The Truth Shall Set Us Free: Copyrights in Biblical Translations

December 1, 2011 by Barry Neil Shrum, Esq.

Amazon.com Widgets

By Bennett L. McMordie, ed. by Barry Neil Shrum

“Everyone must submit himself to the governing authorities, for there is no authority except that which God has established. The authorities that exist have been established by God. Consequently, he who rebels against the authority is rebelling against what God has instituted, and those who do so will bring judgment on themselves. . . . [F]or the authorities are God’s servants, who give their full time to governing. Give everyone what you owe him: If you owe taxes, pay taxes; if revenue, then revenue; if respect, then respect; if honor, then honor.”

Romans 13:1-7 (ESV)

It is perhaps an irony that my use of Paul’s words concerning the respect owed to the authority of government may, in fact, be an infringement of a particular government’s copyright!

More to the point, is the fact I quoted these verses from the English Standard Version of the Bible copyright infringement? One would think not, as the original disparate writers of the assembled Hebrew and Greek texts that make up our modern Scripture have been deceased for centuries now, and their individual works were created long before any type of copyright protection was ever imagined, must less applicable. In fact, the first copyright statute, the Statute of Anne, would not be passed by Parliament until 1709, while the earliest extant fragments of any type of scripture are fragments containing Hebrew texts which date back to the 2^nd century BCE.

The myriad translations of the Bible that are around today — over 400 English translations have been created over time, including popular versions such as the New International Version, the Good News Translation, the New American Standard Version, The Message — are registered by their respective publishers as copyrights in the United States.

So, if a preacher quotes scripture aloud in church, or reprints a couple of inspirational verses in his weekly newsletter, is the minister committing willful copyright infringement? Fortunately, he is not, but only by virtue of licensing. While most all translations of the Bible are copyrighted, their publishers allow people to copy them freely, howbeit with certain limitations. For example, the publishers of the New American Standard version allow a person to copy as much as 500 verses without prior written, so long as the total amount copied is less than 25% of the total new work created. Other publishers take a similar approach, allowing a person to publish 1,000 verses totaling less than 50% of the work. The rationale behind this policy is that it allows the public to use the Bible freely while preventing blatant reproduction of the entire text.

Perhaps one of the more intriguing examples of a protected version of the Scriptures the most popular version of the Bible, the King James Version, which is still protected by copyright law despite the fact that it was published over 400 years ago.

The rights to the KJV, initially published in 1611, are still owned by the English monarchy, under their so-called “Crown Copyright” laws. The Copyright Act 1911 provided specific protection for government works prepared or published by or under the direction or control of the Monarch or of any Government department, specifically including the KJV.

Now, lest there be a revolution, there’s no need to get your “knickers in a wad” if you’re a non-Brit: the King James Version is in the public domain everywhere else in the world. Still, the concept of a government holding copyrights indefinitely can feel a little strange, especially if you’re from the U.S., where Article 1, Section 8, Clause 8 limits the grant of a copyright for “a limited time.” Unlike England where copyright concepts are based on natural rights, U.S. laws are based upon the utilitarian principle that incentivizing creative endeavors for a limited time and then passing them into the public domain sustains society’s interest in a fluid marketplace of ideas.

But in England, only two publishers possess the rights to print the King James Bible: the Queen’s Printer (now the Oxford University Press) and the Scottish Bible Board; all others must receive a letter patent from the Crown to legally print the KJV .

Should governments be allowed to hold copyrights?

Ownership of copyright by a government entity begs a larger question: shouldn’t works that were created for the public, using the people’s tax dollars, be available for public copying and use? This is certainly the case in the U.S., where §105 of the 1976 Act prohibits ownership of “any work of the United States Government,” which is defined in §101 as “a work prepared by an officer or employee of the United States Government as part of that person’s official duties.” The effect of section 105 is intended to place all works of the United States Government, published or unpublished, in the public domain.

This prohibition only applies to works created by the U.S. on its own soil, and does not apply to works created in foreign countries, as most governments are entitled to copyright protections in their works. Thus, it would be unfair not to allow protection for U.S. works in that situation. Currently in Great Britain, works that are commissioned by the government are protected for 125 years from creation, or 50 years after publishing.

The KJV states: “and ye shall know the truth, and the truth shall make you free.” (John 8:32). Now that the truth is known, shouldn’t the King James Bible be free to the descendants of King James?

Bennett McMordie is currently a student in Mr. Shrum’s Copyright Law class at Belmont University in Nashville, TN, where he is earning a degree in Music Business. He loves all things music, most things business, and also enjoys playing bass for the CJ Solar Band.

YouTube Uses Happy Tree Friends to Educate on Copyright

April 28, 2011 by Barry Neil Shrum, Esq.

By Rachel Galloway

IMPORTANT NOTICE: The views expressed in this article are solely those of Ms. Galloway and may not necessarily reflect the views of Law on the Row or Barry Neil Shrum, Esquire.

The last time I watched a Happy Tree Friends video was when I was around 13 years old in the company of my 10-year-old cousins. The videos typically consisted of the characters getting into situations where they lost limbs or impaled themselves with blood squirting everywhere. Needless to say, when I watched YouTube’s Copyright School, I was shocked to see those same characters teaching me about copyright infringement and piracy.

YouTube’s Copyright School video has been on the site for roughly a month now with 248,734 views, 1,142 likes, and 5,914 dislikes (as of April 25, 2011 when I viewed it). I have heard and read many mixed feelings on this video and personally find it to be unsuccessful. Judging from the dislikes, I am not the only one.

I understand where YouTube is coming from in trying to educate children and teenagers on copyright issues using characters that they would normally watch such as Happy Tree Friends. However, I am not sure that they will get the effect they are hoping for. In my opinion (and experience with today’s generation), teenagers and children will continue to copy and use copyrighted work regardless of whether they understand that it is illegal.

In my two years at Belmont University as a Music Business major (where students are required to take a Copyright Law course), I have come to find out that teenagers do not care whether downloading music illegally is wrong or not. They simply do not care as long as they do not get caught. I find it ironic and hypocritical to go to a school where artists are encouraged to create original works and where copyrighted works are taught to be protected to find out that most of the students (including the artists) still continue to download illegally. This infringement mainly takes the form of pirating music just like with the majority of American teenagers. In my opinion, if we can’t get college students who have a substantial knowledge on copyright infringement and it’s consequences to stop pirating music, then how can we get teenagers across America to do so with a 4 minute and 39 second YouTube video?

Pirating music is an issue that will always be a problem for the music industry. There have been many suggestions made that attempt to fix or at least ease this issue. Personally, I believe that the best way to go about this is to cut the cost of digital downloads (from $9.99 an album to around $1-$2 an album), so that consumers will not feel like they are forking out a ton of money towards entertainment that they believe should be free. Personally, I would rather pay a low price for an album of superior quality than go through the trouble to find the pirated version for free that has a bad quality.

YouTube’s Copyright School had the right idea and motivation. Will it make a difference in the music industry? I personally doubt it. I applaud them for making an attempt to educate kids across America on the issue, but I believe that this is probably a losing battle.

Rachel Galloway is a Sophomore Marketing major with a minor in music business at Belmont University in Nashville, Tennessee. Born and raised in Atlanta, Rachel graduated from Providence Christian Academy in Lawrenceville, Georgia in May 2009. She came to Belmont University the following year with an interest in marketing and event planning in the music world. There, Ms. Galloway studied copyright under the tutelage of Professor Shrum. Upon graduation, she hopes to open her own event planning company.

Judge Chin rejects settlement agreement in Authors Guild v. Google

March 25, 2011 by Barry Neil Shrum, Esq.

Under Rule 23(e) of the Federal Rules of Civil Procedure, a settlement of a class action requires approval of the court. Fed. R. Civ. P. 23(e). The court may approve a settlement that is binding on the class only if it determines that the settlement is “fair, adequate, and reasonable, and not a product of collusion.” This week, with regard to the much ballyhooed amended settlement arrangement (the “ASA”) in The Authors Guild v. Google, Inc. the honorable Denny Chin of the U.S. District Court in Manhattan said flatly “I conclude that it is not.” See full decision.

The ASA would have allowed Google to digitize millions of copyrighted works in an effort to create the largest digital library, a process Google began in 2004 when the company entered into agreements with certain academic libraries to digitize their holdings. Since that inaugural agreement, over 12 million books have been scanned and made available online through Google Books. The ASA would have allowed Google to “(1) continue to digitize books and inserts, (2) sell subscriptions to an electronic books database, (3) sell online access to individual books, (4) sell advertising on pages from books, and (5) make certain other prescribed uses. (ASA §§ 3.1, 4.1-4.8; see also ASA § 1.149).” Google’s rights to the copyrighted work would be on a non-exclusive basis, permitting the copyright holder to exploit the work to other companies, including competitors, while simultaneously allowing Google to display the work, for which Google would have been required to compensate the class plaintiffs 63% of the revenue from all uses of the work to the copyright holder.

Judge Chin recognized the many benefits of an online library with virtually every work ever created are great in number. First, the sheer number of books that students, schools and researchers could access would greatly benefit the public. Those in disadvantaged economies and cultures could access knowledge otherwise not available, and persons with disabilities could learn through the implementation of Braille and audio books. Moreover, publishers and authors would benefit due to the number of books made accessible to the public, especially those works that have been forgotten in the dark and hidden corners of libraries. But as Judge Chin further pointed out,

While the digitization of books and the creation of a universal digital library would benefit many, the ASA would simply go too far.

At least 500 additional parties filed amicus briefs on the subject commenting, mostly from a negative point of view, on the amended settlement, including such notables and Microsoft and Amazon. In addition, 6800 members of the plaintiff class “opted out” of the settlement. The bulk of the briefs focused on the inadequacies in the settlement relating to class notice and class representation, and on concerns regarding copyright, antitrust, privacy and international issues. Some also argued that the settlement would go beyond the authority of the court under Rule 23 of the Civil Rules of Procedure.

This procedural issue turned out to be one of the more compelling arguments presented to the court. In as much as the settlement would have released certain claims not before court such as, for example, so-called “orphaned works,” the court felt that the ASA was “an attempt to use the class action mechanism to implement forward-looking business arrangements that go far beyond the dispute before the Court in this litigation.”

Orphan works are books that have copyright protection, but the copyright owner identified in the registration certificate cannot be located or reached. Under the ASA, Google was required to “strive” to locate the copyright holder, but if unsuccessful could digitize the book without consent. In this case, and in the case of “absent class member who failed to opt out,” pursuant to terms of the settlement agreement, the copyright owner would lose the right to object to future infringing conduct by Google. The court was “troubled” by this aspect of the agreement. The judge stated:

The questions of who should be entrusted with guardianship over orphan books, under what terms, and with what safeguards are matters more appropriately decided by Congress than through an agreement among private, self-interested parties. Indeed, the Supreme Court has held that “it is generally for Congress, not the courts, to decide how best to pursue the Copyright Clause’s objectives.

The court illustrated the concern with a quote from a Texas woman who grandfather self-published his memoirs, Dust and Snow, she says,

From Google’s point of view, Dust and Snow is an “orphaned” book. If and when Google scans it, the company is likely to be unsuccessful in trying to locate the publisher, since the book was self-published and my grandfather is now deceased. In essence, the way the settlement is written, such “orphaned” titles are automatically handed to Google free of charge to do with, as it will. From my family’s point of view, Dust and Snow is not orphaned at all. It is very clear who owns the copyright. So why is Google being granted the automatic right to take over the copyright of books like my grandfather’s?

As noted earlier, Chin stated that such matters as “orphaned works” are best left to Congress rather than private entities to delineate and enforce through such an agreement.

As the literary agents Stuart Bernstein and Susan Bergholz expressed to the court so eloquently:

By accepting this settlement, the court will be setting a highly questionable precedent, usurping the role of the legislature by creating a legal loophole for one corporation and reversing the very foundation of copyright protection. We who have devoted our lives to assisting the work of creative individuals are left with a sense of moral indignation. We have pledged, in our contracts with clients, to sell or license their rights to ethically and financially sound purchasers and licensees. And for many years we have toiled over agreements and contracts to accomplish this, aided by the protections of the law. The situation we find ourselves in now is one of dismay and powerlessness, with only the weak ability to “object” or opt out. We beseech you to give authors back their rights. Force Google to negotiate like any other.

With regard to the fact that the ASA would give Google permission to digitize any work unless the copyright owner “opted-out,” the court also found this to be unpalatable, as it places an unnecessary and unwarranted strain on the copyright owner to initiate an action to prevent copyright infringement, when in fact; the responsibility should be placed on the entity wanting to use the copyright work.

As the Copyright Act explains,

When an individual author’s ownership of a copyright, or any of the exclusive rights under a copyright, has not previously been transferred voluntarily by that individual author, no action by any governmental body or other official or organization purporting to seize, expropriate, transfer, or exercise rights of ownership with respect to the copyright, or any of the exclusive rights under the copyright, shall be given effect under this title, except as provided under title 11.” (17 U.S.C. § 201(e).)

As David Nimmer, author of Nimmer on Copyright explains, “By its terms, Section 201(e) is not limited to acts by governmental bodies and officials. It includes acts

of seizure, etc., by any ‘organization’ as well.” However, under the ASA, any copyright owner who fails to notify Google and “opt-out” will lose their right to the copyright and deem Google competent to do with their copyright as they please.

In light of the previous lawsuits brought against Google by publishers and the current settlement recently rejected, Judge Chin says,

It is incongruous with the purpose of the copyright laws to place the onus on copyright owners to come forward to protect their rights when Google copied their works without first seeking their permission.

The Court was also sympathetic to concerns raised by Microsoft and Amazon that approval of this settlement would, in effect, give Google de facto monopolies over the digital book industry as well as the online search industry. This, of course, raises a number of antitrust concerns by effectively foreclosing competition.

In Google’s pursuit to provide the first digital library encompassing the estimated “174 million unique books,” the information giant has displayed the unequivocal lengths it is willing to take in order to bring more information to more people. As one individual put it, “Google pursued its copyright project in calculated disregard of authors’ rights. Its business plan was: ‘So, sue me.’” Google’s thirst for providing perpetual information to the consumer caused the company to overlook, whether intentionally or accidently, major copyright issues.

In rejecting the settlement, Judge Chin made one very keen observation in his conclusion: ” many of the concerns raised in the objections would be ameliorated if the ASA were converted from an “opt-out” settlement to an “opt-in” settlement.” He strongly urged the parties to consider such an option.

http://www.nysd.uscourts.gov/cases/show.php?db=special&id=115

The Utilitarian Idea of a Monopolistic Right in Intangible Property

March 22, 2011 by Barry Neil Shrum, Esq.

By Barry Neil Shrum, Esquire and Nathan Drake

The classical libertarian, Frédéric Bastiat, is quoted as saying:

In the full sense of the word, man is born a proprietor. . . . Faculties are only an extension of the person; and property is nothing but an extension of the faculties. To separate a man from his faculties is to cause him to die; to separate a man from the product of his faculties is likewise to cause him to die.

According to a recent article, entitled The Copyright Monopoly is a Limitation of Property Rights, the author, Rick Falkvinge, writing for TorrentFreak.com, argues that copyright is merely “a limitation of property rights” and is “not a property right.” This conclusion is incorrect and totally without any basis in U.S. history, not to mention world philosophy. Article 1, Section 8, Clause 8 of the United States Constitution directly refutes that by granting Congress the power

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

Our Forefathers, in this case James Madison and Charles Pinckney, based the idea of intellectual property rights on John Stuart Mill’s utilitarian philosophy. In other words, they were quite willing to violate the property of the few – i.e., the "rights" of individuals to use someone else’s intellectual property however they choose – if doing so would serve to advance the greater good of society as a whole. So, the original drafters of the Constitution did. They did not intend to grant partial ownership to the creator, but rather “exclusive rights” for a work derived from their intellect and creativity. That is to say, the idea that copyright is a monopoly is not the "carefully chosen" "rhetoric from the copyright lobby" of recent vintage as put forth by Falkvinge is completely false: rather, it is an idea that our Forefathers debated and discussed, and carefully chose to bestow upon Authors and Inventors.

Many fail to grasp the idea that the ownership of an intellectual property such as copyright is no different than ownership of real property, such a person owning their own house or piece of land. Both forms of ownership are based on societal laws and give the owner inherent rights to do with the property as they please. Just as the government prohibits individuals from reproducing and distributing copyrighted works, so does the government prohibits individuals from trespassing onto another person’s personal property or stealing their possessions. Are the latter "government-sanctioned private monopolies" that impose "limitations of property rights" on individuals other than the owner? You bettcha! That is, in fact, what a monopoly is: allowing an individual to control something to the exclusion of other competitors.

The significant different between real property (i.e. the chair in Mr. Falkvinge’s analysis), and a copyright (i.e. the DVD in aforesaid analysis), is that the chair is a tangible object, and its essence is easily grasped by our senses. A DVD, on the other hand, is a physical object which embodies, for example, a movie, or intellectual property, that is intangible and more difficult to conceptualize. When purchasing a copyrighted work such as a movie, one has to realize the two forms of property contained within that physical object that is the DVD. Falkvinge draws his analogy between the chair and the DVD as follows:

When I buy a movie, I hand over money and I get the DVD and a receipt…after the money has changed hands, this particular movie in mine.

This statement is factually and legally incorrect. Although the purchaser owns the physical embodiment of the DVD – and in fact may dispose of it any way he or she chooses – the purchaser does not own the intellectual property embodied within the DVD, and may not exercise dominion, or monopoly, over that property. The creator of the work, in fact, owns the intangible property encoded in the DVD, and the creator is within his/her rights, according to section 106 of the United Sates Copyright Code, to reproduce and distribute the work as they please due to the time, creativity and money that produced the work. The owner of the physical object containing the movie has no such rights. Our Constitution is what controls this fact, not just the copyright laws Congress has passed under its authority.

The umbrella of intellectual property, and more specifically Article I, Section 8, Clause 8 of the Constitution, also include the concept of patents. In the article, when Falkvinge compares the limitations copyright places on the purchaser of a DVD to the endless opportunities an ostensibly-expired patent gives the purchaser, he erroneously concludes that " patents are not relevant for this discussion." Oh, but they are. First, one cannot legitimately compare a patent with limitations that have expired to a copyright that currently retains its exclusive rights and limitations. In fact, one author has asserted that it is patents¸not copyrights, that place a greater restriction, or monopoly, on property rights. In Man, Economy, and State, Murray Rothbard concluded:

The patent is incompatible with the free market precisely to the extent that it goes beyond the copyright.… The crucial distinction between patents and copyrights, then, is not that one is mechanical and the other literary. The act that they have been applied that way is an historical accident and does not reveal the critical difference between them. The crucial difference is that copyright is a logical attribute of property right on the free market, while patent is a monopoly invasion of that right. Rothbard’s point is that businesses should not be restricted from independently designing and creating a product using natural laws and principles, even if it turns out to be similar to a patented product, even though our legal structure often operates in that manner.

But the greater point to made here is this: accepting the validity of a patent monopoly requires the acceptance of a copyright monopoly. Both rights are granted by the same Constitutional clause and, a priori, both are relevant to any discussion of government-granted monopolies. Second, simply because an individual purchases the physical embodiment of a chair design does not imply that they acquire full rights to disassemble, analyze, reengineer and distribute the chair commercially. To play with Falkvinge’s analogy, imagine that instead of chair, we are discussion the purchase of a new automobile, let’s say a Ford Mustang. Does one who purchases an automobile by virtue of that sales transaction, gain the right to deconstruct and reverse engineer the product, and start his or her own manufacturing facility to churn out duplicate cars in order to compete with Ford? Why, because there is intellectual property that is embodied in the automobile, just as there exists intellectual property embodied in a DVD, a CD and, yes, even an MP3 or an MP4. Based on the utilitarian teachings of John Stuart Mill, our society believes in rewarding an individual for the “fruits of their labor.” When labor is applied to raw goods by an individual in order to create an original expression of an idea, our society has agreed that this product is the property of the individual that created it. Our Constitution grants the creator of such product a limited monopoly in the exploitation of that creation. This brings me to my final point:

The copyright is, in fact, a “government-sanctioned private monopoly.” The ideology behind the monopolization of intellectual property is to “promote” and incentivize people to create works with the understanding and confidence that the time, energy and financial hardship involved will be fairly compensated. Without any supreme authority protecting the interests and livelihood of creators, the motivation to develop such a work arguably decreases dramatically. The implementation of the monopoly grants the property rights in the creator. As with all property rights, that grant places limitations on the persons who do not own the property.

So, the idea that "monopoly" is an evil concept which the lobbyist have attempted to associate with a "positive word such as ‘property,’" as Falkvinge argues, is historically, philosophically, and logically false. It is rather a concept that has been with us since the Code of Hammurabi first described laws regarding property; it was passed down to us by our Merry Old Ancestors from England; it is a right the participants of the Oklahoma Land Rush had to fight to exercise; and it is these rights – the right to exercise control over one’s intellectual creations – that assure a society in which ownership of property is exercised by the appropriate party by wielding their monopoly against those that would steal it away.

So yes, Mr. Falkvinge, a copyright monopoly is a limitation of property rights. But it is also a means by which the owner can exercise his or her property rights. The limitation is, in fact, on those who would steal their rights. So if this is a limitation on your rights to freely distributed copyrighted product, I’m ok with that and I think the majority of our society is as well.

As the French economist François Quesnay succinctly said: “Without that sense of security which property gives, the land would still be uncultivated.” In other words, if we don’t grant a monopoly to our "cultivators" of ideas, the landscape will be baron.

See also, Cleveland, Paul A., Controversy: Would the Absence of Copyright Laws Significantly Affect the Quality and Quantity of Literary Output? A Response to Julio H. Cole, Journal of Markets & Morality 4, no. 1 (Spring 2001), 120-126

del.icio.us Tags: Falkvinge,TorrentFreak.com,Constitution,Copyright,Copyright Law,Bastiat,John Stuart Mill,Utilitarianism,Monopoly,Property Rights,Intellectual Property

Technorati Tags: Falkvinge,TorrentFreak.com,Constitution,Copyright,Copyright Law,Bastiat,John Stuart Mill,Utilitarianism,Monopoly,Property Rights,Intellectual Property

French Court Finds Google Liable and Refused to Apply Safe Harbor Provisions of The Law of Confidence in the Digital Economy

March 18, 2011 by Barry Neil Shrum, Esq.

The search engine giant Google, known for its colorful name and creative endeavors, has been convicted in French Court of infringing the copyrights of four artistic works and now faces fines upwards of $600,000, not including legal costs and attorneys fees. The plaintiffs in the case was made up of four entities who owned the allegedly infringed copyrights: a photographer, the producers of the movie Mondovino, and two other documentary filmmakers responsible for the films Armenian Genocide and the Clearstream Controversy.

According to the plaintiff, "take-down" notices were sent to Google demanding that the copyrighted works be taken off their search engine and its "Google Video" component citing the alleged infringement. Although Google agreed to remove the content from their website, the works remained available, initiating further legal action by the plaintiff and involving the Court of Appeals in Paris. Google argued that monitoring individual internet posts to verify whether specific material appearing in a search result infringing copyright is a tedious, if not impossible, task. More importantly, it argued that such activity is ultimately not their responsibility. Google defended its position by citing Article 6 of the 2004 French act entitled Law of Confidence in the Digital Economy, which

“[e]xclude[s] civil and criminal liability on the part of hosts in two cases no knowledge of the disputed content or of its unlawful nature, and withdrawal of such content…these provisions could not impose liability on the host merely because it had not withdrawn information reported by a third party as being unlawful…”

The French protections are very similar to the safe harbor provisions of the U.S. Digital Millennium Copyright Act of 1998. But the Court of Appeals in Paris refused to give Google safe harbor under the law. Instead, in four separate decisions (three rendered on January 14, 2011 and one on February 4), the Court assessed approximately $600,000 in damages for what it called “préjudice moral” and infringement.

Google has appealed the decision with the highest court in France, Cour de Cassation, which acts strictly as an appellate court, and the prospects for Google on appeal look more promising as they begin process. In 2009, the Cour de Cassation ruled that the video hosting website, Dailymotion, was not liable for providing the film “Joyeux Noël” because the provider did not have "explicit knowledge" of the infringed material being on their website, basing its decision on Article 6 of the Law of Confidence in the Digital Economy. According to Article 6, three criteria must be met to invoke knowledge of infringed material, including specifically that “notifications should indicate precisely which content is alleged to be unlawful, its precise location on the website and the reasons why it is unlawful.” Google intends to use this ruling to their favor as they embark on a case that will likely become the first of many.

http://www.ipbrief.net/2011/03/13/the-unimaginable-happened-google-sued-for-copyright-infringement/

http://www.twobirds.com/English/News/Articles/Pages/Paris_CourtofAppeal_Dailymotion_host.Aspx

http://www.juriscom.net/actu/visu.php?ID=949

http://merlin.obs.coe.int/iris/2004/7/article18.en.html

Immigration and Counterfeit Enforcement Agency Brings Criminal Charges against Owner of ChannelSurfing.Net

March 8, 2011 by Barry Neil Shrum, Esq.

By Barry Neil Shrum & Nathan Drake

In November 2010, the Federal Immigration and Counterfeit Enforcement agency (“ICE”) recently seized 82 websites and shut them down on the grounds that they were committing criminal copyright infringement. One of these websites has recently become the spotlight of attention:. Brain McCarthy, the owner and operator of channelsurfing.net, has been arrested by ICE and charged with providing free streaming content to NFL, NHL and NBA sporting events. According to the ICE, McCarthy accumulated approximately $90,000 from advertisers on his website, and has received over 1.3 million hits since being obtained last month, depicting the significance of the website.

ICE acts as the principle investigative arm of the United States Department of Homeland Security and is currently the second largest investigative arm of the federal government. What makes ICE’s action unusual is that McCarthy is charged with criminal copyright infringement, since most other cases involving copyright infringements are brought against defendants in civil court in search of damages. If charged as a criminal, McCarthy could serve up to five years in prison and pay substantial monetary fines.

These actions by ICE create a certain level of perplexity in the eyes of the public. In the eyes of many, including the editors of TechDirt, ICE’s actions are not justificed since, at the time of the channelsurfing.net seizure, the website ostensibly did not “possess” any copyrighted material, but rather only provided links to other website/servers where the infringing material resides. Is the criminal charge levied against McCarthy warranted if he was merely acting as a conduit of infringing information?

Perhaps the answer lies in the criteria constituting criminal copyright infringement in United States Code Title 17 U.S.C. § 506(a) and 18 U.S.C. § 2319. The code states that the prosecutor must show the following elements to prove criminal infringement:

(1) that a valid copyright; (2) was infringed by the defendant; (3) willfully; and (4) for purposes of commercial advantage or private financial gain.

To apply the analysis, it’s necessary to understand, on a technical level, what is happening on the McCarthy’s website. He is providing a “link,” i.e., a form of hypertext markup language, or HTML, that, when clicks, directly a stream of video to the user within the structure of McCarthy’s website. So the question become whether the criteria has been met. Let’s examine it:

Is there a valid copyright? Yes. This is easy. The NFL, NHL, NBA, etc. all possess valid copyrights in their broadcasts.

For purposes of financial gain. No doubt. Here, McCarthy obviously profits from the availability of the infringing material on his website, regardless of where the material is stored.

Wilfully infringed by the Defendant. Here is perhaps where some debate might occur as to McCarthy. Was his intention in placing the links on the site to infringe the copyright owner’s rights? If so, was it wilful?

One case that has examined the issue of whether embedded HTML code can serve as the basis for copyright infringement is Perfect 10 v. Google decided by the 9^th Circuit. In that case,, Google was accused of civil copyright infringement for using a database of “borrowed” photographic images and making them available on their website when a user performs a search. The Citizen Media Law Project at Harvard University explained the ruling on this case as follows:

“The court went on to conclude that HTML instructions do not themselves cause infringing images to appear on a user’s computer screen because the HTML instructions merely convey an address to the user’s browser, which itself must then interact with the server that stores the infringing image. Accordingly, the mere provision of HTML instructions, in the view of the 9th Circuit, does not create a basis for direct copyright infringement liability.”

Several things should be noted about the 9th Circuit’s opinion. First, this case involved civil liability for copyright infringement, not criminal. The elements for civil copyright infringement are very different than those for criminal infringement. Secondly, the 9^th circuit court is known as a radical circuit and many of its decisions are on the fringe. It’s rulings certainly do not hold the clout of the U.S. Supreme Court. Nonetheless, the decision, though it will likely be challenged, provides a new and thought provoking perspective.

So, bottom line, what do we think about McCarthy? In my opinion, the 9th Circuit is off base in regard to providing HTML code that “merely convey[s] an address to the user’s browser” which it must then “interact” with to obtain the infringing image, which is stored on a different story. What the court complete overlooks is that this is the very essence of vicarious joint & several liability! It’s a well-established principle of copyright law that everyone in the chain of distribution is jointly and severally liable for the actions of the primary infringer. Taking this theory out of the physical realm and putting it into the digital realm should not change its application. In my humble opinion, Mr. McCarthy likely knew what he was doing. He is providing users with access to multiple portals that provide them with streams of illegally obtained intellectual property, much as a vendor on the streets of New York city provides pedestrians access to counterfeited Rolexes! The fact that he does not “warehouse” the goods, in either case, does not change the fact that he is facilitating the infringement.

Arguably no other circumstances in the history of law has caused so many problems of application as the invention and development of the Internet. This virtual world as wonderful a resource as it is, allows for greater efficiency and anonymity for infringers than ever thought possible, serving as a double-edged sword for this generation. While some may view the efforts of those pursuing copyright infringement via the Internet futile – in fact many consider copyright itself unnecessary as a result of the Internet – these enforcement efforts are nonetheless important and essential in maintaining the rights set forth by our forefathers over a century ago: rights of monopoly balanced with limitations and public access. If we as a society do not honor these goals, it is probable that we will be faced with a less creative society.

http://www.techdirt.com/articles/20110104/12324012513/did-homeland-security-make-up-non-existent-criminal-contributory-infringement-rule-seizing-domain-names.shtml

http://paidcontent.org/article/419-feds-campaign-against-pirate-websites-leads-to-an-arrest/

http://www.techdirt.com/articles/20110303/16584013356/ice-arrests-operator-seized-domain-charges-him-with-criminal-copyright-infringement.shtml

http://www.ice.gov/about/overview/

http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/crm01847.htm

98% of all Statistics are Made Up on the Spot! Fact is, copyright infringement DOES kill jobs.

March 2, 2011 by Barry Neil Shrum, Esq.

Mark Twain had a lot to say about statistics, ranking them as the highest of all lies: “There are three kinds of lies: lies, damned lies, and statistics. Twain is also attributed with the more insinuated saying that “statistics are like ladies of the evening, once you get them down, you do anything with them!” It’s been quite awhile since I’ve seen a manipulation of statistics that illustrates Twain’s philosophy about them more than what is found in the article posted by self-styled “political evangelist” and anti-copyright activist, Rick Falkvinge, this week entitled Kill Copyright, Create Jobs. Absent three very slick and attractive graphics, the only “facts” that Falkvi

nge offers in support of this conclusion is statistics which, as far as I can tell, are made up!

In an effort to defeat the claims of the United Kingdom’s “copyright industry” that 1.2 million jobs will be lost by 2015 if stricter enforcement of copyright laws is not enacted, Falkvinge begins with the exaggerated conclusion that “for every job lost (or killed) in the copyright industry due to nonenforcement of copyright, 11.8 jobs are created in electronics wholesale, electronics manufacturing, IT, or telecom industries — or even the copyright-inhibited part of the creative industries.”

Falkvinge reaches this absurd conclusion through a somersault of logic involving segregating the “creative industries” into various categories of groups subdivided into “copyright-dependent” and “copyright-inhibited” sectors. Of course, these phrases are never precisely defined but, reading between the lines, the reader can gather that the latter sector includes industries “fueled by a lack of copyright monopoly enforcement,” while the former we must assume includes some form of enforcement. Once he groups the various creative industries according to this loosely defined structure, he asserts that “the contribution of the copyright-inhibited industries outweigh the copyright-dependent industries by a factor of 11.8,” and then draws the leap of faith that when a copyright-dependent job is lost, a copyright-inhibited job is created. He then forms this general conclusion: “Prevent copyright enforcement, or weaken or kill copyright, and create jobs. Lots more of them.” Wow! Please, Obama, take note of this staggering feat of intellectual prowess!

There are so many errors in this article, it’s hard to begin, and I don’t intend to address each one. But as you start to examine the sectors of industry that Falkvinge places into these divisions, you can easily see where his analysis falls apart. Seriously, I don’t think it’s intended so much as analysis as it is rhetoric. Nonetheless, let’s look at some examples.

In the first instance, Falkvinge erroneously relies on the conclusions of Peter Higgs in Beyond the Creative Industries for his foundational argument that the “creative industries” of the U.K. only account for 7% of its GDP, which he divid

Creative-Industries-By-Copyright-Dependency

es into three categories: copyright-dependent, copyright-inhibited and copyright-agnostic. I say he relies on this statistic “erroneously” because the 7% figure contained in Higgs’ report is based on what Higgs calls the “creative core” of the industry, not the entire industry. Higgs’ defines the creative core as the “pre-creative and creative stages of the value chain” (p. 27). This approach, Higgs establishes, only focuses on those involved in the initial stages of creation, i.e., the musicians, the dancers, the producers, etc (p. 28). Thus, by default, the analysis does not factor in the post-creation employment of the creative industry and, thus, cannot be used in support of Falkvinge’s overall asssertion that on 7% of the GDP of the United Kingdom is based on the creative industries.

Second, in one sweeping yet unexplained fell swoop, Falkvinge places the entire advertising and marketing industry in the “copyright-inhibited” category. Last time I checked, the advertising and marketing industry relied in large part on the creation of intellectual property, much of which is copyrighted work which relies on enforcement. In another breathe, again without laying any factual foundation, he states that only 25% of the software, electronic publishing, games, film, television, radio and photography industries are “copyright-dependent.” Twenty five percent? Seriously? Then he “estimates” than only 50% of the music and performing arts sectors of the creative industry are dependent on copyright protection. Again, really?

With regard to his category of “architecture, visual arts and design,” Falkvinge’s “analysis” is totally off the mark. First, again, he simply asserts that 100% of the architecture industry is copyright-inhibited, meaning it does not rely on copyright protection for enforcement. He doesn’t define whether he is referring to architecture as a visual art or whether he is referring to the more intellectual and abstract protection of the actual structure which the U.S. Congress protected in 1996 with the Architectural Works Copyright Protection Act. One can only assume that Falkvinge is unaware that the U.S. and most other Berne Convention signatory countries protect such works, since he groups architecture with the visual arts.

Secondly, Falkvinge lumps all of the “visual arts and design” industry into “fashion design” and then asserts that it is “copyright agnostic,” since fashion design is not entitled to copyright protection. Ignoring the fact that there

Copyright-Dependent-Vs-Inhibited-Industries-GDP

are many other arts to be considered in the visual arts and design sector of a country’s industries, let me just address the last assertion about fashion design. There are several nations that actual do offer copyright protection for fashion design, namely the European Union, and France individually, and Japan, just to point out a few. The U.S. currently has legislation pending that would follow in the footsteps of these country and protect U.S. fashion designers whose designs are pirated as soon as they are released. (See this post on Law on the Row regarding the pending legislation).

As Falkvinge draws to a long and painful conclusion, he states that U.K’s “monopolized entertainment [industries’]” claim that they will lose 1.2 million in jobs by the year 2015 is “deceptive, dishonest and bordering on fraudulent,” which he uses to link to another self-aggrandizing article in which he claims that we as a culture are creating now more than ever, that copyright monopolies are an obstacle, and the copyright abolishment would only intensify this effect. All I can say to Falkvinge’s claim is bull$^!+. Isn’t that something akin to the pot calling the kettle black? Is it really deceptive to say that most of my songwriting clients, the people who write the music, are struggling to feed themselves and have to take full time retail employment to make ends meet? Is is dishonest to say that those same songwriters do not create as much music as they did before they were forced to work 10-12 hours a day to support their families? And how can you deny the decline in sales of recorded music? How can you deny the falling profits of the world’s entertainment conglomerates? I certainly don’t pretend to know about the music industry of the U.K., but I do know that the local economy in Music City U.S.A., Nashville, Tennessee has suffered dramatically as a direct result of illegal downloading of copyrighted works. I certainly know that this has a trickle down effect on all sectors of the music industry here, including my own practice! If any of these claims are fradulent, then call me a fraud.

Long before Falkvinge began spinning his illogical analyses, a company of men including Jefferson, Madison and Pinkney and other great thinkers of their day dealt with the issue we are dealing with – should creative ideas be entitled to protection as individual property? These men debate natural law versus utilitarianism, and ultimately derived what is arguably a very workable system of protecting intellectual properties. The U.S. system is based on theories like those of Thomas Hobbes and John Locke, who believed that we should “give to every man his own,” and that man acquired the ownership of property by exerting labor and converting nature – in this case ideas – into something that benefits society. In fact, Locke believed that because a work created by an individual enriched society in general, and would theoretically continue to do so in the future, the author should have the right to be compensated as long as that benefit to society continued. But, our Forefathers also wisely saw that in order to create, it is helpful to have a thriving public domain, so they placed certain limitations on these rights, namely granting the monopoly for “limited time.” The “monopoly” of copyright protection – Falkvinge derisively refers to it as the “copyright monopoly” as if it’s a bad thing – is merely a reflection of these ideas. If we believe that one should benefit from his or her own creation, his or her own expression of an original idea, then laws and rules are the only way to enforce that in a developed society. Because of the wisdom of our Forefathers, we have that in Article I, Section 8, Clause 8 of the U.S. Constitution. For my money, the logic of Locke, Hobbes, Jefferson and Madison surpasses the diatribe of Falkvinge at least by a factor of 11.8 to 1!

So, in summary, I am quite certain that Falkvinge, if he even takes note of my existence, would categorize me as just another one of the “lawyer who advocate maximization of the copyright monopoly.” He would likely also allege that my claims are misleading if not bordering on fraudulent. Regardless, I think that it is evident that Falkvinge’s assertion that for every 1 job lost to copyright infringement, 12 more will pop up to replace them is unfounded and, frankly, completely manufactured.

The Magical Ring of Gyges: Why Illegal Downloading is So Rampant in the Age of Cyberspace

February 28, 2011 by Barry Neil Shrum, Esq.

NBC Universal recently hired a company called Envisional to study counterfeiting activity over the Internet. The results of this study – despite the fact that it is industry funded – are literally astonishing: 24% of all global Internet traffic involves digital theft! Stated another way, one in every four people surfing the Internet are stealing intellectual property, i.e., illegally downloading either copyrighted or trademarked materials. According to the International Federation of the Phonographic Industry, 95% of the music downloaded from the Internet is downloaded illegally! Imagine how our society would react if one out of every four people in retail malls were carrying out stolen merchandise on a daily basis, or if 95% of the product leaving the mall was stolen. It would be chaos.

Now consider whether these people who so quickly download a song or a movie on the Internet without paying for it would also walk up to an artist selling their painting in the park and steal one of their painting. I firmly believe the answer to that question is a resounding no! But why? What is different about the world wide web, i.e. cyberspace, that gives these consumers the feeling that they are entitled to download music and movies through mechanisms like BitTorrent without compensating those who created such product? What are these people thinking?

I think the answer can be found in the writings of Plato. In the second book of his Republic, Plato’s student, Glaucon, poses the illustration of the “Ring of Gyges.” In the story, Gyges is a shepherd who finds a magical ring in a chasm created by a lightning storm. The ring gives him a cloak of invisibility. Using his newfound power, Gyges seduces the Queen of Lydia, murders the King, and takes the throne, gaining power, wealth and fame. In the Republic, Glaucon argues that given a similar opportunity, any person, whether or not they were previously just or unjust, would use the power to commit as many crimes as necessary to get what they want [Book II, 359d]. Glaucon was responding to Socrates’ refutation of arguments put forth by Thrasymachus in Book I of the Repbulic, i.e., that “justice is nothing but the advantage of the stronger” [Book I, 338c].

I believe Glaucon’s experiment in thought informs us as to why someone who would not normally steal a tangible object in the physical world is nonetheless more than willing to download music or movies, intangible objects, on the Internet for free: because the fear of being punished or getting caught is eliminated in the evanescent world of Cyberspace. The Internet, like Gyge’s ring, confers upon its users a seeming cloak of indivisibility as it were. As one astute commentator surmised in response to an interview with Alice in Chain’s lead singer, Sean Kinney, “The real reason people steal music is that they CAN and very easily.” That this is a truth is evident from the plethora of “how to” guides on the Internet, teaching people “How not to get caught.” There you have it in a nutshell. All of the commentary about how the record industry has been thieves and how the RIAA unjustly goes after the defenseless people, these are mere justifications for actions people otherwise know in their hearts are wrong.

It’s important to read Plato’s response to his student to understand fully, as Plato did not agree with Glaucon. Plato’s argument in the remaining portion of the Republic is that the just man would not be tempted by this cloak of invisibility to commit crimes. Rather, the just man understands that crime itself makes a person unhappy and that he is better off to remain just. I frequently discuss this issue with my college students at Belmont University when teaching a course on Copyright Law. One of my students made the following observation, which confirms Plato’s conclusion. She said:

I do not follow the rules because I am scared of the RIAA busting me for illegal downloading. I follow the rules because I have respect for the people who wrote and recorded the songs, and even more, because I want to work in the music industry.

Another relevant opinion is offered in the excellent blog article found on arbiteronline entitled Illegal downloading: The real cost of ‘free’ music.” In that article, a student at Boise state, Ammon Roberts, is quoted as saying:

“I don’t do it because I don’t feel it’s right. If I were making the music, I’d be upset if people were downloading it for free.”

For these two students, following the rules is not about whether or not they’ll be caught, it’s about doing the right thing. It’s about honoring, i.e. compensating, the people who created the music. This illustrates Plato’s point precisely: a just person understands that even with a cloak of invisibility, doing the right thing makes a person happy or, in the words of Roberts, makes the person “feel right.”

The Internet is also very much the Land of Oz. In addition to this cloak of invisibility endowed on us by the Internet, it also deceives us with illusions of anonymity – not so much that the user is anonymous, as that’s merely another form of invisibility – but in the sense that it’s difficult to know who’s behind the curtain. As Trent Reznor said in an interview, “there is a perception that you don’t pay for music when your hear it . . . on MySpace.” Because of its sheer vastness and its mysteriousness, Cyberspace gives people false perceptions that their actions on the Internet do not affect real people. This, in turn, creates an illusion that “resistance is futile.” Everyone is doing it, so I can too. In other words, Cyberspace alters our reality in that it makes the real people behind the music an amorphous, anonymous entity. The result is that it’s much easier to steal from an amorphous, anonymous entity – the man behind the curtain – than it is from a struggling songwriter, particularly when all your friends are doing it.

I truly believe that most of the people who are illegally downloading music from the Internet have no idea who they are affecting or how widespread the effect is. Most of these people would not even think about walking up on stage after a singer/songwriter in a nightclub takes a break and stealing his guitar, but that very same person doesn’t think twice of taking that same singer/songwriter’s song from the Internet. They wouldn’t steal the filmmaker’s camera, but downloading the movie doesn’t phase their consciousness. In fact, many who contribute to the dialog would argue that these two thefts are not analogous. But one analysis conducted by the Institute for Policy Innovation states otherwise. The report indicated that music piracy causes $12.5 billion of economic losses every year. It further concluded that 71,060 U.S. jobs are lost, with a total loss of $2.7 billion in workers’ earnings. Such reports abound throughout the industry, yet many of the people guilty of illegal download continue to view these reports as industry-driven and, therefore, skewed. Take this comment by blogger Michael Arrington as an example:

Eventually the reality of the Internet will force the laws to change, too. One way or another the music labels will eventually surrender, and recorded music will be free. Until it is, I refuse to feel guilty for downloading and sharing music. Every time I listen to a song, or share it with a friend, I’m doing the labels a favor. One that eventually I should be paid for. Until that day comes, don’t even think about trying to tell me that I’m doing something ethically wrong when it’s considered quite legal, with the labels’ blessing, in China.

But what this illusion of anonymity, and such misguided opinions, miss is the fact that very real people – not amorphous masses – are being affected. And the effect is devastating. I have clients who are songwriters who are no longer creating art because they are forced to take odd jobs to support their families. The performance royalties they used to receive from ASCAP, BMI or SESAC are down by half or more from a few years ago. Their mechanical royalty checks are virtually non-existent. They simply cannot afford to create simply for the sake of creation. And now, working sometimes two jobs, they don’t have the time to create. What will become of the art of songwriting if Mr. Arrington has his way and all recorded music is free? I believe we will not have the quality of music in this country that we have enjoyed throughout the last millennium. In this instance, I do not believe that resistance is futile.

Now, getting back to Plato and the Ring of Gyges, in answer to Glaucon, Plato would say that the root of all trouble is unlimited desire. How true is that in this world of Cyberspace, in this world of rampant illegal downloading. The wheels really fell off the wagon when the RIAA sued Diamond Multimedia, bringing the MP3 into society’s field of view. Then, Napster exploded and almost everyone found that almost every song they ever loved was available for free. It’s as if they were Harrison Ford and discovered the treasure room in an unknown, ancient tomb: everything your heart desires is within your grasp. It’s yours for the taking. With its cloak of invisibility and its illusion of anonymity, what the Internet has done, in short, is to return the power – i.e., the control – back to the people. Everyone is now a creater, a publisher, and distributor. No one needs the conglomerates anymore – the people have the power. But, as Lord Acton said, beware: “Power tends to corrupt, and absolute power corrupts absolutely.” With power, therefore, comes responsibility. Unfortunately for the music industry, the power is currently being abused and will, ultimately, mean the end of the recording industry as it existed through the 20th century unless the creators regain that power.

So what does this mean for those of us who have chosen to make our living in the world of creation? Does it mean the end of our industry? Does it mean an end to copyright law as it exists? If we examine the origins of copyright – i.e., the protection of an original idea expressed in a tangible format – as passed down to us from our forefathers, we find a concept on which we can continue to build. In the now famous Radiohead experiment in which Reznor and crew allowed consumers to pay what and only if they wanted to, 18% of the consumers chose to do so! That to me, is an encouraging statistic, and one that confirms a believe in the viability of creating art. At least one in five people, even with the cloak of anonymity provided by the Ring of Gyges of this era, i.e., Cyberspace, chose to pay the creators for their creation. Take that Glaucon! Take that Arrington! What does that say for our society? It says that there are people who still chose to do the right thing, even when the tide of conformity rises above their heads.

The bottom line is that it really doesn’t matter what laws are passed by society, there will always be a certain percentage of people who will chose to steal, take and plunder, whether it be because they are more powerful or because they are cloaked with invisibility or shielded by anonymity. But – and here is the important thing – there will also always be a segment of society that recognizes the idea that Thomas Hobbes first advanced hundreds of years ago, i.e., the idea of “giving to every man his own.” If a man bakes a loaf of bread, is it not his right to trade that to the artist for whose painting he wishes to barter? This idea was later incorporated by our Forefathers into Article I, Section 8, Clause 8 of the U.S. Constitution, which gives Congress the authority “[to] promote the progress of science and useful arts, by securing for limited times to Authors and Inventors the exclusive rights to their respective Writings and Discoveries.” Without this Constitutional right, a creator has no hope of protecting his or her property against plunder. And as long as a segment of society believes this proposition to be beneficial to society as a whole, it will hopefully continue to motivate creators to create, and so profit from their creations, despite the efforts of those who choose to destroy it under a cloak of invisibility and unjustly take for themselves the kingdom of Lydia.

Quotations from Republic are taken from the W.H.D. Rouse translation, Great Dialogues of Plato, Mentor Books, 1956, a quoted in this fine article on the topic.

Congress proposes Copyright Protection for Fashion Design

February 14, 2011 by Barry Neil Shrum, Esq.

By Nathan Drake

The wildly popular and quickly emerging fashion giant, Forever 21, has endured numerous obstacles since its inception into the fashion industry 27 years ago. Recently however, Forever 21 has encountered a new type of hurdle; copyright infringement. In the January 24th edition of Bloomberg Businessweek, Susan Berfield explains, “Starting in about 2004…labels ranging from Diane von Furstenberg to Anna Sui to Anthropologie, about 50 in all, separately sued Forever 21 for copying their clothes.” According to Susan Scafidi, a copyright professor at Fordham University Law School and director of the Fashion Law Institute, “Of the various fast fashion chains, Forever 21 is the one who treats liability as a cost of doing business…Illegal copying has been incorporated into their business model.” In response to this increasing litigation and skewed mentality in the fashion industry, numerous senators, including Senator Schumer and Senator Clinton, introduced a bill in 2006 amending Title 17 of the Copyright Act of 1976 of the United States Code to include copyright protection for “fashion design.” If it passes, this would represent the first addition of a new protected class of copyrighted works since Congress passed the Architectural Works Copyright Protection Act in 1989.

Consequently, the question that looms in the minds of those opposing copyright protection for fashion design is simple: How does one successfully and fairly protect something as functional and practical as clothing? While certain designers and fashion lines will have their own character and price tag, allowing certain individuals to own sleeve designs or collar configurations would prove absurd and oppressive. Just as architecture laws do not provide copyright protection for “functional elements,” such as doors, windows, walls or ceilings, fashion design is limited in what it can deem copyrightable, i.e., original, due to the utilitarian use of clothing.

Support for copyright protection in the fashion industry has gained a backing from several prominent designers and New York’s Council of Fashion Designers of America, according to Louis S. Ederer and Maxwell Preston of Arnold and Porter LLP. The main opponent of the bill has been the American Apparel and Footwear Association. As Preston and Ederer explain, the AAFA has opposed the bill for several reasons, including, but not limited to ambiguous language in prosecuting copyright infringement and the perceived lack of resources to accommodate the influx of applications the Copyright Office would likely encounter. In response to these complaints, Senator Schumer and his colleagues have revised and submitted a new bill to the Senate as of August 5, 2010 (S. 3728).

In the eyes of the law, clothing serves a “utilitarian” purpose in covering a person’s body, so attempting to separate the fashion design from the clothing becomes a very difficult task. Essentially, the copyright law wants to prevent functional styles, such as the collared shirt or the “v-neck,” to remain unprotected due to the utilitarian and practical purpose it provides. To assure this, the current requirements of the Copyright Act would still apply, i.e.¸ that the fashion design would need possess a “modicum” of originality in order to be eligible for copyright protection. The current draft of the S. 3728 specifically states that the fashion design must “provide a unique, distinguishable non-trivial and non-utilitarian variation over prior designs for similar types of articles” (Section 2(a)(2)(B)(ii)).

Furthermore, while there is no perfect answer for an issue as complex as copyright protection for fashion design, working to promote a healthy industry by awarding creativity is an important principle. The revised bill, currently called the “Innovative Design Protection and Piracy Prevention Act” was introduced on August 5, 2010 and remains in the Senate to be discussed and voted on.

The author, Nathan Drake is a senior at Belmont University from Northville, Michigan who graduates in May with a degree in Music Business from the Mike Curb School of Music Business. Nathan currently clerks for Mr. Barry Neil Shrum at Shrum & Associates in Nashville, Tennessee. He plans on pursuing a law degree after graduation.

References

Berfield, Susan. “Forever 21′s Fast (and Loose) Fashion Empire.” Bloomberg BusinessWeek. 20 Jan. 2011. Web. 14 Feb. 2011. <http://www.businessweek.com/magazine/content/11_05/b4213090559511_page_2.htm>.

“Copyright Law of the United States.” U.S. Copyright Office. Oct. 2009. Web. 7 Feb. 2011. <Copyright.gov>.

Ederer, Louis S., and Maxwell Preston. “The Innovative Design Protection and Piracy Prevention Act – Fashion Industry Friend or Faux?” Business Solutions & Software for Legal, Education and Government | LexisNexis. 25 Aug. 2010. Web. 07 Feb. 2011. <http://www.lexisnexis.com/Community/copyright-trademarklaw/blogs/fashionindustrylaw/archive/2010/08/25/the-innovative-design-protection-and-piracy-prevention-act-fashion-industry-friend-or-faux.aspx>.

Schumer, Charles. “Bill Text – 111th Congress (2009-2010).” THOMAS (Library of Congress). 5 Aug. 2010. Web. 07 Feb. 2011. http://thomas.loc.gov/cgi-bin/query/D?c111:1:./temp/~c11198mPaA::.

Nothing left to lose – the ongoing war on copyrights

February 9, 2009 by Barry Neil Shrum, Esq.

Kris Kristofferson and Fred Foster once penned one of my favorite lyrics in the song Me and Bobby McGee, i.e., “freedom’s just another word for nothing left to lose.” The sentiment is perhaps appropriate for the ongoing war that is being waged against copyright laws as we know them. The latest battle in this war was fired by the esteemed Lawrence Lessig, famous lawyer and copyright scholar, in his new book Remix: Making Art & Commerce Thrive in the Hybrid Economy. If Lessig has his way, the songwriter and music publisher will, indeed, have nothing left to lose.

The main goal of the book is the demolishment of existing copyright laws, which Lessig has described as Byzantine. He believes our current copyright laws are futile, costly and culturally stifling. The “hybrid economy” is described by Lessig as one in which a “sharing economy” coexists with a “commercial economy.” See this very humorous interview by Stephen Colbert. He gives examples such as YouTube, Flikr and Wikipedia, which rely on user-generated “remixes” of information, images and sound to illustrate his point. This “hybrid economy,” in Lessig-speak, is identical to what he calls a “Read/Write (RW)” culture — as opposed to “Read/Only (RO)” — i.e., a culture in which consumers are allowed to “create art as readily as they consume it.” Thus, the “remix” to which he refers is the concept of taking another persons copyrighted work and “making something new” or “building on top of it.” This is what us less-published copyright lawyers like to refer to as a derivative work! And that is the crux of Lessig’s problem: the copyright law DOES in fact make provision for this type of creative endeavor, provided that the creator of the derivative work gains the permission of the copyright owner. This is that with which Lessig seeks to do away.

In the Colbert interview, Lessig drolly points out that 70% of our kids are sharing files illegally and that the “outdated” copyright laws are “turning them in to criminals.” This reminds me just a bit of what my Daddy used to tell me: just because everybody’s doing it doesn’t make it right! Or, as Colbert blithely responded, “isn’t that like saying arson laws are turning our kids into arsonists?” The obvious conclusion is that perhaps the law is simply not the problem.

Colbert then comically crosses out Lessig’s name on the cover of his his advance copy of Lessig’s book, draws a picture of Snoopy inside, and then questions Lessig as to whether the book was now his (Colber’t’s) work of art, to which Lessig says “that’s great,” we “jointly” own the copyright. That’s a point to which Lessig’s publisher, Penguin Press, would surely not acquiesce. In the final retort to Lessig, Colbert makes the point that he likes the current system, and I quote, “the system works for me.” I might add that the system seems to be working extremely well for Lawrence Lessig as well. Lessig is making a fortune exploiting the very system he criticizes as antiquated – the very essence of free speech, I suppose, but in the final analysis, a bit disingenuous.

While I do admire Professor Lessig for working toward a solution to a perceived problem, it’s very difficult to believe that tearing down the entire system of copyright laws in order to accommodate a large percentage of prepubescent teenagers who are too cheap to pay for their music is the appropriately measured response we need in this instance. Call me crazy.

Here are several good critiques of Lessig’s work and ideas here for further exploration of this issue:

The Future of Copyright, by Lawrence B. Solum (download PDF from this page)

Lessig’s call for a “simple blanket license” in Remix, by Adam Thierer