has largely been a permanent freebie ever since.

Over the weekend, I modified my bio within the story to include a link for my website. When I went to upload the new version on Amazon, I could no longer set the price to zero. I didn’t worry too much about it–I’d pulled it from Smashwords and ARe had folded. It was my intention to place it in KU (though in retrospect, its previous incarnations would prevent that) so I left the price as 99 cents and went on with my day.

That evening I received an email from Amazon. At first, I thought it was just a glitch, a red flag triggered by something I did in the update. But here’s the crucial statement that belies that:

“Prior to your submission, we received a notice and takedown for a book that matches to yours, from a third party claiming that the distribution of the book above was not properly authorized due to copyright infringement.”

So someone out there is ACTIVELY claiming this work belongs to them, not me, and though I provided Amazon with all the information they requested, it’s not good enough. Moreover, this attempt to snag the book took place prior to my making changes, so it isn’t that I did something to trigger a red flag. Someone is trying to steal it, but Amazon is laying the burden of proof on me and refusing to publish something that’s been on their website under my name for years. At least they are no longer threatening to ban me for life. I’ve asked for more information, but I have not heard back from them yet.

Process of elimination and the unethical behavior of All Romance Ebooks makes them the most likely suspect in my mind. Not just because they closed their doors with little warning, offering 10 cents on the dollar in owed royalties, but only if we promise not to take legal action. Not just because of the timing–within 24 hours of ARe’s closure. But because whoever this third party is laying claim to my story, they have a strong enough stance that Amazon is taking them seriously–despite my sending them all the information they requested to prove my copyright.

Link to the rest at Sarah Madison and thanks to P.D. for the tip.

Here’s a link to Sarah Madison’s books. If you like an author’s post, you can show your appreciation by checking out their books.

Only one thing

3 January 2017

Only one thing is impossible for God: To find any sense in any copyright law on the planet.

Mark Twain

Facebook Faces Copyright Issues Amid Video Explosion

3 January 2017

From Copyright and Technology:

It’s fairly well established by now — thanks to court decisions like Viacom v. YouTube and UMG v. Veoh — that online service operators have no legal duty to proactively police their services for potential copyright infringement.  But that doesn’t mean that some services don’t do it anyway.  The biggest example is Google’s Content ID system for YouTube, which uses fingerprinting technology to flag uploads that contain copyrighted material.

The reason why Google implemented Content ID (in 2007) is simple: Google figured out a way to make money from it.  Copyright owners can choose to allow their content to be uploaded and take a share of revenue from ads that Google places in or alongside the video clips.  The major record companies participate in this arrangement for the vast majority of their content.  They aren’t thrilled with the per-stream revenue they are getting, but both sides agree that it’s better than having YouTube just block everything that matches.

Enter Facebook. Over the past couple of years, Facebook has become a bigger and bigger video-sharing service, one that is starting to rival YouTube in audience size and arguably exceed it in audience engagement.  This has led to “freebooting,” or capturing video streams from YouTube and re-posting them on Facebook.  And not just major record label or Hollywood studio content, but any popular YouTube video.

After a crescendo of complaints from native YouTube stars as well as the music industry, Facebook announced that it would be building a “Rights Manager” system based on the Audible Magic fingerprinting technology that it has been using for years to scan uploaded audio.  (YouTube also used Audible Magic before Content ID was implemented based on its own technology.)

Facebook’s Rights Manager allows copyright holders to “claim” their content and decide what they want Facebook to do with it.  Yet unlike Google’s Content ID, Rights Manager ultimately allows only two options: just allow the upload (and offer usage statistics to the copyright owner), or report it to the copyright owner as a potential violation.  There is no option to block the upload automatically.  Instead, rights holders must receive notices of matched content and then issue takedown notices to Facebook using Facebook’s DMCA process; then Facebook will “promptly remove those videos in response to valid reports.”

. . . .

The NMPA (National Music Publishers Association, the trade group for U.S. music publishers) has raised concerns about the growing amount of videos of cover versions of copyrighted songs (compositions) being uploaded on Facebook without licensing.  Recording a cover version of a song that’s in copyright normally requires a mechanical license from the music publisher.  Under the law, the publisher can’t refuse to grant the mechanical license, but the performing artist must notify the publisher (if the publisher is known), and the artist must pay a standard royalty.

This requires that Facebook detect cover versions of musical compositions.  Audible Magic can’t do that. Acoustic fingerprinting technology is good at matching recordings, but it’s not designed to match cover versions of compositions.

Link to the rest at Copyright and Technology

What Does Ownership Mean in the Digital Age?

22 December 2016

From Copyright and Technology:

When you hit a “buy” button on Amazon, iTunes, or another digital content retail service, do you actually own what you’ve paid money for?  If you look at most retailers’ terms of service, the answer is no: you are licensing it on some terms that the retailer sets, which usually don’t amount to ownership.  In their important new book, The End of Ownership: Personal Property in the Digital Economy, legal scholars Aaron Perzanowski and Jason Schultz assert that this is a problem, and that the law is the best way to solve it.

. . . .

[The book] raises this fundamental issue: as more and more objects in our daily lives incorporate software, and that software is conveyed to people under contract (license) and not ownership, we don’t really own those objects anymore.  Instead, we’re subject to limitations on our use and handling of those objects that are imposed by both law and technology.  DRM is the shorthand they use for that technology, even though some of it doesn’t fit the classic definition of DRM.

The authors take it as axiomatic that ownership is an important concept that needs to be preserved in the digital age — at least as a choice we can make when we obtain goods (physical or digital).  The book starts out with an explanation of the three types of property that the law recognizes: real property (like real estate), personal property, and intellectual property.  We have a longstanding intuitive grasp of these types of property; Perzanowski and Schultz explain how laws embody and facilitate that understanding.  They explain differences among these types of properties in terms of the balance of rights between owners and non-owners and, more importantly, what happens when you alienate (sell, give away, lend, or rent) your property.

The legal construct of exhaustion covers this.

. . . .

Perzanowski and Schultz say that it’s important to establish an ownership right in law, which should allow users to use and alienate digital property in any way they choose.  That includes interoperability across “walled gardens” like Amazon’s Kindle e-book or iTunes’s movie ecosystems as well as the right to resell files.

. . . .

Instead, their proposed solution is to create a law for digital first sale along the lines of current fair use law.  The fair use law (Section 107) contains four factors that a court should consider when deciding whether a copy that a defendant in a copyright litigation made is lawful. One of those factors is the effect that the use has on the market for the work being copied.  Similarly, Perzanowski and Schultz’s digital first sale law contains several test factors, one of which is whether the alienation affects the market for the work.  They point out that copyright law already sets exhaustion boundaries for music and software by preventing rental, lease, or lending.

Link to the rest at Copyright and Technology and thanks to Ruth for the tip.

Feds charge porn-troll lawyers in major fraud, extortion case in Minneapolis

17 December 2016

From The Minneapolis Star-Tribune:

A Minnesota lawyer who has drawn scorn for his tactics in filing porn copyright lawsuits and disability litigation has been indicted alongside a longtime partner in a multimillion-fraud and extortion conspiracy that counted as its victims hundreds of people nationwide and the court system itself.

Authorities arrested Paul Hansmeier, 35, of Woodbury, and John L. Steele, 45, an attorney in Illinois who was a former classmate of Hansmeier’s at the University of Minnesota Law School, shortly before U.S. Attorney Andrew Luger announced charges Friday morning. Hansmeier was arrested in the Twin Cities; Steele, who has lived off and on in Florida, was arrested in Fort Lauderdale.

They were charged Wednesday in an 18-count indictment with running a multimillion-dollar extortion fraud scheme between 2011 and 2014. The charges, unsealed Friday, include conspiracy to commit mail and wire fraud, conspiracy to commit and suborn perjury and conspiracy to launder money.

“In order to carry out the scheme, the defendants used sham entities to obtain copyrights to pornographic movies — some of which they filmed themselves — and then uploaded those movies to file-sharing websites in order to lure people to download the movies,” the indictment says.

. . . .

Hansmeier and Steele collected about $6 million from legal settlements in copyright-infringement lawsuits they had filed against people who allegedly downloaded pornographic movies online — films to which the men’s companies had ostensibly purchased or filed copyrights, the indictment says.

In an order awarding attorneys’ fees, bonds and a punitive multiplier against Hansmeier and associates, U.S. District Judge Otis D. Wright in Los Angeles found that Prenda Law began its “copyright-enforcement crusade” in about 2010. It set up shell companies that bought copyrights to pornographic movies and made them available on online through file-sharing protocols like BitTorrent. Prenda Law, or a local attorney it hired, sometimes through Craigslist, would then file federal lawsuits against the “John Doe” internet addresses captured during the downloads of the films. They then sought to subpoena the internet Service Providers for the identity of the users.

They offered to “settle” the lawsuits for an average of about $4,000. Otherwise, they threatened public exposure and penalties under copyright laws of as much as $150,000.

“Think about how ingenious this scheme was,” Luger said, pointing to a copy of one letter blown up on a large poster board. “It worked to the tune of millions of dollars, person after person, victim after victim who was extorted to make this payment in order to make the entire problem go away.”

Link to the rest at Minneapolis Star-Tribune

PG hopes everyone involved spends a long time in the penitentiary.

US Congress seeks small claims track for copyright claims

10 December 2016

From The Register:

The US Congress has published plans backed by both main US parties to reform the Copyright Office – and it wants your views. Amongst the proposals is a small claims track to make fighting The Man easier.

Technology has allowed millions more people to share their craft, but most independent creators can ill afford lawyers. The giant internet platforms have amassed their wealth largely through ensuring people don’t assert their property rights. So cheaper access to justice is a long overdue reform that should keep everyone happy. The House’s Judiciary Committee recommends that the Office should:

“Host a small claims system consistent with the report on the issue released by the Copyright Office. The small claims system should handle low value infringement cases as well as bad faith Section 512 notices. The Register [that’s the Copyright Register, not us] should be given the authority to promulgate regulations to ensure that the system works efficiently.”
Better tools for identifying material would remove much if not all of the problem of bogus 512 DMCA notifications – but The Circle Google maintains this would break the internets. The House notes that a database of ownership information and metadata are practical ideas the would help.

. . . .

The House also wants the copyright administrator to beef up its economic know how, by hiring a chief economist, and have its own independent IT functionality. This is prudent, given the conflicts of interest that might arise from outsourcing IT at America’s copyright agency to a cloud company that exploits loopholes in copyright law.

Link to the rest at The Register and thanks to Ryan for the tip.

Duran Duran ‘shocked’ after losing legal copyright battle

3 December 2016

From BBC News:

“We are shocked that English contract law is being used to overturn artists’ rights in another territory,” said founder member Nick Rhodes.

The group had argued that US copyright laws gave them the right to call for a reversion of copyright after 35 years.

. . . .

The group had sought to terminate the grant to Gloucester Place Music Ltd, part of EMI Music Publishing, of US copyrights in their first three albums.

The albums – Duran Duran, Rio and Seven and the Ragged Tiger – contained some of the band’s biggest hits, among them Hungry Like the Wolf and The Reflex.

A View to a Kill, the theme song to the 1985 James Bond film of that name, was among other songs the band had sought to reclaim.

But lawyers for Gloucester Place Music Ltd successfully argued that English laws of contract stopped them from doing so.

. . . .

Rhodes said on Friday: “We signed a publishing agreement as unsuspecting teenagers, over three decades ago, when just starting out and when we knew no better.

“Today, we are told that language in that agreement allows our long-time publishers, Sony/ATV, to override our statutory rights under US law.

“This gives wealthy publishing companies carte blanche to take advantage of the songwriters who built their fortune over many years, and strips songwriters of their right to rebalance this reward.

“If left untested, this judgment sets a very bad precedent for all songwriters of our era.”

. . . .

The history of pop music is littered with bands who signed deals they later regretted.

The 35-year rule in America gave artists from the late 1970s onwards a chance to escape those contracts and claim back ownership of their copyright.

Link to the rest at BBC News and thanks to Kris for the tip.

How Copyright Came to the Library of Congress

12 November 2016
Comments Off on How Copyright Came to the Library of Congress

From Mostly IP History:

As most people who dabble in copyright know, copyright in America has generally consisted of three parts: Notice, Registration, and Deposit.  The notice is generally an act taken by the author or his/her assignee (generally the publisher)to provide notice of copyright – in the very beginning this actually required publishing a notice in a newspaper, but mostly all that has been required is placing a copyright notice on the work.  Registration is of course the act of registering the work for copyright with the statutorily-designated register.  Deposit is the act of depositing one or more copies pursuant to the statute.

From 1790 to 1846, Copyrighted works were registered with the local federal district court, and the registration was only perfected when copies were deposited with the Secretary of State in Washington DC – at first directly by the author/publisher, and later by the clerk of the District Court in bulk.  However, in 1846 the act establishing the Smithsonian Institution contained a provision requiring deposit of copies registered for copyright with both the new Smithsonian and the Library of Congress.

. . . .

However, the Smithsonian Institution was never particularly happy with being a depository for copyright books, and in 1859, with the acquiescence of the Librarian of Congress, Congress shifted the venue for copyright deposit to the Patent Office.  And even as these changes for copyright deposit ensued, copyright registration had steadfastly remained with the local district courts.

. . . .

In 1870 the only omnibus revision of intellectual property law in American history was passed, and one of its changes was the transfer of all copyright registration and deposit activities to the Library of Congress.

Link to the rest at Mostly IP History

Sole and Despotic Dominion

7 November 2016

From Locus Online:

William Blackstone is a towering legal authority, whose 18th century Commentaries on the Laws of England are still studied today. Blackstone was big on private property as a cure for humanity’s woes. In Commentaries, he wrote one of the most famous definitions of private property in English-language history:

There is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right of property; or that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.

The term ‘‘intellectual property’’ is a novelty. Until the 1970s, it was very unusual to hear it uttered, especially in legal contexts. As a term of art, it obscures more than it illuminates: when I say ‘‘you have violated my intellectual property,’’ you have to guess whether I’m upset about copyrights, or trademarks, or patents, or database rights, or medical research data rights, or broadcast rights, or trade secrets, or whether I’m using the term colloquially to mean, ‘‘You’ve done something with an idea I think of as ‘mine,’ for some reason, that I object to’’ (think of comedians who object to other comedians telling similar jokes, something that violates no law but is still often called ‘‘stealing intellectual property’’).

Before IP, the rights were spoken of in the specific: ‘‘you have violated my trademarks,’’ ‘‘you have infringed my patents,’’ and so on. If they were classed together, as sometimes happened with rights of creators (as opposed to corporations), they were called ‘‘authors’ monopolies,’’ a term that reflected their aberrant status in US law, as they were legally protected, government-granted monopolies over who could say or publish certain combinations of words – an idea that’s hard to square with the US Constitution’s First Amendment: ‘‘Congress shall make no law … abridging the freedom of speech, or of the press.’’

. . . .

‘‘Author’s monopolies’’ didn’t become ‘‘intellectual property’’ by accident: the linguistic shift was engineered by the entertainment industry, who wanted to hitch their wagon to Blackstone and his ‘‘sole and despotic dominion.’’ The trick of calling regulatory monopolies ‘‘property’’ upended the idea of real, tangible property. Is a book you buy and treasure something over which you exercise ‘‘sole and despotic dominion?’’ Well, yes and no. You share that dominion with the author (or perhaps the corporation who publishes the author, or, these days, the author’s corporation). You can read the book to your kid at night, and you can read it to yourself on the bus, but you can’t read it aloud on the bus, or make copies of it for your kid.

Link to the rest at Locus Online and thanks to A for the tip.

PG says the OP is not always accurate with respect to its description of laws relating to intellectual property, but it is interesting.

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