Bo Carter: The Law Gonna Step on You

Monday Mashup: Stayin’ Alive In The Wall

Pissed off by Parody

Citizens Against Government Waste is one of those private, corporate-fed entities freed by the Citizens United decision to pour as much money as they want into political campaigns. It has produced an ad ridiculing stimulus spending by the government that promises to be the source of many a parody, including the one embedded below (which appears to be the first).

CAGW, however, believes this parody is a copyright violation and has sent YouTube a takedown notice. Campus Progress, which produced the video, disagrees:

Citizens Against Government Waste must have spent all their money on the video, and didn’t have any left over for legal advice. Our video is a parody, not a copyright violation. And we aren’t raising money off it. We’re only raising awareness and highlighting the concern of young people that corporate interests are drowning out their voices this fall.

On the internet, they’ll find out you’re a dog if you bite.

I’ve made clear I consider anonymity on the internet a stance often abused and almost always one that detracts from the speaker’s credibility, but it also can be a legal problem when anonymous writers do real damage, without justification, to the targets of their words. As SignOn San Diego reports:

A business consultant who wants to know who’s been anonymously disparaging and fixating on her online has gotten a court to force Google to tell her.

As she joined a growing number of people who have persuaded courts to unmask troublesome cyber ciphers, Carla Franklin said Wednesday she hoped her case would help others combat similar problems.

As Bennet Kelley makes clear, you do have a right to speak anonymously, but that right doesn’t mean you have the right to use your words to harm someone without justification:

“There’s a tension there – there’s a First Amendment right to be able to speak anonymously, but there’s no First Amendment right to violate the law,” said Bennet G. Kelley, a Santa Monica, Calif., attorney who specializes in Internet law.

“People think: ‘It’s the Internet. I can do whatever I want,’” he said, but “the law applies, online and offline.”

Jonathan McIntosh’s Buffy vs. Edward (Twilight Remix)

It is hereby permitted to reprint my silliness.

In a call for a National Digital Library, and borrowing heavily from Lewis Hyde’s Common as Air, Robert Darnton contrasts 18th Century views on the free exchange of information with certain views today:

I know: the devil can cite Jefferson. Anyone can cull through the papers of the Founding Fathers in order to find quotations in support of a cause. But I can’t resist. Here is Jefferson again:

If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea…. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.

Jefferson was thinking about the effects of printing, of books, and of reading—a favorite subject of the Founding Fathers. Here is Franklin:

The art of printing…diffuses so general a light…that all the window shutters despotism and priestcraft can oppose to keep it out, prove insufficient.

And John Adams:

And you, Messieurs printers, whatever the tyrants of the earth may say of your paper…are so much the more to your honor; for the jaws of power are always opened to devour, and her arm is always stretched out, if possible, to destroy the freedom of thinking, speaking, and writing.

“Despotism and priestcraft” have an antiquated ring to them, but the danger of restricting access to knowledge is as great today as it was two hundred years ago. Here is a copyright notice attached to a recent electronic edition of Alice’s Adventures in Wonderland, which was first published in 1865:

Copy: No text selections can be copied from the book to the clipboard….

Lend: This book cannot be lent to someone else.

Give: This book cannot be given to someone else.

Read aloud: This book cannot be read aloud.

Contrast that statement, made only yesterday, with the following remarks by Voltaire after the publication of his Questions sur l’Encyclopédie in 1772: “It is hereby permitted to any bookseller to [re]print my silliness, be it true or false, at his risk, peril, and profit.” As Lewis Hyde put it in his recent book, Common as Air, an enclosure movement is threatening to destroy our cultural commons, the world of knowledge that belongs to us all.

Is Shepard Fairey entitled to a jury trial on fair use? Good authority says yes.

Quite plainly the question is a vexed one: does a defendant in a copyright infringement lawsuit have the right to have a jury decide whether his use of the copyrighted material constitutes non-infringing fair use as a “question of fact”? Or is the fair use defense a “question of law” that a judge can decide without a jury?

We may have that question decided early next year in the lawsuit between Shepard Fairey and the Associated Press over Fairey’s use of a copyrighted AP photo as the source of the image in Fairey’s Obama Hope Poster. Fairey has requested a jury trial.

But no less an authority than Bill Patry believes that the question is one for a jury and thus that Fairey’s defense to AP’s claim of infringement should be determined by a jury.

And now comes Christopher E. Meatto to point us to another authority pointing the same way: Professor Ned Snow has published “Untangling Fair Use as a Matter of Law.” In his abstract to the article, Snow writes:

Fair use is an issue of fact for the jury. Or at least it should be. Recently courts have been perverting the centuries-old practice of treating fair use as a factual issue. Courts must therefore repent: they must return to construing the issue as factual. Yet even if they do, the question remains whether courts should ever decide fair use as a matter of law. To answer this question, this Article examines whether appellate courts should ever review fair use decisions under a de novo standard. It also examines whether trial courts should ever decide fair use on summary judgment. The Article concludes that the speech nature of fair use necessitates deciding the issue as a matter of law in certain circumstances: appellate courts should review constitutional findings under a de novo standard, but only where a bench trial occurs or where a jury verdict favors the copyright holder; trial courts should rule on summary judgment, but only for fair users. In short, ruling as a matter of law must serve the speech-protective function of fair use. Fair use as a matter of law must favor fair users.

Why is boilerplate called boilerplate? It’s durable enough to use over and over.

Thinking about the uses and abuses of boilerplate, I began wondering where the term came from. Boilerplate is language that consists of a “standard formulation uniformly found in certain types of legal documents or news stories” or a “thick plate iron used in the production of boilers.” Why did the latter become the former? As David K. Israel explains over at mental_floss:

[S]team boilers were built from very heavy tough steel sheets. Similar sheets of steel were also used for engraving copy that was intended for widespread reproduction in multiple issues of newspapers—things like ads and syndicated columns. Regular, here today, gone tomorrow copy was set in much softer, durable lead.

Appropriation can be original, but sometimes it can be theft too. :)

In an installation entitled Whose Coat is that Jacket You’re Wearing?, British artist Mike Ballard fills a store — doubling here as an art gallery with expensive brand name leather jackets, parkas, sport coats and their contents. As my long-time friend Matthew Rose reports, Ballard stole all the coats and is not only capitalizing on his years as a thief to make it as an artist — he’s also welcoming the owners to come reclaim their goods:

Ballard says he lifted the jackets in a decade-long revenge binge, nicking them from pubs, and once back in his studio, emptied the pockets, cataloged the contents, scribbled poetic notes about each item and never told a soul. The artist’s kleptomania, inspired by the theft of his own prized blue Diesel 55 jacket when he moved to London from North Wales, came to an end in 2009 when he sought therapeutic help. . . .

Since 1999 [Ballard has] walked out of crowded pubs with more than 200 jackets by simply putting them on – his own jacket on top – and sailing out the door. Cheers, folks!

And now, a week before the annual London art orgy – the Frieze Art Fair – Mike Ballard lifts the veil on his secret store of stolen jackets, asking the world to come and get them, to please forgive him, and at the same time lift his star high above the door as he exits through the cloak room, a nod to fellow Brit guerrilla street artist Banksy. The installation in the abandoned Walker’s Tailor shop near the Great Portland Street tube station is a wall-to-wall closet: The jackets hang from the ceiling like sides of beef, tagged, dated and numbered, ready for pick up.

The cocoon of cotton, wool, leather and nylon is impressive in this tiny store. You can’t stand up without getting lost in the stink of beery bars, smoke and body odor which is overwhelming. (The artist is considering spraying Febreze around to deodorize the show, but remains undecided.) He hasn’t worn any of these jackets since he stole them, nor has he smoked any of the hash or spent the cash (about 1000 pounds) he’s found in the pockets; nor has even thought about selling off the diamond ring he discovered. Instead, Mike Ballard turned into an archivist of sorts, cataloging everything down to the loose rolling papers and 2 penny coins, photographing them, and scribbling a bit of prose and poetry as well as the relevant dates and locations of each theft. The texts are printed on tags hanging from the sleeves, along with the cross-referencing numbers which, when flashed against the petitioner’s claim, will prove if in fact this is their stolen jacket.

Friday Night Music Break: Moby Grape, Murder In My Heart For The Judge

Curated by Interesting People.

One of the remarkable things about having an internet presence is the gratification of being recognized by genuinely interesting people. I would’ve never guessed I’d deserve inclusion among this group.

Fighting Facebook’s overreaching.

I’ve written plenty about copyright overclaiming and its pernicious tendency to stifle clearly legitimate appropriation of copyrighted works. As Richard Posner has written, the fear of litigating against rich copyright holders who place a premium on their fear of losing something of value leads to behavior based on law that isn’t at all what the law is supposed to be.

Of course, the over zealous assertion of purported legal rights by wealthy litigants to cow the less wealthy is not the type of behavior limited to copyright. It comes arises in all legal fields. And, unsurprisingly, Facebook apparently is prone to the practice. As Boston.com reports:

Boston-based Where Inc. has developed an application that helps users find places they might like to visit. You can save it in something called a Placebook.

Just one small problem. The owners of Facebook have apparently decided that Placebook is in violation of its intellectual property rights. Facebook argues that companies like Placebook create confusion among consumers, thereby diluting the value of their unique brand. (Hyperlink added.)

It seems to me a bit of a stretch to worry that someone would consider Placebook to be a product of Facebook. And while Facebook is a pretty brilliant name, it’s hardly original — filched as it was, after all, from the colloquial term that Harvard and many other colleges give to the photo directories they distribute to students. (At my undergraduate institution it was known as the “Pigbook.”)

But Facebook doesn’t have to worry too much about the legitimacy of its claim as long as it’s just legitimate enough to pass the giggle test and thereby scare potential defendants into giving up without a fight:

In a cease-and-desist letter to Placebook’s lawyer a couple of weeks ago, Facebook’s lawyer wrote that, in the US alone, it has successfully intervened to prevent the registration of the trademarks Officebook, Flickbook, Geezerbook, Doctorbook, Lawyerbook, and my personal favorite, Redneckbook, which would have been a website for the hunting-and fishing crowd.

Placebook, however, is not so easily bullied. Just as importantly, Placebook has a lawyer who recognizes bullying when she sees it:

“I think Facebook is having an identity crisis and they are acting like predators,’’ said Kimberly B. Herman, an attorney at Sullivan and Worcester who is representing Placebook. “It’s very predatory and not reasonable.’’

In previous cases, Facebook has gotten its way simply by firing off a threatening letter, according to Herman. That’s what happens when a company valued at nearly $7 billion unleashes its legal might against start-ups. “Every entity has rolled over and died, because no one has $6.9 billion to fight them,’’ Herman said. (Hyperlink added.)

The writer of the Boston.com piece agrees with me in thinking that “consumers are smarter than Facebook gives them credit for and are not likely to get Placebook and Facebook confused.” Unfortunately, “a court may have to decide that — if, of course, Placebook doesn’t back down, as others have.” Here’s hoping Placebook has the resources to send Ms. Herman out to fight for them.

Copyright killing culture. Old news.

A recent report by the Library of Congress has brought attention to the ways in which our copyright laws threaten the very existence of those parts of our historical memory that have been recorded. As Ars Technica explains:

The Library of Congress has released a sobering new report on the state of digital audio preservation in the United States. The Library’s National Recording Preservation Board concludes that most of the nation’s audio libraries are ill-equipped to handle the complex array of streams and digital formats by which music and other recorded sounds are released today.

“It is relatively easy to recognize the importance of recorded sound from decades ago,” the survey notes. “What is not so evident is that older recordings actually have better prospects to survive another 150 years than recordings made last week using digital technologies.”

But even those older artifacts face the prospect of being lost to posterity because of our nation’s copyright laws. So concludes The State of Recorded Sound Preservation in the United States: A National Legacy at Risk in the Digital Age (PDF).

“Were copyright law followed to the letter, little audio preservation would be undertaken,” the report warns. “Were the law strictly enforced, it would brand virtually all audio preservation as illegal.”

But this threat to our culture isn’t news. My friend Andrew Dubber, among others, has been on about this issue for years. His blog, Deleting Music

is a scrapbook of material for a book I’m writing about the music industries and intellectual property in the digital age.

Specifically, it’s about the problems that arise when music is only considered in terms of its function as commerce, rather than as culture.

I’m interested in archives, identity, education, research, memory, discourse, politics, artistic expression – and the ways in which people use music as part of their everyday lives.

My concern is that because music is only represented as an economic force at a policy level, decisions are being made that threaten our collective cultural capital. And sadly, most of these decisions are being made purely in the short-term interests of corporations, rather than in the interest of citizens, for the preservation or propagation of culture – or, for that matter, the good of artists.

In following this path, we are quite literally Deleting Music.

We’ve got loads and loads of music and movies stored away, and the people who have those recordings typically have no incentive to go to the efforts necessary to preserve them because they don’t own the copyright and often can’t even determine who does. But it’s even worse than the fact the people (libraries, individuals, corporations, etc.) don’t have the promise of being able to sell the recordings. They even fear that copying the recordings so that they are stored on media that aren’t deteriorating can alone get them in trouble. As Dubber points out in quoting a recent San Francisco Chronicle story:

Did you ever imagine you could be held liable for copyright infringement for storing your music collection on your hard drive, downloading photos from the Internet or forwarding news articles to your friends?

If you did not get the copyright owner’s permission for these actions, you could be violating the law. It sounds absurd, but copyright owners have the right to control reproductions of their works and claim statutory damages even when a use does not harm the market for their works.