RIAA’s pet peeves

RIAA hates little baby ducks,
old pick-up trucks,
a slow moving train, and rain.

RIAA hates little country streams,
sleep without dreams,
Sunday school in May, and hay.

And RIAA hates you too.

(By Tom T. Hall and Clint, through Francis, through BoingBoing.)

Two more for the copyright lawyers

Here are two more copyright law problems that I cannot solve:

1) SNTE is claiming copyright on an illuminated Eiffel tower in Paris, so that photographers are not able to sell pictures of that object without paying a license fee. How can SNTE claim copyright when they “created” their Eiffel tower lighting in 2003, whereas the Paris Hotel in Las Vegas already had the same lighting in 2002? Is this a simple matter of either infringement or licensing, or is some other aspect of the law involved?

2) Microsoft’s license to its proprietary networking protocols are too restrictive according to the European Union.

I have asked this on a dozen forums, but so far no-one has answered me: what “right” does Microsoft have to its protocols that a license is required to use them?

Are protocols copyrightable? (Where’s the expression?) Are they patentable? (How are they non-obvious?) Are they a trade mark? (This is the one that actually seems feasible to me.)

The strange thing is that though nobody can tell me what legal basis exists for Microsoft’s license, nobody is questioning that there is such a legal basis either.

The Microsoft webpage on this issue does absolutely nothing to make things clearer:

The […] License Agreement […] grants to licensees […] a license under Microsoft European intellectual property rights for the purpose of interoperability with Microsoft client and server operating systems. Specifically, licensees will obtain the rights to use the licensed Microsoft technical documentation to develop implementations of the […] protocols for the available server tasks enabled by the WSPP protocols that the licensee selects.

(Emphasis added by me.)

So Microsoft identifies two (types of) rights:

  • the Microsoft European intellectual property rights, and
  • the right to use documentation

Which law or jurisprudence established these rights?

Or, to put it differently, if I were to develop software using Microsoft’s protocols, what argument would the judge use to justify putting me in jail?

(The previous problem was: Why do works that are first published after the author’s death, still generate a copyright?. The answer to that was that authors can sell a work to a publisher under the condition that it won’t be made public until after the author’s death.)

Competition and copyright

I am trying to remember what I heard or read a Dutch copyright lawyer say about using the Dutch Agency for Competition to take the edge off of some of copyright’s more heinous effects. There is an agency called NMA that must make sure monopolies are not abused.

Googling for the Dutch words for competition (“mededinging”) and copyright (“auteursrecht”), I stumble upon only three (types of) cases in which copyright and the right to free competition clash.

One is where publishers have a lock on the market and use it to force authors to transfer their copyrights to them. Composer Tony Eyk complains to parliament about how all broadcasting corporations engage in this practice, so that a composer who wants to write for Dutch national television has no way to do so competitively.

Two is where representatives of copyright holders enforce copyright even against the wishes of those copyright holders. This is an old complaint that is often aimed at BUMA/STEMRA, the collection agency for composers and performing artists. BUMA/STEMRA claims (IIRC) that it cannot do its work if it has to start taking the wishes of individual authors into account.

The most recent case that I know of is where my ISP, XS4All, gave a birthday party which included a symposium on copyright. It had agreements with all performing artists that their performances could be downloaded for free, but BUMA/STEMRA disagreed. XS4All filed a complaint with the NMA.

Three is the situation where copyright is claimed to maintain a monopoly. A case that has been dragging on for years and that again involves the broadcasting corporations is that of the TV program listings. Broadcasting corporations claim they own the program listings. This is important to them, because they tend to get a lot of income from publishing TV guides. However, so far courts have concluded these listings lack the amount of originality needed to create a copyright.

None of these three cases seem to show up the heinous effects of copyright as a monopoly though. #1 seems to indicate that copyright is sometimes not a large enough club, #3 seems to suggest that copyright sometimes is so large a club, that organizations will wish to employ it before exploring other options, and #2 seems to be orthogonal to the whole question: AFAIK (but IANAL), the law explicitely grants authors (and performers?) the right to negotiate outside the collection agencies, so I don’t really see a problem there. Lawsuit, let BUMA/STEMRA pay, and hope that they learn from it and try to get procedures in place that will allow the authors more freedom to negotiate.

DRM threatens fringe copyright consumers

The evils of DRM have been documented elsewhere, but so far I have disagreed: the market will decide whether DRM is valuable or not.

Politicians routinely overestimate the power the consumer has when negotiating with Big Copyright, and the laws that are meant to make cracking DRM illegal are far over-reaching; but these are not problems inherent to DRM itself, and must be attacked on their own.

There may however be a far more severe problem with DRM that does require direct intervention: readers with unorthodox usage patterns and readers with unorthodox tastes are left in the cold. Of course, this also happens outside of DRM: publishers are not obliged to carry works that don’t sell, nor are they obliged to publish works in unusual formats. However, DRM exacerbates this problem.

Teleread points out that libraries suffer DRM too. I can imagine that for libraries things are worse: they have usage patterns that may not stroke with what the DRM allows. A book being read by more than four persons? A book being read more than twice a year? Surely, the lock would conclude, this must by piracy?

Lawrence Lessig points to another part of the problem (and perhaps a more complex one): the way we choose to “protect” works, helps determine the sort of works we choose to create. I say “more complex”, because this could work both ways. On the one hand, getting a good contract might require locking up your work in DRM. This means less opportunity for your work to get remixed and integrated in all of culture, and readers may even vote with their wallets and not buy your work. Depending on the contract this may be good or bad for the author: however, it is always bad for the work.

And on the other hand, authors may choose not to write the sort of works that publishers won’t buy because they are hard to “protect”.

I won’t spill tears over types of work getting extinct. If copyright were abolished today (and I am not sure that would be a bad idea), some works–Hollywood blockbusters are often named as an example–will certainly vanish. But other works will flourish in their place. Makers of collage art would no longer have to contemplate a carreer change.

The thing is, if we make a choice to eradicate certain types of art, it should be a conscious choice. I doubt though that the law-makers who have “protected” DRM so far have given this much thought.

(I use quote marks for “protect”, because I believe that copyright and digital locks do the opposite for works; once locked up in a technological or legal device, the chance of copying is limited, and therefore the chances of dissemination and ultimately survival of a work are limited.)

Cents and Sensibility

Why does Penguin splash out half a million on the promotion of Sense and Sensibility and hundreds of other Moldy Oldies? Because these classics, which many of us hated to read in highschool (come on! fess up!), easily outsell any of today’s hits, according to a two year old article in Slate.

(I had looked for this link before, but could not find the article. When David Rothman asked me to try again, I finally stumbled upon the lucky search words.)

One such Dutch classic that was recently posted to Project Gutenberg is Spinoza’s Ethica. Not quite unputdownable if you ask me, but there is no accounting for taste. Funnily enough, a completely separate group of volunteers has been working on scanning and proofing a second translation of the Ethica. (Translation, because the Spinoza did not publish his pivotal work in Dutch.)

Sweat of the brow

I have always understood that in the US, mere sweat of the brow does not attach copyrights to a creation. In order to be copyrighted, a work needs to be original. This is important for reproductions of public domain works, for instance photos of public domain paintings. I also understood that this is specific to the US, and that in Europe different, less enlightened rules apply.

My first understanding stems from a ruling in the US, Bridgeman vs. Corel, in which the judge finds that a work needs to be original to generate a copyright.

I was pleasantly surprised when I found out that a similar condition applies in Belgium and France. Any other European countries that are more enlightened than I originally thought?

BREIN starts sending demands to filesharers

According to the Bits of Freedom newsletter, the BREIN foundation–the Dutch representative of the MPAA, has started sending out cease and desist letters to Dutch filesharers.

Bits of Freedom has posted an (anonymized) copy of such a letter (PDF) on its website.

The letters have been sent to the providers, because BREIN only possesses the filesharers’ IP numbers. All but XS4All have duly forwarded the letters to whoever seem to be attached to these IP numbers. Opinions differ on which cause of action is wisest.

I am afraid I do not have the time to translate the entire letter, but in short, this is what BREIN wants:

  • That the filesharers declare to cease sharing “unauthorised” files
  • That the filesharers pay damages

(Unfortunately, Bits of Freedom erased the amount of damages that BREIN claimed and thereby robbed us of a good laugh.)

Bits of Freedom then produces a mock FAQ of what filesharers should do now. Basically, what they say is that filesharers should under no circumstance cooperate.

Although IANAL, this seems wise advice to me. Unlike court costs in the US, court costs in the Netherlands are not prohibitively high, and we do not have a concept of statutory damages (AFAIK: again, IANAL). A judge might well find that damages of kids sharing mp3s with kids are close to nil.

This might tempt a filesharer to fight BREIN in a court of law. Christiaan Alberdingk Thijm, he of Kazaa fame, has said in the past that he will gladly beat whatever’s left of BREIN’s puny brains out again. With any luck, a judge will even come to the Canadian conclusion and say that filesharing is no different than making private copies for a friend. Of course, BREIN has picked its battles more and more carefully in the recent past, and are likely to go after uploaders of the sort of works for which the home copy is restricted (software for instance).

“Oh my, downloading is illegal!”

The tone and subject of lunch conversations often depend on the sort of firm you work for. When I had a temporary job at a garage, the talk was about cars, hoes and dem forinners. At a geek-dominated customer, the talk is about technology. At my part-time job at an ad agency, the talk is about sex.

At the ad agency, the talk was about something else the other day. One of my colleagues was waiting for her iPod to arrive, and she was discussing the music to put on it. “Oh, but I cannot download music any longer. Didn’t you hear? They are cracking down on downloaders.” Of course, I dutifully explained that this is not true, that downloading music and films and books is perfectly legal (Dutch, Iusmentis), but I am not sure she believed me.

The Brein foundation, our modern day Dutch brown shirts, have threatened once again that now they will start demanding payment of damages for real (Dutch, Webwereld).

Unpublished works

Copyright gives an author several instruments to make money off his works. It is up to the author to actually exploit those instruments, but at least he has them.

Some people question the validity of those instruments; for instance, why do works continue to be burdened by copyright even after the author has died? And why do these terms get longer and longer? Well, the argument goes, the author can use the extended time as leverage during negotations with the publisher. The longer the publisher is allowed to make the book, the more money the author can ask upfront for himself, or during the copyright term for him and his heirs.

Although in theory that would be a valid argument, in practice such extensions get written into the law by publishers, so it is doubtful that the argument holds. But lets not talk about that.

What’s really baffling to me is that in some jurisdictions, unpublished works that are discovered after an author’s death, still get a copyright attached to them. Why on earth is that?

There are several reasons why copyrights exist in the first place. Because we want to stimulate the production of works. Because we feel it is fair somebody gets rewarded for the work they do. Other reasons perhaps. None of those explain copyright on unpublished works.

Basically, the copyright on an unpublished work is like a gold ore. Those who find it first, get to stake a claim. It’s finders keepers. There’s something wrong with that. Copyright was not meant to be a lottery. Copyright was meant to provide society with very real benefits.

Any copyright lawyers in the room who can explain it to me?

What do authors want?

Although I don’t think that authors should have the definitive say on what should happen to the works they publish, I do feel that when copyright law is being rewritten, their voice should have a lot more weight than that of publishers. Most importance should be given to the opinion of the readers.

(For those who do not know: copyright law, intended to limit the immoral dealings of some publishers, has been written almost exclusively by publishers. It is as if the Maffia is being asked time and again to write anti-racketeering laws.)

Unfortunately, there seems to be little known about what authors want specifically. Luckily, The Internet Archive does not just publish a lot of sound, it also publishes the release statements that went with all these bootlegs. Interesting stuff for a copyright archeologist, it would seem to me. Just click on a artist/band name, then click on “This band: Band policy/notes”.