So if you’ve been following the saga of SOPA, you are likely familiar with the author of the bill, Rep. Lamar Smith. He’s been a regular cast member in this epic struggle for Internet freedoms. If you’re short on time, though, here’s the abridged version: Lamar Smith believes the Internet is a wretched hive of scum and villainy when it comes to copyrighted material because he thinks people regard copyrights the same way they regard the newspaper you put in the bottom of a bird’s cage.

Turns out, however, that the copyright-violating apple doesn’t fall far from the tree for Mr. Smith.

VICE magazine writer Jamie Lee Curtis Taete took it upon herself today to check out Smith’s campaign website and make sure that all of the material on there was copyright-verified. Fair enough, I believe, to expect that the SOPA author should at least bear the standard (however terrible) that he’s trying to establish. Taete found a pre-SOPA’ed version of Smith’s site and discovered this image being used as the background:

Taete tracked the image back to the photographer who took the photo, DJ Schulte, and…. well, c’mon, you see where this is going…

And whaddya know? Looks like someone forgot to credit him.

I contacted DJ, to find out if Lamar had asked permission to use the image and he told me that he had no record of Lamar, or anyone from his organization, requesting permission to use it: “I switched my images from traditional copyright protection to be protected under the Creative Commons license a few years ago, which simply states that they can use my images as long as they attribute the image to me and do not use it for commercial purposes.

“I do not see anywhere on the screen capture that you have provided that the image was attributed to the source (me). So my conclusion would be that Lamar Smith’s organization did improperly use my image. So according to the SOPA bill, should it pass, maybe I could petition the court to take action against www.texansforlamarsmith.com.”

VICE said it contacted the office of Lamar Smith but, curiously, has not received a response.

And so, it is the end of the day and I have no ending for this astounding news so I will simply take a bow. See you tomorrow.

Due to what it claims is a failure to receive any royalty kickbacks, EMI Music Publishing has filed a lawsuit against Grooveshark’s parent company, Escape Media Group. The New York Times explains:

In the suit, filed in New York State Supreme Court in Manhattan, EMI seeks unspecified damages. But in a series of recent e-mails and legal correspondence included with the filing as evidence, EMI asks Grooveshark for at least $150,000 in royalties.

Grooveshark says its service is legal under the Digital Millennium Copyright Act, a federal law that protects Internet companies that host third-party material if they comply with take-down notices from copyright holders.

EMI is the fourth corner of the major music label square – the other three being Sony Music, Warner Music Group and Universal Music Group – that is suing Grooveshark over licensing and copyrighting issues.

According to a statement provided to The Times, Grooveshark believes that “this is a contract dispute that we expect to resolve.” While that’s an optimistic outlook, this latest legal action against Grooveshark leaves little to look forward to in the future as they’re now involved in litigation battles on four separate fronts. Personally, I don’t like this news and hope Grooveshark can resolve these issues because if they disappear I’m gonna be left without a dealer to get my Philip Glass fix. Having said that, it doesn’t look good for home team.

But given this government’s track record, an industry-friendly justice is good for both the entertainment business and the business of government. And unfortunately, there is no white knight remaining big enough or confident enough to take on both Big Content and a sympathetic federal government. 

Before she entered the judicial realm, Sotomayor was a litigator dealing in intellectual property at a major Manhattan law firm. She spent much of her tenure tracking down and rounding up counterfeiters on behalf of Fendi, and suing importers of counterfeit products.

As a Supreme Court judge, Sotomayor would join a justice system already stacked with former intellectual property attorneys. President Obama has already appointed five attorneys to the Department of Justice who made names for themselves bringing lawsuits against file-sharers for the Recording Industry Association of America.

Sotomayor by herself should yield little concern about how she would handle Web-related intellectual property cases destined for eventual appearances before the Supreme Court. But in conjunction with this administration’s obvious preference for Big Content IP skull-crackers—and Congress’s willingness to bend to the will of Big Content—should raise the volume of an already sounding alarm.

We need to know: Who’s side is Sotomayor on?

Those currently making, prosecuting, and interpreting intellectual property laws have a clear historical record of siding with Big Content. Sotomayor’s most notable decision as a judge regarding the digital copyright issue involved freelance writers versus Big Content publishers like the New York Times, Sports Illustrated, and Newsday. Freelance writers were peeved that their work, which was contracted for one-time print publishing, was being stored in online databases for use on publication websites.

Sotomayor sided with Big Content by interpreting the law in their favor. An appeals court would later overturn her decision, saying that the publications needed to negotiate for digital rights. The appellate decision was upheld by the Supreme Court. It might be unfair to say Sotomayor would bring a pro-Big Content viewpoint to the Supreme Court based on her anti-counterfeit work for Fendi, but her judicial history might suggest otherwise.

Despite Motion-Picture-Association-of-America-backed research spread worldwide to influence the creation of tougher international intellectual property law—research that equated pirating with counterfeiting and linked piracy to terrorism, drug trafficking, the sex trade, and Asian knife fights—two counter studies have surfaced recently illustrating how file-sharers and torrent users buy more music and DVDs, go to more movies, and buy more entertainment equipment.

Nevertheless, government agencies have a record of siding with recording and motion picture companies who pretend they are hemorrhaging money due to those same file-sharers and torrent users. They’d rather it not be pointed out that even though “Wolverine” was leaked onto the Internet a month in advance of its release, it still grossed $87 million opening weekend, or that Forbes’ Celebrity 100 list reveals Beyonce herself made $87 million last year, and Madonna made over $100 million.

The point is Big Content is not suffering as they pretend, but they sure have a lot of friends in government around the world. It’s not so much about what’s right and just, it’s not even so much about how much money Big Content isn’t really losing. It’s about ultimate control of a digital environment and squashing competition.

In the past ten years, Big Content has brought its business-is-war philosophy to the only real competition remaining: Internet upstarts and Internet users who don’t want to be corralled back into walled gardens with premium entry fees and anti-consumer, abusive pricing structures.

The assault on consumer rights and personal liberty is happening everywhere continuously, perpetrated in the name of intellectual property rights. The MPAA labeled RealDVD “StealDVD” because the motion picture organization doesn’t think even paying customers have a right to back up their own legally purchased discs for personal use.

Cable companies are putting caps on data, introducing tiered pricing, throttling torrents. Telecoms want to block unapproved video transfers. The Associated Press wants to rewrite fair use, revive “hot news” protections, and block out other forms of news distribution. The National Football Association wants to say football players names and stats are solely its own intellectual property. Big Content wants to snoop into and control everything Internet users do online. 

It goes on and on, and unfortunately there are few people’s champions remaining. The government is clearly on Big Content’s payroll. Google, which at one time was brassy enough to make grand shows of defiance, has now also fallen in line. All it took was a billion-dollar Viacom claim, and Google bent over to the AP, and now to the rest of Big Content by actively blocking torrents.

With all that in mind, it’s a good idea to quiz Sotomayor fairly heavily about her stances on intellectual property. If Big Content gets its own Supreme Court justice, the Internet as you’ve come to know it—the one where what you do is your business—is toast. There’ll be nobody left to fight for you.
   

For the most part, the study is fairly typical fear mongering, the kind used to justify calls for ISPs to police traffic on their networks on behalf of the government and entertainment companies. It goes a little farther than that, however, in that it directly calls for governments to share intelligence with entertainment companies in order to help them police piracy networks. The authors call on governments to have a “commitment to high level accountability for intellectual property protections” and “laws to grant investigators greater authority to sustain investigations, conduct surveillance, and obtain search warrants.”

In short, the study calls for a Patriot Act for the Entertainment Industry.

Studies like this in the past, including one from the MPAA that was outed for vastly inflating piracy numbers, have been used to convince legislators to pressure colleges to comply with the corporate copyright police, to pass DMCA legislation routinely abused by copyright holders as an affront to fair use, and, the least of them, to require awareness propaganda on legally purchased or rented DVDs in advance of the film—you know, those ones that treat law abiding citizens like criminals and can’t be skipped.

In addition, by linking piracy to terrorism, human trafficking, drugs, and other crime syndicates, the MPAA makes it easier for governments to use crime fighting as a mask for violations of digital privacy.

The new study in question uses “piracy” and “counterfeiting” interchangeably, though they are not the same thing, to bolster the cause. Counterfeiting is selling imposter merchandise, which would include ripped off DVDs, which there are already plenty of laws against. Piracy via download isn’t technically the same.

It begins with heavy handed tales of blood and guts horrors loosely connected with piracy: knife and spear fights in Malaysia; international slave trade in Britain (one slave master was found to have DVD counterfeiting operation going at the same time); South American Muslim terrorists writing piracy proceeds checks to Hezzbollah. The IRA, India’s D Company, the Russian mafia, all involved and making money lots of money from selling ripped off DVDs.

Here’s something from the report you probably didn’t know: DVD piracy has a higher profit margin than narcotics sales. You probably didn’t realize knock-off DVDs were selling at $150,000 per pound, did you?

The report lumps all organized crime together, which artificially boosts the impact and profitability of piracy by citing “combined” sales of illegal goods. Therefore a $100 worth of DVD sales plus a $5,000 coke sale have a combined price of $5,100, unevenly boosting the value of the DVDs.

And—shocker!—organized crime syndicates have various ways of making money, meaning that if they’re involved in one crime, they’re likely involved in other crimes, so if you track one aggressively you can track the others and nail the big crooks. While that’s true, this is where two worlds—the criminal world and the “regular guy” world—cross over, because this is how we get to a place where people’s Internet activity is carefully monitored on behalf of the copyright police.

Oh look, here’s an illegal download. Small fish, no payoff, but the download came from this person making that download and tons of others available. And that person is also a YouTube use and might be loosely related to a DVD counterfeiter, an intellectual property thief, a spammer, a hacker, a drug dealer, a money launderer, a human trafficker, and a terrorist supporter. Therefore a cabal of government, ISPs, and entertainment companies have every right to watch every move you make online so the entertainment company can protect its industry and the government can crack down on crime.

That’s unconstitutional in America, but so far legislators have sided with Big Entertainment instead of the citizens.  Big Entertainment also donates heavily to politicians, which might account for not only their acquiescence but also their apparent reluctance to enact Net Neutrality regulation that would prevent digital packet inspection.
 

Rep. Ed Markey (D-Mass), chair of the committee and sponsor of pro-Net Neutrality legislation, videoed the meeting, an historical first, and put up the video on YouTube.  At another time, Markey interviewed Hurley one-on-one about his sudden success, his hopes for YouTube, and what it’s like be goofy and a billionaire.

Okay, so the last question never happened.

In a video also posted on YouTube, Hurley expressed his desire that YouTube become the Internet’s Town Hall, and a bastion of democracy. Check out the video for more back-patting, ego-stroking, and grandiose delirium.

After all, getting your own audience in front of United States lawmakers, and your behind smooched by a Congressman – on video no less – is bound to inspire some dreamy grandiosity.

It wasn’t all spits and giggles for Hurley though. Cuban and others were present at the committee hearing to rain on his parade a little. Shortly after Markey’s introduction, Rep. Mike Ferguson (R-NJ) pressed the young executive about YouTube’s lax copyright enforcement.

Hurley offered up a DMCA defense, to which Cuban let out a terse balderdash! Cuban accused YouTube of ignoring infringements by hiding under a DMCA blanket.

On his blog, Cuban continued the criticism:

Which puts Youtube in a position of acting just like your typical big market radio station or music radio network.

Youtube immediately went from a small, but interesting community for its original content, to basically being just like Clear Channel. Responsible for programming its different "formats" with the "best" possible content that creates the greatest number of eyeballs and maximizes advertising revenue. Its big business, just like Clear Channel

Which leads to the question of who is going to do something about it? Who is going to take the responsibility of protecting that content that Youtube is paying for?

He ends sentences with prepositions because billionaires can do that, and he also doesn’t think any of the pervasive Net Neutrality fears will pan out, because billionaires can think outside the bandwidth. Cuban’s touted fiber as the key to mooting Net Neutrality points as the virtual world evolves beyond coaxial cable and telephone wires.

Both ArsTechnica and CNet have their own creative coverage of Mr. Hurley’s trip to Washington, be sure to check them out too.

In a press release Google says:

“Here there is a law which is specifically designed to give Web hosts such as us, or… bloggers or people that provide photo-album hosting online … the ’safe harbor’ we need in order to be able to do hosting online,” said Alexander Macgillivray, Google’s associate general counsel for products and intellectual property.

“We will never launch a product or acquire a company unless we are completely satisfied with its legal basis for operating,” Macgillivray told Reuters in an interview.

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You’d think the answer to this question would be simple-always sign a contract, period- but it isn’t.

While this question applies over a broad spectrum of fields, it is especially ambiguous in the freelance world. This series of articles is geared towards individuals or companies looking to hire service providers like web designers, copywriters and internet marketers on a contract or freelance basis.

Too often, there seems to be a strange reluctance between service providers and clients to sign a contract. Why? Only they can answer that question. Maybe they don’t want to be locked in, or feel like they’re obligated (which is a little silly, considering the situation). Maybe they really trust the person and feel like a contract isn’t needed, or perhaps they want to keep things open. Maybe one person feels like its an insult to the integrity of the other to request a contract. There are any number of reasons, but the bottom line is that a contract is completely necessary; furthermore, it is in the best interests of both parties to negotiate an agreement.

A contract is simply a way of outlining everything you’re going to be doing, who gets to keep the copyright, for how long and ______ fill in the blank. A contract for copyright is especially integral, as this is often a huge point of dispute between service providers and clients.

I’m going to be writing two installments: one for clients looking for work and one for services providers. I’ll provide links to places with templates and examples, and generally talk about best practice when it comes to contract and copyrights for buyers and sellers. A shorter third installment will talk about the benefits of a written contract to all parties involved.

I imagine that anyone who’s ever contracted out for services has dealt with this issue at least once. On the web, it seems to come up a lot with services like web and graphic design, copywriting and many other mediums where copyrighted materials are involved.

More on the copyrights and contracts series:

PART 1 – WEB SERVICES, CONTRACTS AND COPYRIGHT- FOR CLIENTS

PART 2 – FOR SERVICE PROVIDERS

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About the Author

Aurora Brown is the editor and head copywriter for Social Media Systems online marketing company and specializes in producing powerful, accessible content for the web. She co-authors the 3net Search Engine Marketing Blog and is working on her first novel.

After reading this article by Dana, I couldn’t agree more. Dana suggests that “Sun’s Java implementations and JBoss products” should be a true test of “open source innovation”.

1. Dana, Java is not “coming under the GPL next year”. Sun’s implementations of Java ME, SE and EE are “coming under the GPL”. Don’t forget that developers have to hand over joint copyrights to Sun for any contributions. Then, Sun can decide to re-license the larger piece of work (i.e. Sun implementations of SE, ME and EE) under any license they choose. And according to their own FAQ, Sun intends to sell commercial versions of their implementations. Heck, they’ll let you use Sun code plus contributions from the “community” and you can make your own modifications to the complete work without having to contribute them to the broader community. all for a fee. Sounds like a BSD-style license except that you have to pay Sun to get those rights.

2. The JBoss application server is a decent product (but there are definitely some shortcomings also). However, this has absolutely nothing to do with open source. JBoss was not developed by, is not being developed by, and will not be developed by “the open source community”. JBoss products have always been developed by folks who are, or who have become, JBoss employees. The JBoss development effort is commercial development done out in the open.

3. There is no community/3rd party vendor incentive for driving innovation when one vendor controls an open source project. In such a situation, that vendor stands to receive the majority of the benefit from “community/3rd party vendor” effort in the project. This usually means that there is little 3rd party vendor work in such a project. Any innovation that occurs in the project is indicative of the single vendor’s abilities, and says nothing about open source innovation. When an open source community is led by several (often competing) companies or a non-profit (usually funded by competing commercial entities), then there is a reason for these vendors to get involved and innovate in the community. Everyone contributes, innovates, and stands to benefit. I’ve written about this before.

So, Dana, I disagree with your view that Java is the true test of open source innovation. You can’t test for “open source innovation” using ‘open source’ projects that are lacking a key, if not the most important, aspect of open source: COMMUNITY.

Eclipse is a test of open source innovation. Linux is a test of open source innovation (we’re past the “just re-create what’s been done” stage wouldn’t you say?) Firefox is a test of open source innovation. Apache projects in general are a test of open source innovation. And if you ask me, the test results look pretty good

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I am taking a semi-break from IBM life as I return to finish a PhD in Industrial Engineering. I’ve held roles in market intelligence, strategy and product management. I’m ex-product manager of IBM WAS Community Edition, and blog about enterprise open source topics.

The president of the Music Publishers Association recently stated that the organization plans to take action against sites that post song lyrics without the proper licensing. Also possibly included in the action is the posting of tablature, a transcribed and simplified notation of how music is to be played, often learned and noted by ear for instruction.

Charles S. Sanders, Senior Vice President of Legal and International Affairs for the Harry Fox Agency, told WebProNews that both lyrics and tablature rights belong to the creator or third party publisher, under the Copyright Act of 1976.

“That tablature is copyrightable is also beyond question,” he said. “Chord progression, though is up in the air. It’s a question of Fair Use. It’s impossible to predict where Fair Use is going to come down.”

Sanders cited the recent Grokster ruling and maintained that, even in the new and relatively unprecedented Internet era where publishers like Warner-Chappell and Hal Leonard may not explicitly have electronic print rights, the courts have been sympathetic to copyright owners.

Sanders was unfamiliar with Google’s new music search function and could not say conclusively that the search engine would have problems in the future. But, says Sanders, “it could be an issue.”

Warner-Chappell’s Jay Morgenstern, however, says that Google will probably not have any beef from his organization now that Google has a relationship with America Online, which is in the Warner Brothers family of businesses.

So the question still remains as to exactly how much, if any, of copyrighted material can be legally used under Fair Use when producing content for a website.

Music publisher Hal Leonard would prefer you seek permission to use the material they have the rights to, even if you just plan to use an excerpt. Though they would prefer that, Fair Use disagrees.

“Fair use is a copyright principle based on the belief that the public is entitled to freely use portions of copyrighted materials for purposes of commentary and criticism.”

For example, we can cite a portion of Fiona Apple’s “Pale September,” whom Hal Leonard represents.

“He goes along just as a water lily
Gentle on the surface of his thoughts his body floats
Unweighed down by passion or intensity
Yet unaware of the depth upon which he coasts
And he finds a home in me
For what misfortune sows, he knows my touch will reap”

In the writer’s opinion, this is one of the finest lyrical contributions in music history. The snippet of text and commentary on the text is covered under Fair Use.

But if there is any doubt, the Fair Use website offers guidelines for webmasters as well as “Five Ways to Stay Out of Trouble” when it comes to questions of copyright on the Internet.

A: A wise man once said, “The biggest difference between a copyright and a patent is the number of lawyers it takes to do the paperwork.” There is a point to be made there, mainly that if this wise man had paid his attorney to copyright that tidbit of wisdom I probably would have had to pay him five bucks to use the quote.

Copyrights, trademarks and patents are similar in that they are designed by law to protect your rights of ownership, but that’s where the similarity ends. A copyright protects a creative work; a trademark protects a brand or company identity; and a patent protects an invention or process.

A copyright protects the rights of anyone who creates an “original work of authorship.” A copyright owner has the exclusive right to reproduce the work; prepare spin-off works based on the copyrighted work; and to sell, perform and/or display the copyrighted work in public.

Copyright protection is afforded to eight categories of creative works: literary works (the written word); musical works (lyrics, music, melodies); dramatic works (plays, scripts, screenplays); artistic works (pictorial and sculptural), sound recordings (LPs, CDs, audio tapes); choreographic works (dance, pantomime); audiovisual works; and architectural works (blueprints, designs, renderings).

An original work is automatically copyrighted the moment it is put into a fixed format such as a paper copy or recording. In other words, once you put your original story in writing or make a recording of an original song, your copyright is automatically secured. From that moment on your work has copyright protection for your lifetime, plus 50 years after your death.

Registering a work with the U.S. Copyright Office is not required, but since it is relatively simple and inexpensive to do so, I advise that you register a copyright for each work you wish to protect. Also, your copyright must be registered in order to take legal action against someone who might infringe on the copyright in the future.

You can register a copyright without the assistance of an attorney. Simply visit the U.S. Copyright office website at http://lcweb.loc.gov/copyright/ and download the appropriate form. Complete the form and send it in with a $30 nonrefundable filing fee. This must be done for each individual work you wish to protect.

A patent is a form of protection granted to an inventor that protects his invention in the United States for up to 20 years from the date of application. Patent law states that, “whoever invents or discovers any new and useful process, machine, manufacture, composition of matter, or any new and useful improvements thereof may obtain a patent.” Owning a patent gives you the legal right to stop someone else from making, using or selling your invention (or one that’s very close to it) without your permission. However, proving that someone is infringing on your patent is often difficult and usually requires a trial to settle the dispute.

Since the first U.S. patent was awarded in 1790, more than five million patents have been awarded. The patent office receives more than 230,000 patent applications every year and I can tell you from personal experience that a turtle on Prozac moves faster than the patent process. Patents can take several years, truckloads of paperwork, and considerable legal fees to obtain. The cost of obtaining a patent can run from $500 for a simple design patent to $50,000 and more for a complex utility patent. However, if your company has a truly patentable idea, you would be wise to invest the time and money required to secure your rights. A good patent can be a valuable business asset.

While you can file a patent yourself, I strongly advise that you use an attorney since a naively written patent application often isn’t worth the paper it’s printed on. Just recently my attorney did a patent search for me only to discover that a patent for a similar product was already in place. However, due to the ineffectual language of the patent application, the patent was practically impossible for the owner to enforce.

Good news for me. Not so good news for the wise man who wrote his own patent.

Here’s to your success!

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