Pixelization

Respect Copyright Law: Don't Print Your Own Canadian Money

Of all the reasons not to churn out banknotes in your own cellar, worries about liability for copyright infringement never occurred to me. 

Until my wife and I took our two boys up to Winnipeg for the weekend.

Although we could probably have made it through the weekend on credit cards, I was super psyched about getting a wad of Canadian currency out of an ATM machine. 

To experience the full excitement of traveling abroad, you've got to have a pocket full of unfamiliar money. Nevermind that their pennies, dimes, nickels, and quarters look almost identical to U.S. coins. And put aside the fact that the exchange rate right now between the U.S. and Canada is almost exactly one-to-one. I was still excited to use different cash.

Inspecting the colorful bills, I got a delightful surprise: a copyright notice!

Aspiring counterfeiters be warned – the bills are copyrighted by the Bank of Canada! That will make you think twice before xeroxing off a sheaf of north-of-the-border moola. 

In the United States, we discourage that sort of thing with specially crafted counterfeiting laws. Under these laws, you can be arrested by Secret Service agents who, in proving their mettle to make the presidential security detail, will take you down in broad daylight in a swarm of dark suits and sunglasses while never ceasing to speak covertly into their earpieces. 

The Secret Service is all business. To my knowledge, they've never waterboarded anyone, but if they did, you can be sure they would do it without taking off their ties or unbuttoning their collars. 

If you counterfeit money in Canada, you could, apparently, get sued for copyright infringement. Don't think just because Canadians say "sorry" a lot that they will go easy on you. They will be all over you like the RIAA on a mother of two who downloaded a couple dozen songs from the internet.

But honestly speaking, of all the absurd and hyperactive claims of copyright, I think this has got to take the cake. Now, I have no doubt about the law. I am not a student of Canadian copyright law, but I am quite sure the Bank of Canada is entitled to the copyright in their currency designs. But under the Berne Convention, Canada does not need to use a copyright notice to have copyright protection. And to the extent the copyright notice is designed to have evidentiary value in a lawsuit, it's just funny.

And more to the point, why would Canada care to assert a copyright claim over their bills anyway? What possible copying of Canadian banknotes could there be that does not constitute protected fair use or criminally prosecutable counterfeiting? 

The only thing I can think of that might fall between the cracks would be if some lazy foreign government decided to rip off Canadian currency designs to avoid the the annoyance of having to come up with their own. But there are two glaring problems with this argument. 

Princess Joan, one-third the population of Sealand, on her principality's coinage.

First, the smaller a country is, the more fired-up it gets about designing its own money. 

For instance, the dubiously sovereign Principality of Sealand – perched on an abandoned gun platform in the English channel, population three – has far more coin denominations and stamp issues than people. 

Second, to be blunt, no third-world nation out there wants to put an engraving of pond hockey on their banknotes. 

(Sorry.)

Unsettling Settlement Unsettled

In May I wrote about some of my qualms with the proposed Google Book Search settlement. I am happy to hear through the law-professor grapevine that the parties have asked the court to delay the settlement hearing, which was to take place on October 7, 2009, so that they can revise their proposal.

The last straw was apparently the DOJ's objections, which are, in my mind right on. Especially this:

Google’s competitors are unlikely to be able to obtain comparable rights independently. They would face the same problems – identifying and negotiating with millions of unknown individual rightsholders – that Google is seeking to surmount through the Settlement Proposal. Nor is it reasonable to think that a competitor could enter the market by copying books en masse without permission in the hope of prompting a class action suit that could then be settled on terms comparable to the Proposed Settlement. Even if there were reason to think history could repeat itself in this unlikely fashion, it would scarcely be sound policy to encourage deliberate copyright violations and additional litigation as a means of obtaining approval for licensing provisions that could not otherwise be negotiated lawfully.

I am glad that not only is the DOJ giving this serious scrutiny, but so are a group of law professors. James Grimmelmann at NYLS has put together a great conference in New York, October 8-10, 2009. This is legal scholarship at its best – providing independent, scholarly scrutiny of incredibly complex issues that affect the public interest.

Feeling Handy

To my students, I'm an intellectual-property law professor. But to my mom, I'm a handy son who helps with projects around the house.

 

I was over at my mom's house helping her hook up her new LCD panel television and TiVo HD. But there was a problem. I couldn't get the new TiVo to work through the TV's HDMI jacks. HDMI is, I understand the preferred way to connect things to achieve the best quality. Finally, I got the picture to come through. But with this message:

HDMI Not Permitted

The TV or audio receiver is not compatible with HDCP digital rights management standards. Unplug the HDMI cable between the DVR and the TV or audio receiver.

Use the supplied component video cable instead to connect video from the DVR to the TV. You will need to connect a separate cable to the same TV input for audio. 

If you need help, see the Start Here poster or visit TiVo Customer Support.

"I'll be darned," I told my mom. "You're having an intellectual property problem."

There are so many great things about life in the new millennium. And then there is DRM.

Google Book Search and Contractual Voodoo

Let's say that you have a good idea for an internet application, but it would involve infringing millions of copyrights. You'd like to negotiate a deal, but there are hundreds of thousands of people with whom you'd have to negotiate. So what do you do? 

Here's an idea: Find just one or two agents to represent all the copyright holders with whom you'd like to negotiate. These superagents do not actually get people's permission to represent them ... that would be impractical. Instead, these agents simply declare themselves to be representatives of the copyright holders. Then you and the agents hammer out and sign a contract that binds all of the copyright holders. 

There is, obviously, one big problem with this plan. It is completely preposterous. Contract law does not allow for it. It is elementary that you cannot bind someone to a deal without their consent. 

Yet Google, with their Google Book Search program, is on the verge of accomplishing just such a feat of contractual voodoo. How? Through a proposed settlement agreement of a class-action lawsuit.

If, before launching Book Search, Google had filed a declaratory-judgment action to determine whether they were on solid legal footing, Google's prospects might have been quite meager.

But Google did not do this. Instead, the folks at Google went with a much more promising brute-force approach: Google debuted their service, grew it steadily, and attracted admirers. Having taken command of the status quo, they sat back and waited to be sued. When Google was inevitably hailed into court, it finally had someone across the table with whom it could negotiate. And negotiate it has. The 141-page settlement agreement is the licensing agreement that Google could never have reached otherwise. 

Class actions are a necessity for certain kinds of disputes. And there undoubtedly needs to be a way for all disputes – class-action suits included – to be settled. But this is not a case where what's done is done and the courts must make the best of a bad situation by creating some final resolution to set the matter to rest. Google Book Search is not, for instance, a toxic spill or a cancer cluster that can't be undone. The harm can be stopped immediately. Specifically, if Google Book Search infringes copyrights, Google can pull the plug on it tomorrow. 

So as a settlement agreement, this one strikes me as somewhat fishy. 

I like Google Book Search. I see it as a social good of substantial magnitude. But that doesn't make the settlement agreement wholesome. It calls for careful scrutiny. The final fairness hearing is on October 7, 2009, and objections must be filed by September 4, 2009. I hope the court will get to hear some thoughtful criticism.

Digital History Made This Month: iTunes Music Now DRM Free

This month, Apple's iTunes made the final transition to ridding itself of DRM (digital rights management) restrictions on the music files it sells. That means that the iTunes software and associated encryption algorithms are no longer trying to prevent you from taking newly purchased iTunes music to an unauthorized computer.

This is a great thing for iTunes consumers, because it means they no longer need to worry about the red tape of trying to authorize and de-authorize different computers and players just to hear the music that's already been paid for. It also means iTunes consumers are no longer tied down to iPods and iTunes software to play their music. 

But there is a significance to this that goes far beyond its impact on consumers or Apple. I would call this is a red-letter day in the history of intellectual property. Ten years ago, when Napster and illegal downloading were scarring the pants off the record business and much of the rest of the entertainment industry, it looked like to me and to many people like we were headed into an era of trusted systems – where proprietary formats and cooperating hardware would hold a Big-Brother-like grip over audiences – deciding what people could and could not do with reproductions of copyrighted works. It was in that environment that the Digital Millennium Copyright Act was passed, which made it a criminal offense to defeat DRM systems through hacking or reverse engineering. 

Apple's successful push to make iTunes music DRM-free indicates that the survival of the entertainment industry, in fact, did not hinge on DRM technology and the passage of the DMCA as Big Hollywood would have had everyone believe. It turns out, if you charge reasonable prices, people are generally willing to pay rather than go out of their way to get copies unlawfully.

A big downside of DRM for society is that it creates a technological barrier to exercising fair-use rights. So this development with iTunes is a very happy one. By shedding DRM in this instance, the free market actually provided people with a freedom that Congress was all too willing to bargain away. 

Public Domain Site of the Month: NOAA Photo Library

The National Oceanic and Atmospheric Administration, better known as "NOAA," has made a huge number of incredibly valuable public-domain images available on their photo library website.

Searchable and organized into collections and albums, the NOAA image collection includes nature at its scariest (tornados and lightning), cutest (curious and cuddly baby polar bears), and ugliest (scorpion fish and angler fish).

A particularly helpful reference set is a collection of animal shots called NOAA's Ark. While most of the collection is utilitarian or photojournalistic in character, there are some artistic photographs as well. And it's not just photographs. There are beautiful antique etchings and woodcarvings.

NOAA's librarians, developers, and photographers put forth a lot of effort to create such a valuable public resource. It's appreciated.

Copysquare article: "Rethinking Sharing Licenses for the Entertainment Media"

The Cardozo Arts & Entertainment Law Journal just published my article laying the philosophical and legal groundwork for the copysquare sharing-license scheme: 26 Cardozo Arts & Entertainment Law Journal 391. An extended abstract is here.

Also, Ben Bildstein in Australia (whom I had the pleasure of meeting in Sapporo at iSummit) blogged about copysquare and konomark on The House of Commons. He provided a thoughtful summary and analysis of the concepts, a good example, and, only loosely relatedly, a link to a brain-bending puzzle about connecting dots with only four end-to-end lines. (I can do it in just three lines - so there! (Hint: You've got to think like a lawyer, not like a mathematician.))

And here are pictures from the panel discussion in September at Cardozo Law School in New York, sponsored by the Squadron Program in Law, Media and Society and the Cardozo Arts & Entertainment Law Journal. It was a thoroughly enjoyable time!

Museum of IP: Game Genie

Innovative Add-on Device for Video Game Console Not Copyright Infringement

Lewis Galoob Toys, Inc. v. Nintendo of America, Inc.
in the United States Court of Appeals for the Ninth Circuit
964 F. 2d 965 (9th Cir. 1992)

The Nintendo Entertainment System home video-game console was wildly popular in the mid-to-late 1980s. The games for the system were carried on cartridges, which were plugged into the console. With hits such as Super Mario Bros., kids around the world wore out their fingers getting their on-screen character to dodge hazards, jump chasms, and collect magical powers. By keeping their character alive, gamers could advance to ever higher levels of the game, discovering new worlds for their character to inhabit.

If you ran out of lives, and it was game over. There was no picking up where you’d left off. Gamers had to go back to the beginning of the game and start anew. There was no way to cheat, at least not until spunky toy maker Galoob debuted the Game Genie.

Instead of plugging cartridges directly into their Nintendo, Game Genie owners would plug their game cartridge into the Game Genie, and then plug the Game Genie into their Nintendo. Once plugged in, the Game Genie was able to grant players’ wishes by increasing the number of lives they had, increasing the speed at which they could travel, and giving them unearned magical powers, such as allowing them to float above obstacles that would otherwise doom them.

By literally getting between the computer chip in the game cartridge and the computer chip in the console, the Game Genie was able to selectively block and replace data from the cartridge. For instance, when the cartridge might signal “this player has no lives left,” the Game Genie would dump that signal and replace it with the message, “this player has five lives left.”

Nintendo was not amused. The company sued Galoob for copyright infringement. The federal district court sided with Galoob, and the Ninth Circuit affirmed.

Nintendo argued that Galoob infringed its copyrights by creating “derivative works” based on its copyrighted games. The Ninth Circuit excused Galoob with a somewhat technical analysis. A derivative work, the court explained, must incorporate the original work in some “concrete or permanent ‘form.’” The court said the Game Genie does not contain, produce, or duplicate the original game in any lasting form. The court also made arguments about the importance of allowing freedom to innovate, comparing the Game Genie to the important innovation of spell-checkers that enhanced existing word processor programs. A finding of copyright infringement in this case, the court warned, might chill innovation and fail to protect society’s interest in the free flow of ideas, information, and commerce.

In an independent stream of analysis, the court also held that Galoob's device constituted "fair use" under copyright law.

Do We Need a Mode of Voluntary Surrender of Publicity Rights?

Creative Commons, a non-profit founded by Larry Lessig and others, aims to “rebuild a public domain.” The project is largely a reaction to the expanding scope and duration of copyright protection under law, as well as burgeoning copy-protection technologies incorporated into computers and consumer electronics. To achieve its aims, Creative Commons offers a variety of pre-fab sharing licenses that copyright holders can use to voluntarily surrender some of their legal entitlements. This allows others to “rip, mix, and burn” licensed works – a boon, as many see it, to cultural freedom. Something in the realm of 200 million works are now CC-licensed.

But what do we do about publicity rights? Common-law and statutory rights of publicity in an increasing number of jurisdictions allow people to sue others for the unauthorized commercial use of their image, likeness, or voice. And Creative Commons licenses release only copyright entitlements – not publicity rights. For a photo of an inanimate object, publicity rights are irrelevant. But a photo of a person may not be available for ripping, mixing, and burning in “commercial” contexts, despite being Creative-Commons licensed.

How serious is this as an impediment for a would-be user of CC-licensed works? It depends on how risk-averse the would-be user is. What counts as “commercial” is poorly defined by right-of-publicity case law . In addition, because a significant number of cases construe “commercial” extremely broadly , concerns about publicity rights may entirely discourage the risk averse from using CC-licensed work in any instance where someone stands to make any money – even if very little .
Assuming you share the goals of the free culture movement, aspiring to empower people with the means to rip-mix-and-burn their way to freer and more powerful expression, then the right of publicity issue is very significant. Audio with identifiable human voices and images with identifiable faces have tremendous communicative power. To get an idea of the value of the human face in presenting information, take a look at your run-of-the-mill bank brochure or health-insurance website. They are filled with people – mostly sublimely happy people who are conspicuously anxiety-free.

For a more quantifiable measure of the power of human faces, take a look at Corbis, the image-industry powerhouse, owned by Bill Gates, that licenses its more than 100 million photos to media producers for big bucks. The examples above are from Corbis’s current back-to-school push. The frolicking chemistry students are particularly hilarious. Wasn’t your high school like that? Gosh, if I had a buck for every good-natured gaggle of modestly dressed youngsters laughing it up as they hang out near the periodic table of the elements ...

So if citizens are to be set free to rip, mix, and burn the human voice and images of human faces, there’s a need for a companion regime to the copyright licenses of Creative Commons that aids the voluntary surrender of publicity rights.

How to carry this off is a real head-scratcher. One of the things that provides a safety net for people considering licensing their content under an irrevocable Creative Commons license is the knowledge that, despite a partial surrender of their copyright, they at least retain control over their image, likeness, name, and voice under the right of publicity. This control protects those who CC-license photos of themselves from becoming unwitting spokesmodels for a company’s ad campaign. (Cf. the Virgin Mobile fiasco.)

Thus, the great intellectual challenge of a sharing license regime for the voluntary surrender of publicity rights is carefully delineating categories of usage. That is, how can we legally define rights such that they conform to people’s comfort zones? For instance, say I have a great photo of my worried face. I might be willing to agree to a license or release of this image that would allow a university program to illustrate its flyer for a test-anxiety reduction workshop, but I might flinch at the idea that it would be used in a magazine ad for Zoloft.

I think part of the answer lies in providing licensors with notification of uses and a right to reject, which are aspects of the copysquare license that I am currently developing. In the meantime, I hope konomark might enable the use of identifiable faces and voices by various creators in the absence of pre-fab licenses.

Museum of IP: Recording Industry Associaton of America v. Diamond Multimedia Systems, Inc.

The record industry fails to stop the MP3 player

Recording Industry Associaton of America v. Diamond Multimedia Systems, Inc.
in the United States Court of Appeals for the Ninth Circuit
180 F.3d 1072 (9th Cir. 1999)

Debuting in 1998, Diamond Multimedia's Rio PMP 300 was the first commercially successful personal MP3 player in North America. And it was the realization of a long brewing fear of the record industry.

With old analog technology, sound recordings lost quality with each successive generation of copying. So if you wanted a high-fidelity copy of a song, you had to buy it from the record company. But with the advent of digital sound recordings, a copy of a copy of a copy would sound just as good as the original. The only problem was, the songs took up an enormous amount of memory. Then along came MP3. This digital format allowed songs to be stored in one-tenth the amount of computer memory formerly required. This breakthrough suddenly allowed perfect copies of songs to be transferred over the internet and downloaded in minutes.

The pocket-size Rio player then offered the ability to take these downloaded songs off the computer and out into the world with a pair of headphones. The record industry, through the Recording Industry Associaton of America, immediately reacted by suing Diamond to get an injunction halting sales. The U.S. Court of Appeals for the Ninth Circuit sided with Diamond, and listening to music has never been the same again.

Before the courts, the case turned on whether the Rio fit the definition of a “digital audio recording device” under the Audio Home Recording Act of 1992, an amendment to copyright law obtained by the record labels when the threat of digital copying of music was dawning. The court held because the Rio gets its music from computer hard drives, and since computer hard drives are used for things other than storing music, the Rio did not technically fall under the ambit of the 1992 law.

The court conceded the RIAA’s argument that permitting this loophole would “effectively eviscerate” the 1992 act. Nonetheless, the court chose neither to ignore the plain language of the statute, nor to upset what it called a “carefully negotiated compromise” between the record companies and the computer industry during Congress’s consideration of the legislation.

The original PMP 300 stored just 60 minutes worth of music. The lawsuit that Diamond successfully defended, however, paved the way for today's iPods that can store days' worth of music.

Pictures:

Above right: The packaging of original Rio player debuted by Diamond in 1998, the PMP 300. (From the MOIP's physical artifact collection. Photo by Eric E. Johnson.)

Above left: The Rio PMP 300. (From the MOIP's physical artifact collection. Photo by Eric E. Johnson.)