On September 15 at 6pm I’ll be speaking at SPACES on the interrelationships of art, law, and technology. SPACES is a gallery, a resource, and a public forum for artists who explore and experiment. To find it, go here.  There will some minor similarities, I suppose, to the talk I gave at the Cleveland Institute of Art two years ago, but this one promises to be significantly different and better.

The story reveals several important points. One I am clearly interested in is the importance of sound legal advice in locating and interpreting the precise matters authors are being asked to agree to. Simply figuring out what rights are being allocated and how they are being allocated is not an easy thing. First, the “agreement” the authors were asked to sign did not set forth the relevant policies they were agreeing to. Second, even after the journal had appeared to back off its original position, insightful legal reading of the new position showed it was the old one repackaged in new form.

Another point to be take is the leverage publishers have over certain authors — Pomerantz and Harvey are fortunate; they are sufficiently well established in their academic fields that they could afford to stand their ground and risk the journal’s refusal to accede to their demands on rights and the resulting refusal to publish their article.

A third point is that Pomerantz and Harvey were able to self-publish their paper with the ability to represent that it had already passed the journal’s peer review process, thus eliminating the only real weakness of self-publication: the absence of validation provided by peer-review. They have also published it in a manner that will permit ongoing comment, which in itself will provide a further level of peer review.

Is publication changing, or what?

hat tip to @asawusch on twitter.

appears to give Righthaven only the right to sue over the story or photograph at issue, but not to exploit it in any other way. Past court cases have ruled that companies cannot bring copyright suits unless they control one of the “exclusive rights” enumerated in the Copyright Acts, rights including copying, distribution, public performance, etc. The “right to sue” is not among them.

Indeed, Anderson seems to be right. The “Strategic Alliance Agreement” between Righthaven and Stephens Media LLC (embedded below) states in its section 7.2 that Righthaven has no rights in the works it is purchasing rights in except those rights associated with suing for suing for copyright infringement in those works:

Despite any such Copyright Assigmnent, Stephens Media shall retain (and ishereby granted by Righthaven) an exclusive license to Exploit the Stephens Media Assigned Copyrights for any lawful purpose whatsoever and Righthaven shall have no right or license to Exploit or participate in the receipt of royalties from the Exploitation of the Stephens Media Assigned Copyrights other than the right to proceeds in association with a Recovery. (emphasis added).

In his treatise on copyright, William Patry states “Plaintiff must plead ownership of the right sought to be vindicated.” Patry on Copyright, Section 19:7. In short, you cannot sue for violation of a right that is not yours to enforce.  To allow Righthaven to do otherwise is to allow it to engage in the common law sin of “champerty,” which is the sale to someone with no interest in the alleged wrong being sued on of a right to sue for a percentage of the amount recovered in the suit. As the Second Circuit Court of Appeals has explained it, champerty is “a bargain between a stranger and a party to a lawsuit by which the stranger pursues the party’s claim in consideration of receiving part in consideration of receiving part of any judgment proceeds.” Alexander v. Unification Church of America, 634 F.2d 673, 677 n.5 (2d Cir. 1980). As Patry explains it, Righthaven seems to have fallen into the trap of engaging in Champerty:

As applied to copyright, champerty may be found only when there is an assignment of the copyright and preexisting causes of action and where the assignment of the copyright was a sham designed to disguise the real intent of conveying the chose in action. For example, if the assignment required the assignee to reconvey the copyright at the conclusion of the litigation, this would be very strong evidence of champerty. If, however, the assignor continued to exploit the work in a manner inconsistent with an assignment of rights, a claim of champerty might prove out.

Patry on Copyrght, Section 5:36 (emphasis added).

Strategic Alliance Agreement Between Righthaven and Stephens Media

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.

As the Copyright Litigation Blog reports, just such a thing happened in Agora Financial, LLC v. Samler (D. Md. June 17, 2010) (pdf). The plaintiff, a financial newsletter, sued a website that had had lifted and republished the plaintiff’s investment recommendations. The plaintiff sued, claiming that the defendants actions were “Hot news misappropriation” and violated Section 43(a) of the Lanham Act.

“Hot news” is a relatively recent coinage that, in the words of Thomas Shevory, “refers to written material, often ‘facts,’ that have value for a short duration, and which will soon move into the ‘public realm’ losing their value completely.” Thus, news organizations have argued that “hot news” is entitled to protection. One problem with the argument is that facts alone cannot be copyrighted. As Shevory writes, “[g]iven the short time-frames at stake, questions of how to determine value, and underlying doubts about whether it should be protected at all, analysis of hot news can quickly become an extremely complicated undertaking.”

So what did the court in Agora Financial do? It ruled for the plaintiff-financial newsletter and held that the defendants’ appropriation was unlawful, but it avoided the difficult question altogether. It held instead that the appropriated material constituted “opinion” — not “fact” — and thus are entitled to copyright protection. The appropriation, therefore, constituted copyright infringement.

Not only does the case illustrate that you can win — and welcome the win — on different grounds than you argue, but that courts tend to find whatever way they can to avoid controversial reasons to find the way they want to find.