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This Week in Law, Copyright School and Commercial Privacy Bill of Rights Act May 14, 2011

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It is always great to talk to Denise Howell and Evan Brown on This Week in Law. I had the pleasure of being a guest on Episodes 107 (April 15, 2011) and 87 (November 19, 2010) on this video podcast, which I consider essential listening for keeping up with technology law trends. Here are the replays:

We talk a lot about changing norms in copyright and Internet use. Here, we had a very spirited discussion of Youtube’s new “Copyright School.” Also, the Internet rights discussion has now entered the lawmaking process with the Kerry-McCain draft Commercial Privacy Bill of Rights Act currently circulating on Capital Hill.

#What the HashTag? Legal TweetChat for Web Journalists March 26, 2010

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Cory Doctorow predicted that printed newspapers will become like opera, the province of “rich weirdos.” Despite this, journalism is alive and well in the new media era, and living in Cyberspace.

To help such online journalists, I participated in a Legal Issues Panel on Episode 7 of WJChat through TweetChat with some of the legal leaders in new media journalism. The panel was assembled by Robert Hernandez (@webjournalist), who teaches a course in Online Journalism at USC’s Annenberg School.

My fellow panelists were Kurt Opsahl of the Electronic Frontier Foundation (@EFF), David Ardia and Kimberly Isbell of Harvard’s Citizen Media Law Project (@CitMediaLaw) at the Berkman Center for Internet & Society, and Jack Lerner (@JackLerner) of USC’s Intellectual Property and Technology Law Clinic.

Here is the transcript of WJChat Episode 7. A more coherent digest of the panel discussion is here.

If the formatting looks wonky, that’s because it is. My Columbia Law Review editors would have had a minor heart attack back in the day where we debated such fine points as whether to end possessive plurals with an ” s’ ” or an ” s’s. ” (For grammar geeks, it was decided that official Columbia Law Review style that year was to use the full ” s’s ” because the then-Editor-in-Chief thought the ” s’s ” conveyed plural better than a “lonely single apostrophe hanging out by itself.”)

As a matter of pure Blue Book style, I agree. But I don’t get a credit for my Note on the Columbia Law Review website, since I signed my copyright away. You can read it if you can afford a Westlaw or Lexis subscription.

Perhaps one day we’ll follow @BlueBook on Twitter. Properly, it would be @AUniformSystemofCitation, but that’s over the character length. In today’s Twitterverse, we wouldn’t use an extra character on subtleties such as an extra “s” or whether two spaces follow a period. Life is short, right? Maybe it’s not pretty, but we’d claim attribution for what we write.

That’s a fair trade-off, I think.

But back to the show.

The panel discussed ethical, legal and practical problems of online news gathering and reporting. We focused on issues unique to web journalism – shield laws, web commenting, quotations, expectations of privacy, Creative Commons licenses, retractions, and DMCA agents. At times, there was a division between normative law and empirical law — that is, the split in what we believe doctrines such as the Fair Use defense in copyright may or should allow, and practical rules of thumb easy enough for your average Joe or Jill citizen journalist to stay out of trouble.

Here are some useful resources for online journalists that came out of the discussion:

EFF’s Legal Guide for Bloggers
The Online Media Legal Network
PACER.gov and RecaptheLaw for federal cases
(To this, I add FindaCase.com.)
flickr.com for Creative Commons-licensed photos
archive.org for web history
http://www.copyright.gov/onlinesp/agent.pdf to register a DMCA agent
EFF’s guide to Section 230 Protection
EFF’s Bloggers as Journalists

My final tip? Be true to yourself, be accurate, and check your sources.

The Hidden Value of Creative Commons April 16, 2009

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Happy 6th Birthday Creative Commons

Happy 6th Birthday Creative Commons

On Avvo.com, I recently answered this question on music sampling:

“What are the laws on sampling music for a beat?”

Here is my answer:

“Sampling” music sound recordings is taking a portion of a sound recording and reusing it as a portion of a distinctly altered musical work. Under the copyright law, this reuse and transformation creates what is called a “derivative” work.

In the absence of any other agreement or license, the creator of the original musical sound recording has a copyright in the musical sound recording when it is released commercially. This is regardless of whether the work is registered with the Copyright Office.

It is actionable copyright infringement to incorporate portions of a musical sound recording that has been commercially released into a new work unless (a) the copyright holder grants a license allowing both copying and the creation of derivative works or (b) the owner of the sound recording has made the music available for public use under a gratis Creative Commons license that permits derivative works.

You can search for musical sound recordings that have been made available to the public for beat sampling under a Creative Commons license at creativecommons.org. You must heed the Creative Commons-published guidelines for any particular work. Only works licensed for “remix,” that is, derivative uses, may be used for beat sampling. Some owners also restrict Creative Commons license to non-commercial uses, and/or a reciprocal “share alike” license. Most Creative Commons licenses require attribution, or credit, in lieu of a license fee. Any use that falls outside the Creative Commons guidelines for a particular work would be actionable copyright infringement.

That is the lawyer’s answer. But there is another side to using Creative Commons work that reveals the flip side of my previous post on why attribution matters in copyright law. Attribution is a way of finding and linking to people that you want to work with and who want to work with you. I discovered this for myself about a year ago by putting the photos in my free Flickr account into Creative Commons under a non-commercial, attribution, no derivatives license.

I had surprising and wonderful results. Every so often, I get a little Google news vanity alert about a photo that’s been credited on the Internet. One of my faves is the remix of Lawrence Lessig at the top of this post. It is actually a collage that was created by Andy on the fly for a G33k dinner. More profoundly, it has brought some wonderful people into my life.

Tag up your photos and try it yourself. If they’re on a free hosting service, what do you have to lose?

“Happy 6th Birthday Creative Commons” collage by netZoo/revolute. Shared under Creative Commons license -obviously – via flickr.

“Hope” for the Best: Manny Garcia, Shepard Fairey and the Associated Press February 5, 2009

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Update 3/12/09: The Associated Press filed their answer and counterclaims against Shepard Fairey.

You can read the answer and counterclaims here.. It’s a great read. The answer and counterclaims include lots of embedded color pictures (something I’ve never seen in a pleading before).

The AP’s answer and counterclaims emphasize the artistic merit in news photography, the AP’s non-profit status, and the importance of having a financially independent press.

Is it persuasive? You be the judge.

Update 2/9/09: Shepard Fairey has sued the Associated Press in New York for a declaratory judgment that his poster is fair use.  No word on whether Manny Garcia will be joined.

Here’s my post on LAist about the Associated Press’s claims that Shepard Fairey infringed its copyright in AP photgrapher Manny Garcia’s 2006 photograph of President Barack Obama.  No lawsuit has been filed, but the controversy illustrates the huge divergence in what people believe to be “fair use” under copyright, and what they think it should be.  It’s a dynamite case on so many levels, given the timing, the economic climate, the copyright reform movement and the promise of accountability in the new administration.

There’s a terrific collection of links, discussion and summary of copyright standards and precedents courtesy of Carolyn E. Wright, aka PhotoAttorney.

So who’s right?  It’s a great case for setting the law straight on the non-economic rights of copyright holders but a lousy case for damages.  Fairey openly admits he copied the Garcia photo but it is also widely reported that Fairey hasn’t directly profited economically from the poster.  The AP hasn’t tried to enjoin the “Hope” image and it also hasn’t revealed whether the compensation it reportedly seeks is monetary or non-monetary.

I wonder if proponents or strong copyright will figure out that they stand to gain tremendously if the AP takes this once-in-a-lifetime opportunity to set precedent for the non-economic value of copyright.  Shepard Fairy admits he copied the image.  When is that ever going to happen again (or with such a high-profile work)?  The AP doesn’t need Shepard Fairey’s money.  They do, however, need to protect their copyrights.  If the AP’s lawyers take the long view, they will restrict their quest for compensation to joint copyright in the image, forcing a ruling on attribution and derivative works only.

At the very least, I “hope” everyone knows who Manny Garcia is by now.  His photo really is terrific.

StrikeTV October 30, 2008

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Here’s my LAist post on StrikeTV, the internet television network conceived a year ago during the writers’ strike and launched during Digital Hollywood this week.

Lawyer2Lawyer September 6, 2008

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Title: Federal Copyright Law & Guns n’ Roses’ Chinese Democracy

Last week, the FBI arrested blogger, Kevin Cogill of Culver City, California, on suspicion of violating a federal copyright law for posting nine tracks from the unreleased and much anticipated Guns n’ Roses album “Chinese Democracy” on his blog.

I was asked by Law.com bloggers and co-hosts, J. Craig Williams and Bob Ambrogi, to discuss this hot legal topic on their radio show, “Lawyer2 Lawyer” on the Legal Talk Network, along with Philip Daniels of Sheppard Mullin Richter & Hampton LLP.

To listen to our law-talking about the legal issues in this case, the new federal copyright law and what the future looks like for Cogill, click on the link below:

IP Protection for Blog Posts August 21, 2008

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Steve Kwok in China recently asked:

What is the most comprehensive law regarding IP protection for blog posts?

The short answer: the blogger retains copyright but the owner of the blog publishing system may reserve the right to sell the content back to the blogger.

Terms of Service increasingly try to carve out property rights for the owners of sites offering free publishing tools on the Internet. Fair enough, given the theory that a Terms of Service agreement is a contract between the user and the hosting site.

To take it a step further, does ownership of copyright in blog posts create property rights vis-a-vis third parties? The plaintiff in Lenz v. Universal Music Publishing Group, the “dancing baby” Youtube case thinks so.

Most of the commentary on the Lenz case focuses on whether posting the video, which embodied portions of the Prince song, “Let’s Go Crazy,” was fair use under the copyright laws. Fair use is always hotly contested, and always will be, due to the number of factors involved.

However, this case also raises the question of whether posting video to Youtube is a privilege or a right. In the first version of the complaint, Lenz claimed it is a right under her contract with Youtube. Presumably the contract arises from a user’s agreement to abide by Terms of Service. Based on that, Lenz sought damages against Universal for interfering with that right.

“Because Universal’s notice was intimidating, Ms. Lenz is now fearful that someone might construe some portion of a new home video to infringe a copyright. As a result, she has not posted a
single video on YouTube since she received the takedown notice.”

It’s a bold claim. How extensive are these rights, and how would they be quantified?

In the Second Amended Complaint, Lenz dropped the tortious interference claim.  However, as user-generated content becomes an increasingly important component of new media business models, it’s worth considering whether others will test similar claims.