Goliath Just Got Smaller: Free Software Foundation Establishes Expert Witness Defense Fund to Fight RIAA Lawsuits

The Free Software Foundation has established an Expert Witness Defense Fund to "help provide computer expert witnesses to combat RIAA's ongoing lawsuits, and to defend against the RIAA's attempt to redefine copyright law." Ray Beckerman and a group of selected attorneys will advise the fund. You can make tax deductible contributions to the fund, which is a registered 501(c)3 organization.

Infringement Nation: Does Typical Digital Technology Use Made Us All Infringers?

John Tehranian, Professor of Law at the University of Utah, has written a paper for the Utah Law Review titled "Infringement Nation: Copyright Reform and the Law/Norm Gap."

Here's an excerpt from the paper where Tehranian summarizes the infringement activity of a hypothetical U.S. law professor during a single day:

By the end of the day, John has infringed the copyrights of twenty emails, three legal articles, an architectural rendering, a poem, five photographs, an animated character, a musical composition, a painting, and fifty notes and drawings. All told, he has committed at least eighty-three acts of infringement and faces liability in the amount of $12.45 million (to say nothing of potential criminal charges).

If copyright holders were inclined to enforce their rights to the maximum extent allowed by law, he would be indisputably liable for a mind-boggling $4.544 billion in potential damages each year. And, surprisingly, he has not even committed a single act of infringement through P2P file sharing. Such an outcome flies in the face of our basic sense of justice. Indeed, one must either irrationally conclude that John is a criminal infringer—a veritable grand larcenist—or blithely surmise that copyright law must not mean what it appears to say. Something is clearly amiss. Moreover, the troublesome gap between copyright law and norms has grown only wider in recent years.

Eduserv Releases Study about the Use of Open Content Licenses By UK Heritage Organizations

The Eduserv Foundation has released Snapshot Study on the Use of Open Content Licences in the UK Cultural Heritage Sector (Appendices).

Here's an excerpt from the "Executive Summary":

This study investigates the awareness and use of open content licences in the UK cultural heritage community by way of a survey. Open content licensing generally grants a wide range of permission in copyright for use and re-use of works such as images, sounds, video, and text, whilst retaining a relatively small set of rights: often described as a ‘some rights reserved’ approach to copyright. For those wishing to share content using this model, Creative Archive (CA) and Creative Commons (CC) represent the two main sets of open content licences available for use in the United Kingdom.

The year of this survey, 2007, marks five years from the launch of the Creative Commons licences, two years since the launch of the UK-specific CC licences and two years as well since the launch of the UK-only Creative Archive licence.

This survey targeted UK cultural heritage organisations—primarily museums, libraries, galleries, archives, and those in the media community that conduct heritage activities (such as TV and radio broadcasters and film societies). In particular, this community produces trusted and highly valued content greatly desired by the general public and the research and education sectors. They are therefore a critical source of high-demand content and thus the focus for this project. The key objective has been to get a snapshot of current licensing practices in this area in 2007 for use by the sector and funding bodies wishing to do more work in this area.

Over 100 organisations responded to this web-based survey. Of these respondents:

  • Only 4 respondents out of 107 indicated that they held content but were not making it available online nor had plans to make it available online;
  • Images and text are the two content types most likely to be made available online;
  • Sound appears to be the most held content type not currently available online and with no plans to make it available in the future;
  • Many make some part of their collection available online without having done any formal analysis of the impact this may have;
  • 59 respondents were aware of Creative Archive or Creative Commons;
  • 10 use a CA or CC licence for some of their content; and
  • 12 have plans to use a CA or CC licence in the future.

In a Win for the MPAA and RIAA, the College Opportunity and Affordability Act of 2007 Is Approved by the House Education and Labor Committee

Despite the opposition of higher education officials, the College Opportunity and Affordability Act of 2007 was approved by the House Education and Labor Committee with an illegal file sharing provision intact.

Read more about the provision and its approval at "Campus Copyright Mandates Threaten Financial Aid Funds and Campus Networks," "House Antipiracy Measure Passes through Committee," "House Committee on Education and Labor Puts out 'Supporters of Intellectual Property Theft' Propaganda," "Politicos Near Vote on Anti-P2P Rules for Universities," and "Swiftboating Higher Education on P2P."

Urgent EDUCAUSE Call to Action on Illegal File Sharing Provision

EDUCAUSE has issued an urgent call to action regarding an illegal file sharing provision in the College Opportunity and Affordability Act of 2007.

Here's the text of the provision:

Section 494: Campus Based Digital Theft Prevention

(a) IN GENERAL—Each eligible institution participating in any program under this title shall to the extent practicable—

(2) develop a plan for offering alternatives to illegal downloading or peer-to-peer distribution of intellectual property as well as a plan to explore technology-based deterrents to prevent such illegal activity

For further information, see EDUCAUSE's P2P or File Sharing page, especially the talking points and the suggested templates for calls and letters. You can use Congress Merge to find contact information for your Congressional representatives.

Coverage of the Intellectual Property Enforcement Act of 2007

Yesterday, DigitalKoans reported that Senators Patrick Leahy and John Cornyn introduced the Intellectual Property Enforcement Act of 2007, which is sometimes called the "PIRATE Act."

Here are some of the most interesting articles about the bill:

Intellectual Property Enforcement Act of 2007 Introduced in Senate

Senators Patrick Leahy (D-Vt.) and John Cornyn (R-Texas) have introduced the Intellectual Property Enforcement Act of 2007.

Here's an excerpt from the press release:

The Intellectual Property Enforcement Act introduced Wednesday by Leahy and Cornyn would strengthen law enforcement capabilities and resources in thwarting copyright theft. The bill would give civil copyright enforcement powers to the Attorney General and the Department of Justice, and it would authorize additional funding to investigate and prosecute intellectual property crimes involving computers and the Internet. The bill also requires the Federal Bureau of Investigation to assign a minimum of 10 agents to work on intellectual property crimes, and it classifies both the importation and exportation of pirated works as infringement.

Development Pack about Managing Intellectual Property Rights for Digital Learning Materials in Repositories

The TrustDR (Trust in Digital Repositories) Digital Repository Project's Managing Intellectual Property Rights in Digital Learning Materials: A Development Pack for Institutional Repositories is available. The publication, which was the final output of the JISC-funded project, is under a Creative Commons Attribution License.

Here's an excerpt from the "Executive Introduction and Summary":

What is this pack for?

  • To help clarify and update IPR policy for the management and use of digital learning materials created within institutions and develop a sustainable infrastructure (human, technical, educational and organisational) for the effective use of e-learning particularly in support of delivering a more flexible curriculum.

Who is this pack aimed at?

  • Senior management with responsibilities in this area and those supporting them, individuals and teams tasked with overhauling institutional IPR policy, managers and consultants etc who are interested in developing viable e-learning infrastructures, managers of e-learning projects and those involved in planning for projects, partnerships and collaborations, people with a general interest in this increasingly important aspect of e-learning.

DigitalPreservationEurope Publishes Report on Copyright and Privacy Issues for Cooperating Repositories

DigitalPreservationEurope has published PO3.4: Report on the Legal Framework on Repository Infrastructure Impacting on Cooperation Across Member States.

Here's excerpt from the "Introduction."

The focus of this paper is the legal framework for the management of content of cooperating repositories. The focus will be on the regulation of copyright and protection of personal data. That copyright is important when managing data repositories is common knowledge. However, there is an increasing tendency among authors not only to deposit their published scientific work, scientific articles, dissertations or books, but also the underlying data. In addition to this ordinary publicly available sources like internet web pages contain personal data, often of a sensitive nature. Due to this emergent trend repositories will have to comply with the rules governing the use and protection of personal data, especially in the medical and social sciences.

The scenario is the following:

  • National repositories acquire material from different sources and in different formats.
  • The repositories cooperate with repositories in other countries in the preservation of data.
  • There is some degree of specialisation, some repositories specialise on preserving certain formats and other repositories on the preservation of other formats.

This paper describes the legal framework regulating the two decisive actions which have to take place if this scenario is to become a reality:

  1. The reproduction of data
  2. The transfer of data to other repositories

Other copyright issues like the rules concerning communication with the public and the protection of databases will also be touched upon.

Update on the British Public Library/Microsoft Digitization Project

Jim Ashling provides an update on the progress that the British Public Library and Microsoft have made in their project to digitize about 100,000 books for access in Live Book Search in his Information Today article "Progress Report: The British Library and Microsoft Digitization Partnership."

Here's an excerpt from the article:

Unlike previous BL digitization projects where material had been selected on an item-by-item basis, the sheer size of this project made such selectivity impossible. Instead, the focus is on English-language material, collected by the BL during the 19th century. . . .

Scanning produces high-resolution images (300 dpi) that are then transferred to a suite of 12 computers for OCR (optical character recognition) conversion. The scanners, which run 24/7, are specially tuned to deal with the spelling variations and old-fashioned typefaces used in the 1800s. The process creates multiple versions including PDFs and OCR text for display in the online services, as well as an open XML file for long-term storage and potential conversion to any new formats that may become future standards. In all, the data will amount to 30 to 40 terabytes. . . .

Obviously, then, an issue exists here for a collection of 19th-century literature when some authors may have lived beyond the late 1930s [British/EU law gives authors a copyright term of life plus 70 years]. An estimated 40 percent of the titles are also orphan works. Those two issues mean that item-by-item copyright checking would be an unmanageable task. Estimates for the total time required to check on the copyright issues involved vary from a couple of decades to a couple of hundred years. The BL’s approach is to use two databases of authors to identify those who were still living in 1936 and to remove their work from the collection before scanning. That, coupled with a wide publicity to encourage any rights holders to step forward, may solve the problem.

Jefferson Airplane Member, RIAA Director of Communications, and Others Discuss P2P File Sharing at Ohio University Forum

Ohio University has released a digital video of its October 30, 2007 P2P File Sharing: A 360° Perspective forum. Among others, the speakers included Jorma Kaukonen, member of the Jefferson Airplane and Hot Tuna, Jonathan Lamy, Director of Communications of the RIAA, and Vijay Raghavan, Director of Digital Freedom University and the Digital Freedom Campaign.

EFF and Public-Interest-Group Coalition Issue Fair Use Principles for User-Generated Video Content

The Electronic Frontier Foundation and a coalition of public-interest groups (the Center for Social Media, School of Communications, American University; Program on Information Justice and Intellectual Property, Washington College of Law, American University; Public Knowledge; Berkman Center for Internet and Society at Harvard Law School; and the American Civil Liberties Union of Northern California) have issued "Fair Use Principles for User-Generated Video Content."

Here's an excerpt from the press release:

Fair uses have been mistakenly caught up in copyright enforcement dragnets in the past. For example, earlier this year blogger Michelle Malkin's video about rapper Akon was erroneously taken down from YouTube after Universal Music Group (UMG) claimed copyright infringement. In that case, two excerpts from Akon music videos were embedded in a longer commentary about the rap star. Although UMG ultimately admitted its mistake, automated content filtering raises the possibility that commentaries like this might be blocked preemptively in the future.

With cases like this one in mind, "Fair Use Principles for User-Generated Content" describes six steps that service providers and copyright owners should take to minimize damage to fair use during copyright enforcement efforts. One key principle is "three strikes before blocking" — verifying that the video matches the video of a copyrighted work, that the audio matches the audio of the same work, and that nearly all of the clip is comprised of that single work. In addition, if a video is blocked by a content filter, the creator should be given an opportunity to dispute the filter's determination.

Creative Commons Seeks Feedback from Librarians about LiveDVD

Timothy Vollmer has announced on Lita-L (10/28/07 message) that the Creative Commons is looking for feedback about its LiveDVD for libraries, which is part of its LiveContent project.

Here's an excerpt from the message:

Creative Commons is working with Fedora on creating a LiveDVD for libraries that contains free, open source software (like OpenOffice, The Gimp, Inkscape, Firefox) and open content, including CC-licensed media such as audio, video, photographs, text and open educational resources. . . .

The next iteration we're working on is a LiveDVD for libraries, providing an informational resource and creative tool that would allow library patrons to test open source software, view (and rip, remix, reuse) open content, and even create new content with the software contained on the disc. . . .

We want to get some more feedback/comments/suggestions on the project and are also looking to identify librarians and interested groups to test out the LiveDVD!

Canadian Public Domain Music Score Site Forced to Remove All Scores

The International Music Score Library Project, which offered music scores that were in the public domain in Canada, has been forced to remove all scores because it can not afford to comply with the terms of a second cease and desist letter from Universal Edition. The publisher's letter indicated that some scores were still under copyright in Europe, where the term of protection is 20 years longer than in Canada, and that some unidentified works were still under Canadian copyright.

The IMSLP Website remains, but it now consists only of a lengthy open letter and discussion forums.

Michael Geist, Canada Research Chair of Internet and E-commerce Law at the University of Ottawa, commented in a posting on the case:

In this particular case, UE demanded that the site use IP addresses to filter out non-Canadian users, arguing that failing to do so infringes both European and Canadian copyright law. It is hard to see how this is true given that the Supreme Court of Canada has ruled that sites such as IMSLP are entitled to presume that they are being used in a lawful manner and therefore would not rise to the level of authorizing infringement. The site was operating lawfully in Canada and there is no positive obligation in the law to block out non-Canadians.

As for a European infringement, if UE is correct, then the public domain becomes an offline concept, since posting works online would immediately result in the longest single copyright term applying on a global basis. That can't possibly be right. Canada has chosen a copyright term that complies with its international obligations and attempts to import longer terms – as is the case here – should not only be rejected but treated as copyright misuse.

Read more about it in "European Copyright Law Used to Threaten Canadian Public Domain Site" and "Music Score Library Goes Off-Line after Cease and Desist Warning."

Major Internet and Media Companies Sign Off on Agreement about Third-Party Copyrighted Materials in User-Generated Content

Major Internet and media companies, including CBS, Dailymotion, Fox, Microsoft, NBC Universal, Viacom, and Walt Disney, have agreed to abide by a new set of principles (User Generated Content Principles) for detecting and regulating the use of third-party copyrighted materials in user-generated content.

Here's an excerpt from the press release:

The principles, which are attached and available in full at www.ugcprinciples.com, call for a broad range of constructive and cooperative efforts by copyright owners and UGC services. They include:

  • Implementation of state of the art filtering technology with the goal to eliminate infringing content on UGC services, including blocking infringing uploads before they are made available to the public;
  • Upgrading technology when commercially reasonable;
  • Cooperating to ensure that the technology is implemented in a manner that effectively balances legitimate interests, including fair use;
  • Cooperation in developing procedures for promptly addressing claims that content was blocked in error;
  • Regularly using the technology to remove infringing content that was uploaded before the technology could block it;
  • Identification and removal of links to sites that are clearly dedicated to, and predominantly used for, the dissemination of infringing content; and,
  • Promotion of content-rich, infringement-free services by continuing to cooperatively test new technologies and by collaboratively updating these principles as appropriate to keep current with evolving developments.

You can read more about this at "Consortium's User-generated Content Principles Extend Far beyond Fair Use" and "Studios Unveil Their Copyright Protection Guidelines," and "Unprincipled 'Principles' for User Generated Content."

Public Domain Works Partners with the Open Library

Public Domain Works has announced that it will partner with the Open Library, sharing its data about works that are in public domain. Public Domain Works supports the Public Domain Works DB, which is now in beta form.

Here's an excerpt from the announcement:

The plan looks to be to upload the Public Domain Works data to the Open Library, and to use read/write APIs to continue to develop different front-ends for different jurisdictions—each with its own algorithms to determine which works are in the public domain.

The RIAA Sues Usenet.Com

The RIAA has sued Usenet.Com, a Usenet service provider. Usenet.Com offers SSH access with its Secure-Tunnel option from SecureTunnel.com, and indicates that it does not log user activity.

There are a wide variety of Usenet service providers, including universities and colleges.

Here's an excerpt from Usenet.Com's Mp3 Newsgroups Page:

Today’s hottest way of sharing MP3 files over the Internet is Usenet; forget about all the peer-to-peer software applications, which quickly become outdated. . . . MP3 Newsgroups are the ultimate way of sharing as they are well organized and allow the users to find what they are looking for quickly and effortlessly.

Read more about the suit at "RIAA Sues Usenet, Decries It as Napster, Kazaa" and "RIAA Tries to Pull Plug on Usenet. Seriously."

The Jammie Thomas Appeal and More Follow-up

Jammie Thomas has filed a notice of appeal to the Capitol Records v. Jammie Thomas verdict based on the premise that the statutory damages awarded were excessively large and constitute punitive damages. Thomas would like to have a new trial or to have the damages to be adjusted to $151.20 from $222,000.

Here's an excerpt from the motion reported in "Appeal in RIAA Case to Focus on 'Unconstitutionally Excessive' Punishment":

"In the instant matter, defendant Thomas urges the Court to consider the statutory damages to be tantamount to an award of punitive damages, since it is based not upon plaintiffs' losses, but rather defendant's conduct," concludes the motion. "Whether the Court recognizes actual damages of zero dollars, $20 or whatever figure plaintiffs suggest is a fair measure of their actual damages for the 24 subject recordings, the ratio of actual damages to the award is not only astronomical, it is offensive to our Constitution and offensive generally."

Further coverage of the motion is available in "RIAA Says Thomas Shirking $222,000 Payoff" and "RIAA's $222,000 Defendant Asks for a New Trial."

Here's further commentary on the verdict: