IPTAblog

Earlier this week, the AP reported, Hasbro drops suit over Scrabble-clone Scrabulous: "According to documents filed in U.S. District Court in New York, Hasbro dropped the lawsuit Friday.... The court documents did not specify a reason for the withdrawal of the case."

Previously: Scrabbled; Scrabulous-less

On Monday, The Wall Street Journal reported that Google, Lawrence Lessig and the incoming Obama administration all revised their position to no longer support a free and open internet, Google Wants Its Own Fast Track on the Web: "Google Inc. has approached major cable and phone companies that carry Internet traffic with a proposal to create a fast lane for its own content, according to documents reviewed by The Wall Street Journal. Google has traditionally been one of the loudest advocates of equal network access for all content providers."

Richard Whitt, Google's Washington Telecom and Media Counsel quickly responded, Net neutrality and the benefits of caching
"Despite the hyperbolic tone and confused claims in Monday's Journal story, I want to be perfectly clear about one thing: Google remains strongly committed to the principle of net neutrality, and we will continue to work with policymakers in the years ahead to keep the Internet free and open."

Larry Lessig, The made-up dramas of the Wall Street Journal: "I got off the plane from Boston to find my inbox filled with anger about an article in the Wall Street Journal. To those who were angry, I hope you will direct any anger at the Wall Street Journal after you read what follows."

Talking Points Memo asked the Obama transition team about the President-elect's position on net neutrality , Obama Spokesperson: His Commitment To Net Neutrality Hasn't Wavered One Bit: "The Obama transition team is reaffirming his complete commitment to net neutrality and is disputing a much-discussed report today claiming that the President-elect is softening his support for it or shifting his position on it."

The program that the WSJ writes about is an "edge-caching" system, where Google co-locates servers at internet service providers, so that there are fewer bottlenecks between the end users and popular data. The caching servers need only download once over the public internet and then redistribute that data multiple times over the faster connections over the "last mile" between the ISP and the end user. This is similar to what Akamai does.

It should be considered discrimination if one company is allowed to purchase access to end users while simultaneously purchasing the right to exclude or degrade the transmission of data from other competing publishers. If an ISP offers to co-locate caching servers for Microsoft or Yahoo or Netflix on an equal basis as Google, this should not be considered to violate open internet principles. If instead, an ISP offered the privilege of co-locating caching servers only to one highest bidder, then it would be discriminatory.

Does it constitute discriminatory internet service for any publisher to be able to buy more bandwidth than others? Should V.C.R. the video blogger be able to purchase a faster connection than Ed the e-mailer? If Google, Microsoft and Netflix transfer orders of magnitude more of data than Joe the blogger, should an ISP or backbone provider be prohibited from offering discounted bundles of bits to its high volume customers on an equal basis?

For Google to pursue competitive advantage for its services is a way to innovate over the open internet. Were Google to pursue these co-locating deals in a way that required its ISP partners to exclude Google's competitors, then that could be considered non-neutral. If Google's traffic between its central servers and edge servers were prioritized over other traffic.

More reactions:
Ed Felten, Three Flavors of Net Neutrality, "Part of the difficulty in this debate is that 'net neutrality' can mean different things to different people. At least three flavors of 'net neutrality' are identifiable among the Journal's critics."

David Isenberg, Bogus WSJ Story on Net Neutrality: "Net Neutrality only becomes an issue when a carrier picks and chooses which cache to supply pipes to."

David Isenberg and his commenters discuss the net neutrality implications of some of the permutations of edge caching, What if I were wrong about edge-caching?

Timothy Lee, The Journal Misunderstands Content-Delivery Networks: "Unfortunately, the Journal seems to be confused about the contours of the network neutrality debate, and in the process it has mis-described the positions of at least two of the key players in the debate, Google and Lessig. Both were quick to clarify that their views have not changed."

Frank Pasquale, Concurring Opinions, Frontiers of Net Neutrality: Recognizing the Bottlenecks: "Today's WSJ article on Google's alleged backsliding on net neutrality has spawned a lot of controversy on the web. Google has articulately defended the practices at issue in the article. But the piece does focus internet policymakers on some basic truths: there are many potential bottlenecks on the internet, and antitrust law alone cannot adequately regulate the power they confer."

UCLA Law professor Doug Lichtman hosts The Intellectual Property Colloquium- a series of hour-long podcasts of conversations with leading legal thinkers about current issues in IP law.

Professor Lichtman writes, "The conversation is about the legal rules that apply when sites like Facebook, LinkedIn, and MySpace gather private information from their users. Does Facebook have any liability, for instance, if a user uploads some scandilous tidbit that turns out to defame someone else? What if Facebook uses that information to help its advertisers or indeed imbeds it in some advertising tool like Beacon? My guests are GW Law Professor Dan Solove (an expert on high-tech privacy issues and author of several pop-press books on point) and Santa Clara Law Professor (and former GC of epinions.com) Eric Goldman."

And listeners can earn free CLE credit in NY and California now, with other jurisdictions coming in January.

Subscribe in iTunes.

Variety reports, Mayor of Batman sues WB, Nolan: "The mayor of an oil-producing city in southeastern Turkey, which has the same name as the Caped Crusader, is suing helmer Christopher Nolan and Warner Bros. for royalties from mega-grosser 'The Dark Knight.' Huseyin Kalkan, the pro-Kurdish Democratic Society Party mayor of Batman, has accused 'The Dark Knight' producers of using the city's name without permission. 'There is only one Batman in the world,' Kalkan said. 'The American producers used the name of our city without informing us.'"

In a large scale operation, a 14 page "July 4, 2009" edition of "The New York Times" was distributed around New York this morning. Is this parodic?

There's also an Online version (which is not loading for me).

The Times reports on the spoof, Liberal Pranksters Hand Out Times Spoof: "In an elaborate hoax, pranksters distributed thousands of free copies of a spoof edition of The New York Times on Wednesday morning at busy subway stations around the city, including Grand Central Terminal, Washington and Union Squares, the 14th and 23rd Street stations along Eighth Avenue, and Pacific Street in Brooklyn, among others.

Romanesko posted a press release from the people behind the distribution, "In an elaborate operation six months in the planning, 1.2 million papers were printed at six different presses and driven to prearranged pickup locations, where thousands of volunteers stood ready to pass them out on the street."

Gawker links this to the Yes Men, "The email address that sent out this message was linked to the site of The Yes Men, longtime liberal prank group that has been doing things just as complex and finely tuned as this for years. The Yes Men run the Because We Want It site, through which they set up this prank. They wanted to be anonymous for a while allegedly, but too late." (The Yes Men site is not loading now.)

In addition to articles like "Bush Resumes Golf Game" and "High Speed Internet Hits Fast Track to Appalachia," this edition of "All the News We Hope to Print" includes "ads" for Monsanto, KBR, ExxonMobil, DeBeers, GM, McDonalds, and New York subway advertising icon Dr. Zizmor.

Daniel Radosh, Obama's first unforgivable act, "After eight years of the Onion and the Daily Show and Colbert and too many books and blogs to name, the old saw that liberals had no sense of humor had finally been banished. And then today, in the first big humor statement of the Obama era, the Yes Men produce a New York Times parody that actually parodies nothing but — quite unintentionally — dreary socialist agitprop."

It's hard to think about things non-electoral today, but today also happens to be the oral arguments in the Supreme Court for FCC v. Fox. The Court will be reviewing the FCC "fleeting expletive" standard for broadcast indecency.

The Second Circuit Court of Appeals ruled "the FCC’s new policy sanctioning 'fleeting expletives' is arbitrary and capricious under the Administrative Procedure Act for failing to articulate a reasoned basis for its change in policy." Fox v. FCC

Transcript of the Oral Arguments for Fox v. FCC in the Supreme Court.

ScotusWiki has links to all of the briefs filed along with a preview of the case

Dahlia Lithwick reported on the oral arguments for Slate.com, The Supreme Court's 100 percent dirt-free exploration of potty words, "Well, shit. There was supposed to be swearing. They swore like sailors when this case was argued in the 2nd Circuit. Judges and lawyers both! Those same judges swore themselves silly in the appellate opinion. Advocates swore (a lot) in the merits briefs. Promises were made. But today, in a case about how and when the FCC can regulate so-called 'fleeting utterances' of words like fuck and shit, the saltiest language comes when Solicitor General Gregory Garre, arguing for the FCC, warns that the agency had an obligation to guard against the possibility of 'Big Bird dropping the F-bomb on Sesame Street.'"

The Progress and Freedom Foundation's Adam Thierer attended the oral arguments and posted some thoughts, Supreme Court oral arguments in FCC v. Fox (General Thoughts): "Overall, however, I am concerned for the First Amendment after this morning's arguments in the Supreme Court. We could get a close decision in favor of the FCC and the agency's ongoing effort to expand content controls."

Some more previews in the press:
David Savage, Los Angeles Times, On the Supreme Court docket: bleeeeeep, "At issue is the future indecency standard for television and radio. Will these broadcasts remain under strict federal regulation because a mass audience that includes children may be watching? Or will a looser standard prevail, giving broadcasters and audiences more choice in what they see and hear?"

William Triplett, Variety, Fox v. FCC heads to Supreme Court: "A decision in the so-called fleeting expletives case of Fox v. FCC, skedded for oral arguments Tuesday morning, could sharply cut back -- maybe even eliminate -- the Federal Communications Commission's authority to police the airwaves for indecent content, experts say."

Adak Liptak, The New York Times, Ideas and Trends - Must It Always Be About Sex?: "The Oxford English Dictionary's three core entries on the word -- noun, verb and interjection -- are about six times as long as this article. That doesn't count about 30 derivations and compounds, all colorful and many recent. The nimble word, the dictionary tells us, can help express that a person is incompetent; that another is not be meddled with; that a situation has been botched; that one does not have the slightest clue; and, in a recent addition, that someone has enough money to be able to quit an unpleasant job."

Here are a couple of video links vaguely related to the mechanics of voting, without getting into the question of how well our elections are enabling democracy.

Mr. Rogers uses a mechanical lever voting machine:

In New York, we still use the lever machines. There is something especially satisfying about casting a vote by pulling the lever to record a vote using a system of gears. It's a more tactile experience than using some touchscreen or optical scan systems.

And one from The Onion:

Voting Machines Elect One Of Their Own As President

MTV requested that Weird Al censor the name of P2P file sharing sites Morpheus, Grokster, Limewire and Kazaa from his 2006 video. The New York Times reports, Censorship, or What Really Weirds Out Weird Al - NYTimes.com: "In an e-mail message on Sunday, Mr. Yankovic wrote that he had bleeped out the names to the file-sharing sites in his song two years ago, after MTV 'told me that they would refuse to air my video' otherwise. 'Instead of subtly removing or obscuring the words in the track,' he wrote, 'I made the creative decision to bleep them out as obnoxiously as possible, so that there would be no mistake I was being censored.'"

Google announces that it settled with the Association of American Publishers, who sued the search engine company in 2005 over its plan to scan and index books that are still protected by copyright. Official Google Blog: New chapter for Google Book Search: "This agreement is truly groundbreaking in three ways. First, it will give readers digital access to millions of in-copyright books; second, it will create a new market for authors and publishers to sell their works; and third, it will further the efforts of our library partners to preserve and maintain their collections while making books more accessible to students, readers and academic researchers.

Here's the text of the Settlement Agreement

Joe Gratz has more details about the settlement, Settlement Reached in Authors Guild v. Google

And here are some collected reactions from around the web.

Professors and Practitioners:
Larry Lessig, On the Google Book Search agreement: "This is a good deal that could be the basis for something really fantastic. The Authors Guild and the American Association of Publishers have settled for terms that will assure greater access to these materials than would have been the case had Google prevailed."

James Grimmelmann, The Laboratorium: Author's Guild Settlement Insta-Blogging: "The result of the settlement will be to give Google a license to keep on doing what it’s doing, while allowing the authors to use their now-sharpened knives to sue anyone else who tries to do the same. At that point, of course, Google would be delighted for the authors to succeed, since it keeps the competition at bay."

Neil Netanel, Balkinization , Google Book Search Settlement: "So in many ways the proposed settlement is a win-win-win-win (for Google, the copyright holders, the libraries, and the public). But there are some causes for concern as well. Perhaps most importantly, the settlement leaves undecided the issue of whether Google's scanning of the entire books and display of snippets is a fair use. Many observers, including me, believed that the courts would ultimately hold that it is a fair use, and thus set important precedent establishing that such 'transformative uses' of copyrighted works -- uses that serve the shared goals of copyright and the First Amendment -- do not infringe copyright."

Mike Madison, On Google Book Search: " The proposal offers a new and larger set of questions, questions that have surrounded Google generally for some time but that the proposal puts into more concrete focus:  Are we seeing the early stages of the beginning of the end of copyright law as we know it?"

Susan Crawford, Google settlement: Changing Defaults: "Yesterday’s settlement agreement is remarkable in many ways.  It’s a proposed settlement of a civil, private lawsuit, but the agreement feels public.  It affects an entire industry, not just the parties concerned.  It sets up a new kind of special-purpose collective rights association (h.t. James Grimmelmann), like ASCAP or BMI.  Instead of Google acting to create access to a great library of books, it seems to point to the creation of a tremendous bookstore.  Perhaps that’s the same thing, but it’s worth thinking about the changed default settings that this arrangement creates."

Siva Vaidhyanathan, The Googlization of Everything, My initial take on the Google-publishers settlement: "this settlement, if it goes through, dodges that great copyright meltdown that I had feared. I did not want to see Google lose this suit in court. And I was confident it would. Google lawyers assured me that they were even more confident they would prevail. And they are smarter than I am. But clearly both sides saw real risk in continuing toward a courtroom showdown."

C.E. Petit, Scrivener's Error: "On balance, I think this settlement is not in anybody's best interests... but, as usual, the actual creators of content will be screwed most thoroughly."

Lobbying Groups:
Arts+Labs (Current members include AT&T, Viacom, NBC Universal, Cisco, Microsoft and the Songwriters Guild of America), Arts+Labs Statement on the Google Settlement with American Association of Publishers, "This settlement shows that creators' rights and consumer benefit can go hand-in-hand in the Internet age. It is a victory for consumers and creators alike. The agreement demonstrates that collaboration between the technology community and the creative community can give consumers access to a wealth of resources while also preserving copyright owners' right to control how their work is distributed online and to earn fair compensation for their creativity."

Patrick Ross, The Copyright Alliance, A Good Day for Authors: "It is refreshing to see we are finally where we should have been several years ago, developing a marketplace solution that allows copyright owners to grant access in return for compensation and allows those seeking access to written works to obtain it. I should also note that the libraries above participated in the talks and thus are presumably satisfied at the access this agreement gives to their patrons and others interested in access to works both copyrighted and public domain."

Reporters:
New York Times, Google Settles Suit Over Book-Scanning: "Google plans to take 37 percent of the revenue, leaving 63 percent for publishers and authors. If Google sells ads on pages where previews of scanned books appear, it will split the revenue on the same basis."

Chris Snyder, Wired, Google Settles Book-Scan Lawsuit, Everybody Wins: "Google's settlement of a three-year old lawsuit challenging its Book Search program, which scans books and make portions available online, creates a new revenue stream for authors and publishers (and itself) — but the financial benefits are dwarfed by the clear field the company now has to complete an ambitious program to create a global digital library."

Jessica Guynn, LA Times, Google settles copyright dispute with publishers and authors: "If approved by a Manhattan federal court judge next summer, the settlement has the potential to revolutionize the publishing industry by creating a giant online marketplace that would dramatically increase the volume of literature available to readers and researchers -- while compensating authors and publishers."

Rob Hof, Business Week, Google Settles Book Search Lawsuits with Authors, Publishers: "As a book lover, what I find the coolest thing about the deal is that eventually, I’ll be able to visit most any library and, using at least one terminal that will be set up at each library, view digital versions of these books for free (though I’ll have to pay to print out pages). It’s nice that all the sides managed to agree on something that is demonstrably a good thing for all of us."

Previously:

• Another Google Book Search Commentary Roundup (Dec. 2)
• HarperCollins Plans to Scan (Dec. 12)
• Google Print and Fair Use (Nov. 9)
• Google Print at the Public Library (Nov. 18)
• Publishers Sue Google, Too (Oct. 19)
• Google, Publishers, Copies and "Being Evil" (Sept. 21)

... for political satire.

NewTeeVee reports: Super Bowl Ads of Yore Revamped for '08 Election: "Now, with the election just a week away, we've come full circle with two more ads from Super Bowls past revamped for online political purposes. Office Linebacker 'Terrible' Terry Tate has returned to put the hurt on fools who don’t vote, while the 'Wassup' guys guys have suffered every great malady our nation has gone through over the last eight years."

Wall Street Journal, 'Whassup' Comes Out for Obama - WSJ.com: "The parody is raising eyebrows in ad circles, partly because Budweiser's maker, Anheuser-Busch, can't do much to stop it. In a departure from normal industry practice, neither Anheuser nor its ad firm, Omnicom Group's DDB Chicago, own the Whassup slogan or concept. Instead, the brewer paid Mr. Stone roughly $37,000 to license the idea for five years. That deal expired three years ago, says Mr. Stone, who appeared with his buddies in several of the Budweiser Whassup ads."

On Monday, October 6, the Future of Music Coalition is holding a session on sampling and licensing at the Public Theater here in NYC: Creative License. Preceding that event is a seminar on What's the Future for Musicians.

In what is likely to be the most magical copyright case to come to the Southern District of New York this year, US District Judge Robert Patterson ruled in favor of Warner Brothers and J.K Rowling against RDR Books, finding that the publisher of the Harry Potter Lexicon infringed on the plaintiffs' copyrighted expression in the collected Harry Potter works. Warner Bros. Entertainment, Inc. v. RDR Books

While a victory for the original author, this case does provide useful guidance for future reference guides to fictional works on how to create a guide that will be considered fair use.

The key issue that the court has with the Lexicon is the extent to which it borrows language directly from the original Harry Potter novels and companion books. The court writes, "Although it is difficult to quantify how much of the language in the Lexicon is directly lifted from the Harry Potter novels and companion books, the Lexicon indeed contains at least a troubling amount of direct quotation or close paraphrasing of Rowling's original language. The Lexicon occasionally uses quotation marks to indicate Rowling's language, but more often the original language is copied without quotation marks, often making it difficult to know which words are Rowling's and which are Vander Ark's. … Although hundreds pages (sic) or thousands of fictional facts may amount to only a fraction of the seven-book series, this quantum of copying is sufficient to support a finding of substantial similarity where the copied expression is entirely the product of the original author's imagination and creation."

Invented facts-- such as the properties of a boggart-- constitute creative expression protected by copyright. Each "fact" reported by the Lexicon is actually expression invented by Rowling. Reproducing original expression in fragments or in a different order, however, does not preclude a finding of substantial similarity. However, the Lexicon's rearrangement of Rowling's fictional facts does not alter the protected expression in a way that the Lexicon ceases to be substantially similar to the original works.

The court finds that the Lexicon is not an infringing derivative work because it is not sufficiently creative to be a derivative work. "By condensing, synthesizing, and reorganizing the preexisting material in an A-to-Z reference guide, the Lexicon does not recast the material in another medium to retell the story of Harry Potter, but instead gives the copyrighted material another purpose." In a footnote, the court goes on to note that this is the key difference between derivative works which are infringing and works of fair use, which are permissible.

The defendants raise the defense that the Lexicon is a fair use of material from the Harry Potter books, but the court rules that the Lexicon is insufficiently transformative to be a fair use. "The purpose of the Lexicon's use of the Harry Potter series is transformative. Presumably, Rowling created the Harry Potter series for the expressive purpose of telling and entertaining and thought provoking story centered on the character Harry Potter and set in a magical world. The Lexicon, on the other hand, uses material from the series for the practical purpose of making information about the intricate world of Harry Potter readily accessible to readers in a reference guide. … Because it serves these reference purposes, rather than the entertainment or aesthetic purposes of the original works, the Lexicon's use is transformative and does not supplant the objects of the Harry Potter works." The Lexicon's use of material from the companion books, which started life off in encyclopedic form, does add value by "adding a productive purpose to the original material," it is transformative "to a much lesser extent" since it largely supplants "the informational purpose of the original works."

"While not its primary purpose, the Lexicon does add some new insight, of whatever value, as to the Harry Potter works."

"The transformative character of the Lexicon is diminished, however, because the Lexicon's use of the original Harry Potter works is not consistently transformative. … Perhaps because Vander Ark is such a Harry Potter enthusiast, the Lexicon often lacks restraint in using Rowling's original expression for its inherent entertainment and aesthetic value." The inconsistent use of diligent citations by the Lexicon contributes to a lack of transformative character in those instances where its value as a reference guide lapses.

Weighing most heavily against Defendant on the third factor is the Lexicon's verbatim copying and close parahprasing of language form the Harry Potter works. In many instances, the copied language is a colorful literary device or distinctive description.… The Lexicon's verbatim copying of such highly aesthetic expression raises a significant question as to whether it was reasonably necessary for the purpose of creating a useful and complete reference guide.

"Additionally, the fourth factor favors Plaintiffs if publication of the Lexicon would impair the market for derivative works that Rowling is entitled or likely to license. Although there is no supporting testimony, one potential derivative market that would reasonably be developed or licensed by Plaintiffs is use of the songs and poems in the Harry Potter novels. Because Plaintifs would reasonably license the musical production or print publication of those songs and poems, Defendant unfairly harms this derivative market by reproducing verbatim the songs and poems without a license."

The court confirms that it should be possible to write a guide to a series of novels that does qualify as a fair use, by lifting less of the language directly.

"Notwithstanding Rowling's public statements of her intention to publish her own encyclopedia, the market for reference guides to the Harry Potter works is not exclusively hers to exploit or license, no matter the commercial success attributable to the popularity of the original works. The market for reference guides does not become derivative simply because the copyright holder seeks to produce or license one.… Furthermore, there is no plausible basis to conclude that publication of the Lexicon would impair sales of the Harry Potter novels… reading the Lexicon cannot serve as a substitute for reading the original novels; they are enjoyed for different purposes. The Lexicon is thus unlikely to serve as a market substitute for the Harry Potter series and cause market harm.…

"In striking the balance between the property rights of original authors and the freedom of expression of secondary authors, reference guides to works of literature should generally be encouraged by copyright law as they provide a benefit readers and students; but to borrow from Rowling's overstated views, they should not be permitted to 'plunder' the works of original authors 'without paying the customary price,' lest original authors lose incentive to create new works that will also benefit the public interest."

Other links and commentary:
Michael Madison, madisonian.net Eyes on the Fair Use Prize: "The interesting half of the opinion, from my point of view, is the treatment of the fair use argument.  In effect, and without belaboring a critique of the full opinion, the court decided that the Lexicon, while alleged to be a work of scholarship, wasn’t scholarly enough."

Derek Bambauer, Info/Law, Rowling 1, Lexicon 0: "This case tees up hard copyright questions. What is the boundary of the term of art ‘derivative work’? How broad should an author’s control be over secondary, non-scholarly works treating her expression? How should courts deal with inventorying of ‘fictional facts’? This opinion resolves some of these questions in the Lexicon case, but I feel less certain it answers them for future plaintiffs."

Scrivener's Error, Harry Potter and the Copyright Infringement: "Contrary to the whingeing (and outright screaming) that you're going to hear, this is not a rejection of fair use as a concept. It is, instead, limited to the particular facts that were presented to Judge Patterson for this matter."

David Ardia, Citizen Media Law Project, Judge Rejects Fair Use Defense in Harry Potter Lexicon Case, J.K. Rowling Recovers Her Plums: "So what are we to make of the court's lengthy exposition on fair use?   As I already noted, Judge Patterson's framing of the facts seems to have dictated how his fair use analysis would come out.  Nevertheless, there is some good news in the opinion for fair use advocates."

NY Times, Rowling Wins Lawsuit
Against Potter Lexicon: "For seven years, a Harry Potter fanatic worked on a guidebook to J. K. Rowling's best-selling series, but in the end, a federal judge ruled on Monday, his book was too close to the work he admired."