http://video.lisarein.com/sfsu/..I wanted to get this up quick so it would be easy to tell people at the ACM conference.

Looks like I never told you that I HTML'd my Copyright/Creative Commons Paper and Guide.

It's all indexed and such so it should be easier to get around in.

Don't forget the handy pro/con table for Creative Commons Licenses

thanks!

lisa

Well I guess I was squirming in my seat a little too much. Jay Dedman finally had me come up on stage as part of the panel. Thanks Jay :-)

If I find any pictures or footage from it, I'll let you know.

Update: wow that took like five minutes! Here are some pictures (thanks to Steve Rhodes):

I've created a student licensing guide for using content in mixed media production and licensing your own production when you're done.

The final guide is available
Here. (.doc) file

Text version.

A longer winded version of the same information contained in the Guide (with historical references)
is available here:
Word File
Text version.

My pros and cons table comparing Creative Commons 6 main licenses (and the Public Domain) is here:
Pros and Cons of Creative Commons Licenses
(As an idealist and a skeptic.)

Here is the full text of the long winded report:

A Review of the Current State of Copyright Law
By Lisa Rein, lisa@lisrein.com
April 12, 2006

Traditional Copyright
To understand the current state of Copyright Law, it is helpful to first understand the Founding Fathers original intentions and the guidelines that were originally set forth in the Constitution. Article 1, Section 8 states that Congress has 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." (U.S. Constitution 1788) The Copyright Act of 1790 specifies the Copyright term at 14 years, with the option to renew once for another 14 years, for a total of 28 years of protection. (Copyright 1790) After that, the work goes into the public domain, so others can use it and benefit from it. (After a work goes into the public domain, publishers are free to print it up and sell it without compensating the original creator.)
The Constitution is quite clear about who Copyright was ultimately supposed to benefit: the public. The very first Copyright act, the Copyright Act of 1790, described itself in its very first sentence as "An act for the encouragement of learning..." The government recognized that creators needed compensation in order to create, however the ultimate goal of creating new, better works was to benefit the public, not only provide private gain. The whole purpose of Copyright was for creators to have the exclusive right to make certain uses of their work for a limited time however, after that limited time, all uses could be enjoyed and reused freely by any member of the public. Traditional Copyright intended that neither the creator nor the public should be able to appropriate all of the benefits of a work. Creators need to gain some benefit or they wouldn’t create. The Public needs creations to build upon and enjoy. The promotion of learning and the arts is another key consideration that the Founding Fathers had in mind when they devised this system.
The economic perspective behind Copyright is something called "The Copyright Bargain. (Litman 2001) This "bargain" is the deal entered into between Copyright holders and the general public. The Copyright system is designed to give some market-based financial compensation to the people who created works and the people who distributed them (publishers). However, the other side of this “bargain” is that the long-term rights for the use and reuse of those works be reserved for the public and other authors of the future. (Rein 2003)
The Copyright Term
One of the most controversial Copyright issues today has been determining the length of this Copyright Term. The Constitution specifies that Congress is "securing for limited times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." (U.S. Constitution 1788) For years, corporate Copyright owners, such as the Disney Corporation, have been successfully lobbying Congress to continuously extend the term on the basis that Congress has the power to determine what "limited" is. As a result, the Copyright term has been extended 11 times in the last 40 years. The current term is 70 years after the death of the creator, and 95 years after first public distribution of "works for hire," or 120 years after the creation date, whichever comes first. (Copyright 2003) A "work for hire" refers to a work where the creator signs off on their rights as part of the deal. Theoretically, the artist does this in exchange for a greater sum of money, since he won't see any further financial benefits from the work after the initial payment. From a company's stand point, “works for hire” are easier to deal with because the corporation would otherwise have to clear usage with the artist every time it wanted to reuse the media in some way. Whether this is good or bad depends on which side of the deal you're on. If you are an artist, you always want to retain or share the Copyright, so you can stay in the licensing (and compensation) loop if the work is reused later. If you are a producer or part of a production company, however, you won't want to worry about having to find the artist later to get their permission for every little reuse. So a producer wants the artist to agree to create work as a “work for hire” whenever possible. These latest extensions only apply to works created after they take effect. This means that the term varies, depending on when a work was created. This adds another layer of complexity to the already confusing prospect of correctly determining whether a historical work has fallen into the Public Domain.
The Copyright Term has now been extended to be longer than most humans' life span, so creators rarely live long enough to see their works go into the public domain. Copyright holders are able to profit from their works throughout their lifetime and often their offspring or whomever inherited their estate after their death also profits.

Too Complicated for the Public To Understand
What started out as a simple document that fit on half a newspaper page has bloated into a document of over 290 pages. As a result, students and teachers aren't really sure what the law is, and often err on the side of conservatism. This has led to what is called a "chilling effect," where art, education and research are not allowed to blossom to their full potential for fear of legal repercussions. With artists and creators unsure of their legal standing, many choose to create other works that might be "safer" considering the unknowns surrounding the use of Copyrighted works. The scientific community has also felt the repercussions of this chilling effect, because they are afraid to borrow from the research of others to advance new scientific solutions.

Copyright Infringement and the DMCA
"Infringement" is violating a Copyright-owner's exclusive rights. The law does not require that the infringer be aware they are doing so. Harm does not need to be proven. (Litman 2001) As an artist deciding whether or not to include pieces from the works of others, you want to make sure you're not infringing on any one else's rights, so you don't get sued.
What happens when you put something up on the Internet without permission and the Copyright holder finds out? The Copyright holder can accuse you of violating something called the Digital Millennium Copyright Act and send your Internet Service Provider (where your files are hosted) a "takedown notice." (DMCA 1998) By law, according to the DMCA, your ISP has seven days to respond. Theoretically, a week is plenty of time to contact you, find out what's going on and, if you are infringing, ask you to take it down. In reality however, a week is not very much time. What if the “takedown” letter is sent on a Friday and not read until Monday? Whether that's one day or three days is unclear. The Copyright holder can demand that it be taken down pending investigation and, often, this is done before you have an opportunity to defend yourself. According to the DMCA, a Copyright holder need only have a "good faith belief" that his rights are being infringed to issue and "cease and desist" letter (a "c and d" or "takedown notice").
The reality is that ISPs rarely take the time to investigate or send a letter back saying that they have checked with the violator in question, who claims they own the material and is disputing their claim. The larger ISPs have lawyers and know their rights, but the smaller ISPs don't always know their options and don't want to pay a lawyer to find out what they are. So the easiest thing for them to do, often, is take the site down pending further investigation. The Digital Millennium Copyright Act is not very straightforward and is difficult to understand. Its provisions are still being debated, but it's the current law in effect. Even after you take the material down, you can still be charged anywhere from $5000 to $50,000 per violation. Defending yourself costs money, so having any sort of conflict becomes immediately expensive.

Fair Use
“Fair use” is a defense, used after the acknowledgement of infringement (unauthorized use) has actually taken place. The Copyright Act of 1976 specified in writing a collection of provisions for Fair Uses that, up to that point, had only been understood via "Common Law" precedents set by judges ruling on a case-by-case basis over the years. (Schultz 2006) Section 107, Title 17 of the Copyright Act of 1976 explains "Fair Use" in a fairly straightforward manner defining a number of specific acts that don't count as Copyright infringement. (Copyright 1976) These “acts” include reproducing "part or all of a work for the purposes of: criticism, comment, news reporting, teaching, scholarship or research." (Copyright 1976) Parts of the definition are purposely left up to interpretation. For instance, what exactly constitutes criticism, comments, news reporting, teaching, scholarship or research? This act also sets forth what has come to be known as the Fair Use Four Factors Test, which is used to determine whether a use qualifies as “fair.” In a nutshell, it depends on whether such a use is commercial or non-commercial, the "nature" of the work (whether it is factual or fictional) how much of the work is used and if such use has some effect on the potential market value of that work. Although the text of Section 107, Title 17 of the Copyright Act of 1976 states very clearly that "multiple copies for classroom use" is included as “fair use”, recently adopted policies across academic campuses nationwide have required teachers to cut back on the amount of copied material actually used in class, forcing them to ask themselves if they "really need" excerpts from one book or another to make their point in class. Such is another example of the "chilling effect", this time on the educational process.
Copyright is "Automatic"

The Copyright Act of 1976 also designates that newly created works are Copyrighted "automatically." The Copyright is attributed to the work without having to register it in the Copyright Office, as was previously the case. A work is copyrighted as soon as it is "fixed in a tangible medium." (Copyright 2003) Examples include taking a photograph or writing down a story on paper or recording a song on to a tape. This automatic protection has both benefits to creators and potential pitfalls for creators who may not wish for their works to be "locked up" after their death.

The loss of the Public Domain
Arguably, one of the greatest casualties of a perpetual Copyright Term is the eventual loss of a Public Domain. There are many who would say that the public doesn't lose anything from not having a public domain anymore, and that it's OK for people to pay to use creative works in perpetuity. They might also argue that the Founding Fathers just hadn't thought in terms of our modern concepts of intellectual property when they were first devising the concept of Copyright in the early acts.
Eldred vs. Ashcroft (2003)
The last Copyright extension, the Sonny Bono Copyright term-extension act, added the last 20 years to the term, effectively pushing the pubic domain work's release date so far out that now no creative work is scheduled to go into the public domain for 16 years. Given the current sentiment, Copyright term is probably going to be extended again, and the concept and existence of “public domain” may be lost forever. The "Copyright maxima lists" feel that there's nothing wrong with the loss of a public domain. However, most would agree that this viewpoint ignores the other half of the Copyright Bargain, where the public eventually benefits from the work.
Eric Eldred, a public-domain publisher who had been making HTML'd versions of public domain works available on the Web, cried foul, and launched a case against the government calling the constitutionality of the last 20-year extension into question. At the same time, on a parallel track, Eldred, with the help of many legal academics from universities around the country, set out to attempt to create a voluntary public domain. (Lessig 2002)
It is because of this dwindling Public Domain that Creative Commons was created. Creative Commons is a non-profit entity created to offer alternative licensing to that of traditional Copyright. Creative Commons licenses allow certain uses "up front," without requiring the explicit permission from the Copyright holder, while still preserving all other protections of existing Copyright Law. Creative Commons was started in 2002 in direct response to the Sonny Bono Copyright Term Extension Act of 1998 (Sonny Bono 1998), when this legislation extended the Copyright term to a length that stopped many works from going into Public Domain. This legislation deprived Public Domain publishers from being able to publish these works. (Eldred)
In Eldred vs. Ashcroft, the Supreme Court ruled that these endless Copyright term extensions were constitutional, based on Congress' right to determine what constituted a "limited time." (Eldred vs. Ashcroft 2003)

Creative Commons Licenses
All Creative Commons licenses require attribution. After that, you have two options: allowing/disallowing commercial usage and allowing/disallowing derivative works. Furthermore, if you do allow your work to be remixed to create another "derivative work," you may optionally require that such works are released under the same license as yours. This way, remixes of your work are also available to remix, rather than being "locked up" under another license.
This "share-alike" provision embodies the true spirit of Creative Commons: creating a voluntary Public Domain in response to the ongoing loss of the "real" Public Domain due to the perpetual length of the copyright term. However, many people don't want to place any restrictions on reuse, fearing that such restrictions may serve as a deterrent to usage. (See my attached "Pros and Cons of CC licenses" table.)
Creative Commons’ licenses work backwards from existing copyright to enable you to make exceptions to the normal copyright rule, and allow the uses you want without losing any of the "automatic" protections of "traditional copyright." Every license allows the work to be copied and distributed in any format, displayed or performed publicly, or webcast (a "digital public performance"). Every license applies world-wide and is irrevocable. If that "irrevocable" part sounds scary, fear not. Another feature of Creative Commons’ licenses is that they are non-exclusive. So putting your work out under a CC license can never interfere with anything else you choose to do with that work in the future.
These licenses take on different perspectives depending on whether you are using work licensed by others for your work, or licensing your work for others. When choosing content, a producer needs to first consider whether it is okay to use the source material as he would like in his own production. His second consideration is to confirm that the license for that source material will also allow for whatever license chosen for his own works’ redistribution.
The most restrictive license, and perhaps the "safest" to use until you understand the different options, is the "Attribution, Non-commercial, No-derivs" license. Like all Creative Commons’ licenses, it requires attribution and a link back to your site if the work is made available for download on a website. This license is sometimes called the "free advertising" license because it enables others to do your duplication and re-distribution for you. People can download it and share it, but they are not allowed to modify it in any way. So, for example, you can use songs licensed under this license as a soundtrack in your film, but you are not allowed to run that song through a filter to make it sound different in any way. You are also not allowed to sell the song when you’re done, without contacting that Copyright holder and obtaining their explicit permission. This license allows only for usage in non-commercial environments (schools, non-profits, students, and, potentially, a person's personal website), and requires that the work be included in its entirety. This doesn't mean that you have to use the whole song, but that any part you do use is “verbatim,” and not altered or remixed to create another "derivative" work.

Now, in the "real world," if a commercial filmmaker, found a Creative Commons’ licensed work under one of these licenses, the chances would be pretty good that you could contact the Copyright holder and pay them some money and get their permission for use. As an enticement to the original artist, the license holder might specify the use was for a full length commercial film and likely to get a lot of exposure. Big Hollywood studios have entire departments of people who are set up to handle this kind of negotiation, but the average "independent" filmmaker does not have these resources. He would have to forfeit this option if an opportunity later arose to make money from his creation. For this reason, independent filmmakers are more likely to choose music that gives permission to sell their new creations up front, so as not to create more complications later.

There are two or more sides to almost every aspect of these licenses. Each of the perceived "restrictions" has the potential to be perceived as having positive or negative consequences. For instance, allowing derivative works represents both a loss of control over how your work may be used, but it also puts you on the receiving end of more "free advertising." This is true because when others use your work, they will be promoting your work along with their own derivative creations by providing attribution and a link back to your own website (as required by all licenses that allow derivative works.) Allowing commercial works lets others profit from works containing your work within them, but it also makes using your work an option to a whole different professional class of people. Requiring that others "share alike" ensures that all derivative works will themselves be made available for others to reuse, but it may be a deal breaker for a professional filmmaker whose other contractual obligations do not allow them any flexibility.
In the same vein, there are definitely two sides to the argument for placing one's works directly in to the Public Domain. On the positive side, you can be sure that your work will live on after you do. People will make copies of your work in different formats for you to preserve the work, and you can list your works among numerous historical works in many of the public domain archives available. Your work will most likely have derivative works created from it because artists will often create from existing work simply because they know they can. But really, these days, placing your work in the Public Domain is more of a political statement, should you wish to make that point that the information your work contains is so important that you release all claims in order to just "get it out there." Or, sometimes, this action represents that your work is built upon works already in the Public Domain, and therefore you do not wish to lock up your derivative work based on that Public Domain work under the restrictions of traditional Copyright. (Disney's Snow White is a good example of a derivative work based on a Public Domain work that is now locked up under Disney's traditional Copyright for its film.) One might also place their work under the Public Domain as an act of support and dedication towards rebuilding our Public Domain.
Since Creative Commons licenses are now available, it's less common for one to give their rights away to make their point. A person can make their work available for uses of their choosing, while still retaining complete control over other uses.
The attached table summarizes the pros and cons for each of the six main Creative Commons licenses (and the Public Domain).

References

Copyright Act of 1976 (1976)

Copyright Act of 1976, Section 107, Title 17 (1976)

Copyright Act of 1790 entry, Wikipedia (n.d.). Retrieved
April 6, 2006, from
http://en.wikipedia.org/wiki/Copyright_Act_of_1790

Copyright Law of the United States of America (June 2003), circ 92.

Creative Commons: A Spectrum of Rights (n.d.). Retrieved
April 6, 2006, from
http://www.creativecommons.org/about/licenses/comics2

Creative Commons: Baseline rights and restrictions in all
licenses (n.d.). Retrieved on April 1, 2006 from
http://creativecommons.org/about/licenses/fullrights

Creative Commons: Creative Commons Licenses (n.d.).
Retrieved on April 1, 2006 from
http://creativecommons.org/about/licenses/meet-the-licenses

Creative Commons: Choosing a License (n.d.).
Retrieved on April 1, 2006 from
http://creativecommons.org/about/think

Creative Commons: Public Domain Dedication (n.d.).
Retrieved on April 11, 2006 from
http://creativecommons.org/licenses/publicdomain/

Creative Commons: Things to think about before you apply a
Creative Commons license to your work (n.d.).
Retrieved on April 1, 2006 from
http://creativecommons.org/about/licenses/index_html

The Digital Millennium Copyright Act (DMCA) (1998)

Eldred vs. Ashcroft, 537 U.S. (2003)

Lessig, L. (2002) Speech at the Creative Commons Launch. Retrieved April 1, 2006 from:
http://www.onlisareinsradar.com/archives/000782.php

Litman, J. (2001). Digital Copyright, Prometheus Books.

The Sonny Bono Copyright Term Extension Act (1998)

Rein, L. (2005) Copyright Basics for Web Designers (n.d.).
Retrieved April 1 from:
http://www.lisarein.com/seybold/

Rein, L. (2005) Songs From the Commons #4 (podcast)
Retrieved April 1, 2006:
http://www.mondoglobo.net/thecommons/?p=9

Schultz, J. (2006) Personal e-mail communication with Legal
Expert, April 8, 2006.

U.S. Constitution (year), Article I, Section 8 (1788)

Update April 13, 2006 - The link below goes to the final version. As I mentioned earlier, I hope that this table will continue to be a work in progress. Please let me know about your pros and cons.

Okay -- I've got a draft up of my
Creative Commons Pros and Cons table.
As Both An Idealist and a Skeptic

I'm only covering the main 6 licenses. But I'd like to keep adding to it after this initial publication.

Please email me at lisa@lisarein.com with any comments/suggestions/criticisms.

I leave for school tomorrow to turn things in around 3pm PST, so please, if you can, send me your comments by noon, that would be great.

I very much appreciate whatever time you have to look this over.

Again, non-expert feedback is also very much appreciated! This is supposed to be a guide for students of broadcasting, not law :-) I'd like to think it could be useful for anyone.

thanks!

This show just went up today:
Why Grokster Shouldn't Be Any More Responsible For When It Is Misused Than Smith And Wesson

As always there is a vocal and music only version available...

Update 12/5/05 3:16pm - I had a link to my old show until now. so sorry about that!

Here's the w/vocals version and the music only version.

This show takes a shot at explaining the similarities between the landmark Universal vs. Sony (Betamax) case of 1984 and the current MGM vs. Grokster case that went in front of the Supreme Court last summer.

I only touch upon it briefly in my show. There's a more complete explanation on the website.

Songs From The Commons #6

The point then, and now, is that, historically, in this country, we choose to criminalize the misuse of a technology, rather than criminalizing the technology itself. Guns, for example, are only made for killing. Killing and maybe target practice. It's what they do. Depending on the circumstances surrounding when the killing takes place, such killing is legal or not. But do we hold gun manufacturers responsible for when gun technology is misused? Of course not. The concept is comical. In fact, legislation was recently passed to protect gun manufacturers from such liability. According to White House Press Secretary Scott McClellan, even President Bush "believes that the manufacturer of a legal product should not be held liable for the criminal misuse of that product by others."

Unfortunately, when the Supreme's had a chance to decide MGM vs. Grokster on these grounds, it chose to do something else - to avoid these issues entirely, and create a new kind of indirect infringement: active inducement. Active Inducement takes place if someone intends to make another person infringe and then takes active steps to encourage it.

The court basically said there were two types before (contributory and vicarious) and now there's a new, third kind, called "inducement." That's what the court sent back to the Central District of California Court (9th Circuit) to determine if the defendants were actively inducing infringement.

So there used to be just two kinds of "indirect" infringement, vicarious and contributory.
"Vicarious" is when you're supervising people and making money from it, like at the Flea Market, if the owners of the Flea Market knew that stolen goods were being sold there. (A CA court ruled that Napster did this.)

"Contributory" infringement is where you're supplying the means with knowledge that it will be used illegally. Like if I rented a bunch of CD burners to a bootleger and knew what he was going to do with them. Now, after Grokster, there's a third, where I intend to make you infringe and take active steps to encourage it. That's the test laid out by the decision...

Note: Although there was a development last week in MGM vs. Grokster, where Grokster settled, agreed to shut down, and agreed to pay $59 million in damages, Grokster was not the only named defendant in the case. StreamCast, Sharman Networks (distributor of Kazaa), and the founders of Kazaa are still in litigation.

Here is the full text of the article in case the link goes bad:

http://www.mondoglobo.net/thecommons/?p=11

A Better Introduction to Grokster - A Modern Day Sony Betamax Case

In this week's installation of The Grokster Chronicles, I will explain how the Grokster case is really just a modern day revisiting of the principles of the historical Betamax case. The "Betamax" case refers to Universal vs. Sony, in which the Supreme Court decided that a company was not liable for creating a technology that some customers may use for copyright infringing purposes, so long as the technology is capable of substantial non-infringing uses. Said another way, the court decided that, when a technology has many uses, the public cannot be denied the lawful uses just because some (or many or most) may use the product to infringe copyrights.

{{{MP3}}}

{{{MP3}}}

The court weighed the substantially positive noninfringing fair use right of a family being able to timeshift a program and watch it together later against the potential misuse of a person making 300 copies of the television program and selling them (piracy). Keeping this definition in mind, it becomes easier to understand how such judgements clearly apply to the Grokster case. Within the millions of files traded over a Kazaa-based P2P network, some infringe, while others clearly do not.

The point then, and now, is that, historically, in this country, we choose to criminalize the misuse of a technology, rather than criminalizing the technology itself. Guns, for example, are only made for killing. Killing and maybe target practice. It's what they do. Depending on the circumstances surrounding when the killing takes place, such killing is legal or not. But do we hold gun manufacturers responsible for when gun technology is misused? Of course not. The concept is comical. In fact, legislation was recently passed to protect gun manufacturers from such liability. According to White House Press Secretary Scott McClellan, even President Bush "believes that the manufacturer of a legal product should not be held liable for the criminal misuse of that product by others."

Unfortunately, when the Supreme's had a chance to decide MGM vs. Grokster on these grounds, it chose to do something else - to avoid these issues entirely, and create a new kind of indirect infringement: active inducement. Active Inducement takes place if someone intends to make another person infringe and then takes active steps to encourage it.

The court basically said there were two types before (contributory and vicarious) and now there's a new, third kind, called "inducement." That's what the court sent back to the Central District of California Court (9th Circuit) to determine if the defendants were actively inducing infringement.

So there used to be just two kinds of "indirect" infringement, vicarious and contributory.
"Vicarious" is when you're supervising people and making money from it, like at the Flea Market, if the owners of the Flea Market knew that stolen goods were being sold there. (A CA court ruled that Napster did this.)

"Contributory" infringement is where you're supplying the means with knowledge that it will be used illegally. Like if I rented a bunch of CD burners to a bootleger and knew what he was going to do with them. Now, after Grokster, there's a third, where I intend to make you infringe and take active steps to encourage it. That's the test laid out by the decision.

The trouble with the supremes defining a new type of indirect infringement is that it leaves the questions of "vicarious" and "contributory" infringement wide open, as well as the test of "substantial non-infringing uses" given to us in the Betamax decision. (So no one knows what the rule would have been on those.)

The opinion also contained two "concurrences." What are concurrences? Well, in a formal ruling, there is a majority opinion which lays down the law. It includes what is called a "holding" -- what the court held the law to be. Then there are secondary opinions included in the ruling when judges want to add commentary. They are either "concurrences" (which agree with the holding but perhaps for different or additional reasons) or "dissents" (which disagree with the holding and reasoning of the majority).

Typically, with concurrences, they are sections that the majority didn't support. In Grokster, you had the majority 9-0 but each concurrence only had 3 votes. If either had gotten 5 votes, it would have been part of the majority. Although these two concurrences conflict with each other, the judges writing them agreed generally on the opinion (unanimously in fact).

So, for the two concurrences that received three votes each, one said that the Sony Betamax test of "substantial non-infringing uses" was more than satisfied. The other said that Sony should be revisited and overturned.

So you may say "well, it would certainly be hard to prove that, until you look at the decision a bit closer. In Grokster, the supreme court said that even using the name "-ster" as in Grokster showed intent to induce infringement, because it was similar to Napster.

The tech community knows that "ster" doesn't have this kind of meaning at all. It's more like a name for doing fun things -- Friendster, a social network and Feedster, and RSS syndication feed service, certainly have nothing to do with contributory copyright infringement. Google's Gmail even uses "ster" as their default name suggestion when someone tries to get an email address and their name on its own is taken, rather than applying a number to the end.

This kind of confusion about technology and computer culture means it will be easier to sue companies and imply that they are encouraging people. Then its costly to defend -- because you're going to have to go to trial every time, costing you millions. You may win eventually, but who cares by then, because you're out of business.

And what does this mean to the average consumer? It means that you're not going to get as much new cool technology, and when you do get it, it's going to cost you more because of the added legal risks now associated with software development in general.

Note: Although there was a development last week in MGM vs. Grokster, where Grokster settled, agreed to shut down, and agreed to pay $59 million in damages, Grokster was not the only named defendant in the case. StreamCast, Sharman Networks (distributor of Kazaa), and the founders of Kazaa are still in litigation.

Special Thanks to Jason Schultz at the EFF for double checking the technical accuracy of my legal analysis.

Songs
1.
Slipping Away v. 2.0 Studio
by Lisa Rein.

http://www.lisarein.com/slippingaway2.0.html

Available under an Attribution 1.0:

http://creativecommons.org/licenses/by/1.0/

2.
one moment (cdk play it cool mix)
by cdk
http://ccmixter.org/media/files/cdk/2884

Available under the: Attribution Non-commercial Share Alike v 2.5 license:

http://creativecommons.org/licenses/by-nc-sa/2.5/

uses samples from:
midnight bliss dub samples by cdk
Moment of Green by Antony Raijekov
Blues and misc by Burnshee Thornside

3.
"Wake Up" from The Time is Now
by Inna Crisis
http://www.jamendo.com/album/352/
Attribution Non-commercial Share Alike v. 2.0:

http://creativecommons.org/licenses/by-nc-sa/2.0/

4. Theme Song to this show - “Unison” by dissent - from the upcoming Primal Deconstruction CD/LP. The track and an in has been pre-released by Wide Hive Records under a Creative Commons Attribution-Non-commercial-No Derivs license. http://www.widehive.com/unison.html

5.
Patrick Fitzgerald Announcing the Scooter Libby Indictments
Scoop

http://www.scoop.co.nz/stories/HL0510/S00315.htm

My archive of it lives here:

Resources

1. EFF's page on the Grokster case:
http://www.eff.org/IP/P2P/MGM_v_Grokster/

2. EFF's page on the Betamax case:
http://www.eff.org/legal/cases/betamax/

3.
Shoot someone? Not Smith & Wesson's fault. Copy a movie? Grokster's fault.
by RadicalRuss for the Daily Kos.
http://www.dailykos.com/story/2005/7/26/2160/13925

The Free Expression Policy Project has just published a fully revised and updated edition of "The Progress of Science and Useful Arts" Why Copyright Today Threatens Intellectual Freedom - a summary of the major controversies over file-sharing, fair use, the ever-receding public domain, the "Digital Millennium Copyright Act," and more.

It's available at:

The Progress of Science and Useful Arts
Why Copyright Today Threatens Intellectual Freedom

In all, fourteen amicus briefs on Eldred's side were submitted, with a total of 141 signers. They included groups ranging from the National Writers Union and the College Art Association to the Association of American Physicians & Surgeons and Computer Professionals for Social Responsibility. Their aim was to bring home to the Supreme Court justices the real cultural costs of ever-longer copyright terms, and consequent freezing of the public domain.

The brief from online archiving projects, for example, described how Internet public-domain publishing has revived countless forgotten or hard-to-find works. Archiving projects now "digitize and distribute millions of out-of-copyright books, movies, and music ... materials that commercial publishers, distributors, and rights-holders have effectively abandoned." While media companies that own the copyrights "often let these films decay and books disappear, this material is invaluable to scholars researching our history, artists developing new art forms, and anyone seeking to explore our culture."

To reclaim these works, they must be in the public domain. Finding and paying copyright owners is untenable, given the millions of documents involved. And in any case, the vast majority of works affected by the Sonny Bono law – published more than 70 years ago – "are not available from copyright owners at any price" because the owners cannot be found.

The Copyright Cage
Bars can't have TVs bigger than 55 inches. Teddy bears can't include tape decks. Girl Scouts who sing "Puff, the Magic Dragon" owe royalties. Copyright law needs to change.
By Jonathan Zittrain for Legal Affairs.

Jonathan Zittrain is the Jack N. and Lillian R. Berkman Assistant Professor for Entrepreneurial Legal Studies at Harvard Law School and a director of its Berkman Center for Internet & Society.

YES, I HATE THE EFFECTS OF COPYRIGHT ON A DIGITAL REVOLUTION that heralds so much more than the banal ripping off of CD tracks. I hate that creativity is metered and parceled to its last ounce of profit. I hate that our technology is hobbled beyond its paper and other analog counterparts so that it permits us to view but not print, listen but not share, read once but not lend, consume but not create. But I can hate this situation without believing that the idea of copyright is fundamentally flawed. The framers' vision of intellectual property (then known as "monopolies") called for built-in limits to a creator's exclusive rights. A copyright term, for example, would expire even if a work still held commercial value...

It's time for us to wise up and to redraw copyright's boundaries so that the law and reasonable public expectations fall into better alignment with one another...

Scholars like William Fisher of Harvard Law School have floated ideas as sensible as they are radical-not to mention offensive to almost every interest in the copyright debates, from publisher to middleman to anarchist. He suggests in an upcoming book that ISPs remit to publishers a fee loosely based on the amount of copyrighted digital content that they are roughly calculated to be carrying, at which point people can trade music to their hearts' content.

Overhauling copyright will have costs to some. In the absence of tough copyright controls, investors may decide not to underwrite a $200 million blockbuster film because copying of the final product may unduly reduce their expected profit. But the cost of making no change at all must also be soberly assessed because the Internet offers such a staggering potential for the rapid transformation and evolution of ideas-a veritable Jazz Age of creation enabled by technology.

I pay my taxes. I have no idea how to calculate them, but I do what Turbotax tells me to. I'll pay a copyright tax, too, and willingly support artists whose work I appreciate, because it's the right thing to do and because it guarantees that more work will be made available to me. I'm not alone.

http://www.legalaffairs.org/issues/July-August-2003/feature_zittrain_julaug03.html
Legal Affairs: May | June 2003
The Copyright Cage
Bars can't have TVs bigger than 55 inches. Teddy bears can't include tape decks. Girl Scouts who sing "Puff, the Magic Dragon" owe royalties. Copyright law needs to change.
By Jonathan Zittrain

A COUPLE OF YEARS AGO I WAS TALKING WITH A LAW SCHOOL COLLEAGUE about cyberlaw and the people who study it. "I've always wondered," he said, "why all the cyberprofs hate copyright."

I don't actually hate copyright, and yet I knew just what he meant. Almost all of us who study and write about the law of cyberspace agree that copyright law is a big mess. As far as I can tell, federal courts experts don't reject our system of federal courts, and criminal law experts split every which way on the overall virtue of the criminal justice system. So what's with our uniform discontent about copyright?

I think an answer can be gleaned from tax scholars. Without decrying the concept of taxation, every tax professor I've met regards the U.S. tax code with a kind of benign contempt, explaining it more often as a product of diverse interests shaped from the bottom up than as an elegant set of rules crafted by legal artisans to align with high-level principles.

Copyright is like that, too. While I hate its Platonic form no more than the typical tax maven hates Tax, I find myself struggling to maintain the benign part of my contempt for its ever-expanding 21st-century American incarnation. A gerrymandered tax code primarily costs the public money-measured by overall inefficiency or extra taxes unfairly levied on those without political capital. But copyright's cost is measured by the more important if inchoate currency of thoughts and ideas.

We live today under two copyright regimes: the law on the one hand and reality as experienced by the public on the other. The law-Title 17 of the federal code-proscribes such acts as the public performance of music without payment to the composer or the copying of books without permission of the author (or more likely the company to whom the author long ago assigned rights).

The limits on behavior enumerated in Title 17 have gone far beyond the wholesale copying of books, maps, and charts covered by the first copyright act of 1790. They extend to computer software, dances, boat hulls (delineated in a 1998 amendment as "the frame or body of a vessel including the deck of a vessel, exclusive of masts, sails, yards, and rigging"), and music-Congress covered performances in 1909 and copies of sound recordings in 1971. What the public can and can't do is described at a level of detail worthy of the most byzantine tax code.

For example, bars and restaurants that measure no more than 3,750 square feet (not including the parking lot, as long as the parking lot is used exclusively for parking purposes) can contain no more than four TVs (of no more than 55 inches diagonally) for their patrons to watch, as long as there is only one TV per room. The radio can be played through no more than six loudspeakers, with a limit of four per room, unless the restaurant in question is run by "a governmental body or a nonprofit agricultural or horticultural organization, in the course of an annual agricultural or horticultural fair or exhibition conducted by such body or organization." Then it's OK to use more speakers.

This astonishingly intricate copyright regime isn't created only by statutes, of course. The notion of "contributory" copyright infringement-aiding and abetting copycats-was devised by judges. In conjunction with a statutory limit on creating "derivative" works of a copyrighted original, a theory of contributory infringement led a couple of courts to outlaw the production by third parties of cassette programs designed to be inserted into the belly of Teddy Ruxpin talking stuffed animals. The idea was that by pushing "Play" when a non-Teddy Ruxpin story tape was inside the creature, children would be creating a derivative, contraband "audiovisual work comprising animated plush toy bear with unique voice." Since toddlers are largely unsusceptible to cease-and-desist letters, it fell to the cassette makers to stop abetting the kids' illegal behavior.

Still, Title 17 remains stubbornly vague, recalling Woody Allen's indictment of a bad restaurant: "The food at this place is really terrible . . . and such small portions." Including Allen's quotation here is probably fair use-but I'd have to risk a lawsuit to be sure. (He might have a similar worry, since he didn't come up with the joke in the first place.) No wonder most publishers proceed as if fair use doesn't exist, asking permission to use every quote or, failing that, doing without.

Title 17's copious detail used to trouble only professional (re)publishers and their lawyers. The title's reach has tended, as a practical matter, to leave individuals unaffected. The examples above might make for cocktail party curiosities, but whatever their indirect public effects-a craned neck as a result of trying to watch the sole television in a large barroom, or a child deprived of the full range of Teddy Ruxpin stories-they don't directly constrain individual behavior, which has been de facto governed by the second regime of reasonable practice.

The public has instinctively controlled its potentially copyright-infringing urges not through knowledge of the law but thanks to the combined weight of conscience and convenience. It's a hassle to photocopy a book cover to cover, so most of us don't bother to do it, and those who do are possibly such cheapskates that they wouldn't buy the original to begin with. (Kinko's-which lost hundreds of thousands of dollars in a 1991 lawsuit brought by publishers over a dozen course packs that included copies of book chapters-won't copy a whole book on someone else's behalf.) Still others might actually think it wrong to make wholesale copies. They might choose to copy only a few pages or to buy the complete work.

As Title 17 has expanded, the corporate and individual regimes have diverged further and further, at odds but not in friction. The former is subject to increasing numbers of exceptions, counterexceptions, contractual agreements, and licenses among lawyers. The latter bumps along simplistically, limited by the amount of copying anyone could or would do as a practical matter.

When points of friction have threatened, the publishers have taken quick action, ferociously fighting against any perceived encroachment on copyright's rights and its associated cash flows. Recall the reaction of the Motion Picture Association of America to the prospect of a VCR. "The VCR is to the American film producer . . . as the Boston Strangler was to the woman alone," warned Jack Valenti, the president of the powerful group. In the now-famed Sony case of 1984, the U.S. Supreme Court held in a 5-4 decision that the VCR was not an illegal instrument of contributory copyright infringement. Valenti to this day rues the loss despite the staggering revenues gleaned from video rentals ever since.

When digital audio tape recorders (DATs) threatened to enable individuals to make perfect copies of CDs, and copies of those copies, the music publishers prodded Congress into passing the Audio Home Recording Act of 1992, which required producers of DATs to incorporate the "Serial Copy Management System" in its products. The SCMS is defined nowhere in a statute that goes to the trouble of defining such words as "children" and "parking lots." But it prevents a DAT from making a copy of a copy if the copy is digitally labeled "do not copy me."

Taking a lesson from the loss in the VCR case, MPAA lobbyists won provisions for a tax on the producers of digital recorders and blank digital tapes. The tax revenues do not go to the government; they are remitted to publishers according to a scheme that demonstrates just how many parties wanted a slice of the pie. Title 17 now contains such gems as "2 5/8 percent of the royalty payments allocated to the Sound Recordings Fund shall be placed in an escrow account managed by an independent administrator jointly appointed by the interested copyright parties described in section 1001(7)(A) and the American Federation of Musicians (or any successor entity) to be distributed to nonfeatured musicians (whether or not members of the American Federation of Musicians or any successor entity) who have performed on sound recordings distributed in the United States." As a result of the law, DAT players were stillborn, so there were few spoils to split-no doubt a perfectly acceptable outcome to the publishers.

With the advent of the DVD player, manufacturers and publishers came together to create a nonprofit association that would control a "secret recipe" for decoding DVDs. Anyone who wanted to make a DVD player had to obtain the recipe. It was given only in exchange for a promise that the DVD player would have certain copy protections in place-such as conveying a signal that would jam a VCR trying to record a DVD-and that the player would incorporate "regional coding," which meant that DVDs from one continent wouldn't function in the players from another. This enabled DVDs to be released in different regions at different times and ensured that those licensed to sell DVDs in one region wouldn't have to worry about having their prices undercut by sellers exclusively licensed to sell in other regions.

THEN CAME FILE SWAPPING ON THE NET and the all-purpose computers attached to it. With the right software, individuals could copy digital content perfectly, quickly, and cheaply-and the presence of a © symbol did little to deter them from doing so.

In theory, of course, Title 17 applies to everyone. Even the Sony case of 1984 included a token individual defendant, a VCR owner who was the alleged direct infringer. But no one demanded that he pay damages or change his behavior. More recently the Recording Industry Association of America has sought the identities of individuals who use Internet file-trading services and has brought (and settled) suits against college students alleged to be organizing file-swapping circles within their university intranets.

The recording industry is not going to sue the tens of thousands of Americans who engage in these practices. But it hopes to make an example of a few users to add teeth to the infringement warnings that file-swapping services send to their customers-and to pressure those services to pressure their customers to stop copying files.

The RIAA shut down Napster for providing services to Netizens to facilitate the sharing of copyrighted and public domain files alike without taking steps to filter out the former. (And Universal Music Group and a unit of the EMI group are now suing a venture capital firm for daring to finance Napster, under what seems to be a novel Russian-doll theory of contributory contributory copyright infringement.) The fact is that the Internet was built to copy things. Microsoft Windows's "Network Neighborhood" feature, for example, is simply a way to swap files. Almost every software application that capitalizes on this central functionality is therefore a Kinko's of sorts, and decreeing all search-and-copy software to be illegal is simply too sweeping a move for a court to make.

Publishers have successfully lobbied for widely reviled legislation to respond to this problem. The proposed legislation would require software and hardware makers to incorporate copy controls similar to those demanded of DAT manufacturers into PCs and other digital devices capable of displaying content.

But publishers are also taking the battle to other fronts, to Internet Service Providers, or ISPs. ISPs have little interest in becoming the Net police. They exist to move data around or to host it. A group with a decent amount of political power-whose members include Verizon, Comcast, AOL, MCI, and, of course, Microsoft-ISPs obtained a federal exemption in 1996 from nearly any liability under state common law for hosting defamatory or other harmful content. If someone posts a message on AOL calling another company's CEO a cheat and a fraud, depressing that company's stock price, AOL is under no obligation to take down the posting, even if the company has pointed out its manifest falsity.

ISPs have no such blanket exemption from liability for hosting or carrying unauthorized copyrighted material. No statute clearly sets out what is legally required of ISPs-and courts have interpreted the obligations of ISPs in different and conflicting ways. CEOs or university administrators providing Internet access to their employees or students don't know what their legal responsibilities are. When they receive letters insisting that they stop allegedly illegal activity on their networks, they gravitate towards a statutory "safe harbor" and take down challenged material-or deny network access to anyone accused of bad copyright behavior.

How is it that IT and ISP industries easily 10 times the size of their publishing counterparts are being harnessed to the needs of their little siblings? Because it's the status quo, some people see the current allocation of rights and duties under copyright as fair, and the happenstance of technical innovation that might displace it as unfair. A meatier argument is that copyright provides incentives for innovation, and if copyright is rendered ineffective, the creators create less or cease altogether.

What's obscured in that analysis is due credit for the longstanding status quo of individual practice in spite of (and previously alongside) Title 17. The Net forces us to confront the contradictions between what the law requires and what individuals do. Initial attempts to reconcile the two have been disappointing. Take, for example, the new phenomenon of music "webcasting," a digital transmission of audio that appears to the user like a traditional broadcast-except that it's available over a computer network. Under the 1909 copyright law and its progeny, a song's composers collect royalties for a "public performance" like the radio broadcast of a CD. No money is owed to the record company, since the CD isn't copied. Actually copying the CD is a right typically reserved to the recording artist (which means the producing record company) under the 1971 law and its progeny, and if permission is granted (usually in exchange for money), no money is owed to the composer of the song for the creation of the copy.

So, a question perfect for a copyright exam circa 1997: Who should collect when a song is webcast, since it acts like a broadcast (remember the 1909 law) but, technically speaking, a temporary copy is made of the song in the computer's memory (the 1971 law)? Should it be the composers or the record companies?

In 1998, Congress answered "Yes." A webcaster owes both. How much is owed to the record companies? Whatever they want to charge, if they want to allow the webcast at all. Unless, of course, a webcaster qualifies for a compulsory license by-and this is in the law-transmitting during any given three-hour period no more than any of (1) three different selections of sound recordings from any one CD, if no more than two such selections are transmitted consecutively, and (2) four different selections of sound recordings by the same featured recording artist or from any set or compilation of CDs distributed together, if no more than three such selections are transmitted consecutively. Got that? Oh, and the webcaster must take care not to preannounce what songs are about to be played. Hew to all these rules, and you still pay-it's just that the rate, rather than being set by the record company, is set under the law by a three-judge arbitration panel after taking weeks of testimony, as long as the panel is not overruled (as really happened) by a subsequent act of Congress setting entirely different rates.

The Internet links people together point to point, enabling individuals to broadcast as well as to consume audio streams. But they won't broadcast if they can't figure out how to do so lawfully, or if they can't afford to do so after being charged twice. Cheap software lets individuals prepare new works from the old, mixing and matching in the finest traditions of jazz improvisation. But people won't do it if they receive a notification of termination of their Internet service.

YES, I HATE THE EFFECTS OF COPYRIGHT ON A DIGITAL REVOLUTION that heralds so much more than the banal ripping off of CD tracks. I hate that creativity is metered and parceled to its last ounce of profit. I hate that our technology is hobbled beyond its paper and other analog counterparts so that it permits us to view but not print, listen but not share, read once but not lend, consume but not create. But I can hate this situation without believing that the idea of copyright is fundamentally flawed. The framers' vision of intellectual property (then known as "monopolies") called for built-in limits to a creator's exclusive rights. A copyright term, for example, would expire even if a work still held commercial value.

So why should we care who gets the merchandising deal from a movie or the song tie-in on a variety show? One reason is that the publishers' sights are set on the public. It is, for example, technically against the law for Girl Scouts to sing "This Land Is Your Land" and "Puff, the Magic Dragon" around a campfire without paying royalties. The American Society of Composers, Authors and Publishers tried to collect such royalties. It backed off only after it faced public outrage-which was fanned by restaurateurs wanting to play the radio without having to pay fees. It now charges the Scouts $1 a year, foregoing real profits while making it clear that the girls sing only by ASCAP's belatedly good graces.

Attempts to reconcile the colliding regimes of statute and practicality, law and life, have been hamfisted at best. A formal report by a commission chartered by the British Patent and Trademark Office suggests, without a trace of self-consciousness, that we encourage schoolchildren to include the © symbol on all their homework. The Business Software Alliance, a commercial software industry group, just unveiled playitcybersafe.com, a website for kids to inculcate the values of Title 17 over those of consumer praxis. There a kid can play Piracy Deepfreeze, becoming a crusading . . . ferret. "Stop the pirates from freezing the city! Throw your ball into the pirates and their stolen software before they hit the ground."

It's time for us to wise up and to redraw copyright's boundaries so that the law and reasonable public expectations fall into better alignment with one another. To be sure, this may require more, rather than less, subtlety. We should treat protections for computer software in a different way than music, for example, and lengthy copyright terms should be available only to those who bother to check in with the Copyright Office every few years. But we do ourselves a disservice by fixating on current income structures and not thinking about future possibilities premised on amazing technological advances, especially when the rights at issue concern the flows of ideas, something fundamental to free societies.

Scholars like William Fisher of Harvard Law School have floated ideas as sensible as they are radical-not to mention offensive to almost every interest in the copyright debates, from publisher to middleman to anarchist. He suggests in an upcoming book that ISPs remit to publishers a fee loosely based on the amount of copyrighted digital content that they are roughly calculated to be carrying, at which point people can trade music to their hearts' content.

Overhauling copyright will have costs to some. In the absence of tough copyright controls, investors may decide not to underwrite a $200 million blockbuster film because copying of the final product may unduly reduce their expected profit. But the cost of making no change at all must also be soberly assessed because the Internet offers such a staggering potential for the rapid transformation and evolution of ideas-a veritable Jazz Age of creation enabled by technology.

I pay my taxes. I have no idea how to calculate them, but I do what Turbotax tells me to. I'll pay a copyright tax, too, and willingly support artists whose work I appreciate, because it's the right thing to do and because it guarantees that more work will be made available to me. I'm not alone. So: Let's imagine a world in which Teddy Ruxpin can say whatever he wants, where kids can play with computers that are not digitally locked down, where bars and restaurants can stop measuring their TVs and their parking lots, and where amateur webcasters can create thousands of radio stations featuring songs we like, perhaps ones that sound familiar but that have new elements to them. We'll still buy concert tickets, books, and CDs and their digital descendants. They'll be competing with a lot more, though-created for fun, even if it happens to turn a profit.

Jonathan Zittrain is the Jack N. and Lillian R. Berkman Assistant Professor for Entrepreneurial Legal Studies at Harvard Law School and a director of its Berkman Center for Internet & Society.

This just in from the Copyright Office:

"THE COPYRIGHT OFFICE COMES TO CALIFORNIA" During the first week of March, top officials from the Copyright Office will participate in a program in Los Angeles and San Francisco where they will provide an update on the latest Copyright Office law and policy activities, including rulemakings, legislation, and international activities. The program will also include presentations on fair use in the twenty-first century and copyright registration issues for practitioners and copyright owners. Sponsored by the Intellectual Property Law Section of the State Bar of California and the Los Angeles Copyright Society, the program will take place March 3 in Santa Monica, Calif. and March 5 in San Francisco. Participants may earn MCLE credits. For further information, go to: