The end of piracy?

(via ORG-discuss list) Pirates, pirates, pirates. it's all there is in the news lately. Pirates in Somalia, pirates in Sweden, pirates online, pirates in culture. We have pirates jumping out of our breakfast cereals it seems. Last week saw the pinnacle of hyperbolic coverage of piracy of the Internet sort when the Pirate Bay operators were sentenced to a year in jail. We were promised by talking heads on TV that the ruling would be the beginning of the end of internet piracy, and that a new and happy future where everyone respects copyright law is finally within reach.

But then reality got on the way again. First it was a report from Norway that informed us of something we already knew anecdotally, and that is that teenagers who download music (legally or illegally) are 10 times more likely to pay for music than those who do not. In other words, the next generation of music consumers is downloading. This is the market, deal with it.

Then Bram Cohen gave an interview to The Register (I know, I know), where I think he gave the most insightful view of why there will always be a surplus in music production:

"Music has a bigger problem, it's that people want to make it. It's the peacocks tail. The reason guys make music is that they want to get laid. So men are usually willing to pay a lot of money in the hope of getting laid. Anything that helps you get laid with amazing regularity is something you would expect a tremendous oversupply of. So we have unbelievable amounts of music. People pay a lot to learn how to play music and it's ridiculous to expect people to make money off it. Normally if you want to make money you do something no one wants to do."

Must learn to play an instrument... but I digress. So, there will always be an offer surplus, and those who consume the most are also the ones you have been fighting during the last 10 years. Moreover, another study shows that users view P2P subscription services favourably, particularly if it comes with their ISP. This at the same time as yet another effort to try to sneak in three-strikes into European regulations have been unsuccessful.

A picture is starting to emerge, so here is some free advice for the music industry. Instead of spending an inordinate amount of money in pursuing a failed business model, why not look for other avenues? Copyright owners have been pursuing P2P providers for too long, and there is no indication whatsoever that they will be able to eliminate file-sharing through the courts, as another service will simply take the place of the previous one. This is why copyright industries have been pushing for the unpopular "three-strikes-and-you're out" strategy, because it leaves enforcement in the hands of the intermediaries. However, why not make them partners in your business and allow some form of blanket licensing scheme by which ISPs charge a higher broadband premium service with a download package. The artist gets the money, the ISPs geta cut (and do not have to enforce a nightmarish policy), and the user gets what they want.

Too much of a happy ending? Unrealistic utopian wishful thinking? To quote a great man, you may say I'm a dreamer, but I'm not the only one.

PRS not horsing around with copyright

(First ear muffs, next headphones?)

The British Performing Right Society (PRS) has been in the news recently thanks to its continuing struggle with Google. The PRS is also known for its forceful pursuit of performance fees from an unsuspecting public, such as suing companies whose workers listen to the radio where it can be heard by the public, or asking garage owners to tell their customers to turn off the radio as they drive in.

Now a stable owner in Wiltshire has been asked by the PRS that she must turn off her radio when employees are around, or pay a licence fee. The problem is that the purpose of the music is not for the employee's benefit (who do not like classic music and turn it off at any opportunity), it is for the benefit of the equine guests at the Malthouse Equestrian Centre.

I know that attacking the PRS is like flogging a dead horse, they are such an easy target that I will stop hoofing a laugh and happily ride away from any further equestrian puns. However, there are some interesting questions here. Shouldn't the law establish a minimum number of employees that would qualify a business for licence fee? If purpose and intent are of importance as to whether or not a fee should be paid, shouldn't there be an exception for equine listeners? Similarly, I am left wondering about how exactly does the PRS calculate how to collect its royalties. For example, we have to assume that they are collecting fees for composers and publishers that they do not represent. Who gets that money? Do they pocket the difference, or give it back to the licence fee payers? Is there a change in fee for works whose composer should be assumed to be in the public domain. I know that the sound recordings in most instances will still be under copyright even if the composer is long dead, but shouldn't there be reduced fee as the work performed only applies to publishers and not composers?

And what about the fairness of calculating exactly how much a licence should be worth? A woman who plays music to her reluctant employees and a handful of guest horses is surely not in the same category as a pub owner with hundreds of customers. The PRS makes this point in its fee guideline to customers:

"The rates in this section vary depending on the number of days in the year music is played in the workplace, canteens or staff rooms; the number of half-hour units per day music is played in the workplace, the number of employees in the workplace to whom the music is audible and the number of employees to whom the canteen/room is available."

Fair enough, but my question is whether there is a societal interest in having a blunt collective rights management system that seems intent in squeezing the last penny from the public. This is particularly relevant when one considers that collective rights societies have already extracted money from the radio station. Is this fair?

I will leave you with this thought. In Spain the burden of proof lies with the collecting society, which has given rise to a number of cases of cafes and bars playing only Creative Commons music. Shouldn't we have something similar in the UK? It would be interesting to have some test case in which a bar plays only CC-licensed music.

YouTube starts blocking music videos in the UK

This news item has been covered everywhere, but it is worth highlighting. YouTube has decided to blackout all of its official music videos as of yesterday in the UK due to a negotiating failure with the British Performing Right Society (PRS), the collecting agency for British writers and composers. YouTube claims:

"Our previous licence from PRS for Music has expired, and we've been unable so far to come to an agreement to renew it on terms that are economically sustainable for us. There are two obstacles in these negotiations: prohibitive licensing fees and lack of transparency. We value the creativity of musicians and songwriters and have worked hard with rights-holders to generate significant online revenue for them and to respect copyright. But PRS is now asking us to pay many, many times more for our licence than before. The costs are simply prohibitive for us - under PRS's proposed terms we would lose significant amounts of money with every playback. In addition, PRS is unwilling to tell us what songs are included in the license they can provide so that we can identify those works on YouTube -- that's like asking a consumer to buy an unmarked CD without knowing what musicians are on it."

PRS on the other hand are "shocked and disappointed". ORLY?

So, who is in the right here? There can be no doubt that YouTube have taken this step as a negotiating strategy, and it does seem a bit disproportionate. However, it is the logical strategy given the over-reaching demandsthe from PRS. Seemingly, PRS is suffering from chronic short-sightedness that would rather lose the vast promotional value of YouTube to its associates in exchange for a squeezing a few more pence from the service providers. Demographics do not lie, and YouTube has become one of the best places to promote new musical talent to younger audiences, as well as cementing interest in established brands. I find it astounding that PRS does not see the new technologies as allies instead of cash cows that must be milked for all they are worth.

Who wins? Believe it or not, independent labels win. As of today, typing "music video" on YouTube will return several independent videos not affected by the blackout, including one of my new favourite songs, Oren Lavie's amazing "Her Morning Elegance". Here is an anecdote for the bright sparks at PRS: I first saw this video on YouTube after it went viral, and now I have the CD playing on my computer as I write.

I have little doubt that PRS will have to cave in on this one, as I cannot imagine PRS members being happy about being shut out of one of the largest promotional outlets they have at the moment. If they do not relinquish their demands, other valuable services are set to follow YouTube's lead, such as MySpace.

Amazon to restrict read-aloud functions

The Guardian has an excellent post on the Amazon Kindle controversy. The Author's Guild threatened legal action against Amazon because the Kindle's read-aloud function "is not paying anyone for audio rights". Neither does my sister when she reads books to my nephews, but I digress.

What a sad state of affairs, some authors seem intent on stifling a new technology simply because they are not squeezing out the last penny from users.

Eircom to filter out pirate sites

Ireland has been suffering a bit of a copyright nightmare recently. Firstly, Eircom was sued by the music industry, and settled out of court conceding that it would implement some form of "three-strikes-and-you're-out" policy. As Sheldon from BBT would say "It is a sports analogy. Baseball to be precise".

Now it seems like Eircom will further bow down to the demands of an angry music industry by filtering out "pirate sites". This is such a far-reaching, disproportionate and blunt response that I am quite literally lost for words. It seems like the response from a panicked music industry is to revert Western ISPs to a type of totalitarian filtering state where only approved content can get through. Whatever happened to our dream of a free Internet?

What worries me the most is that strategies like these one tend to replicate across the globe. First it was New Zealand with its "guilt by accusation" legislation. Then it was Ireland thanks to a spineless Eircom. I am not a fan of slippery slope arguments, but it would not be an exaggeration to fear that something similar could happen in other countries. I am particularly concerned about potential official action following the Digital Britain report.

Here is an idea for a new business. Go somewhere sunny and set up a remote VPN company. What? Someone already wrote a book about such a thing? Drat!

Will reading aloud infringe copyright?

Neil Gaiman has proved once more that he's One Of The Good Guys. He has posted an interesting comment about the new Amazon Kindle, and its reading-aloud capabilities. Apparently, his publishers think that this infringes their licensing agreement, as there is a profitable market for audio books. Gaiman says:

"When you buy a book, you're also buying the right to read it aloud, have it read to you by anyone, read it to your children on long car trips, record yourself reading it and send that to your girlfriend etc. This is the same kind of thing, only without the ability to do the voices properly, and no-one's going to confuse it with an audiobook. And that any authors' societies or publishers who are thinking of spending money on fighting a fundamentally pointless legal case would be much better off taking that money and advertising and promoting what audio books are and what's good about them with it."

Wise words, but I am sure that he is in the minority. I imagine there is going to be a keruffle over this when many authors try to squeeze more money out of distributors.

(thanks to PanGloss for pointing this out to me).

Update on Bad Science row

The Bad Science copyright chill has seemingly reached an impasse. The offending clip is still not available on the blog, but it can be found in countless websites as bloggers all across the country have started infringing copyright in a show of solidarity for Ben Goldacre. The Streisand Effect Strikes Back. LBC's lawyers would be crazy to sue Dr Goldacre now.

Beyond the legal aspects of the affair, I have been fascinated by how this row has been played out in the blogosphere. The overwhelming reaction has been favourable to Bad Science, perhaps because the geeks consider him as one of our own. On the contrary, look at what has been happening the the blog belonging to one Ms Jeni "surviving in this business we so lovingly call 'show'" Barnett (I was going to add a snarky remark, but I shall endeavour to restrain myself; it's not fun when it's too easy). Ms Barnett opened her blog to comments, she claimed that even those negative ones. However, the blog was flooded with all sorts of attacks to her view, mostly thoughtful and based on science. She has now removed the comments, and has left this jewel:

"To all of you Bad scientists, who are SO angry with me, good luck with your research. Should you fall ill I will attend you as best I can with my motherly love. Should I fall ill, as a non paid up member of your club, will you administer to me? And should I refuse your drugs then what?"

I am loath to use pop psychology here, but there is some serious passive-aggressive behaviour going on with Ms Barnett (finally explaining why she is both vulnerable and strong). Irresponsibly ignorant broadcasters tend to be vocal in their views because they rely on the belief that the public at large is just as ignorant as they are, However, when presented with a large number of intelligent and well-informed people, they easily cave in and resort to playing the victim. It usually takes the form of accusing their detractors of elitism. Ms Barnett just got a taste that there are more well-informed people than she thought.

A peripheral phenomenon that I have been paying attention to is that of the rising power of Stephen Fry's Twitter stream. In blogger terms, being slash-dotted or being boing-boinged used to be a sure sign that one had finally made it, as well as being the source of a barrage of traffic capable of bringing down servers (however, it is not as cool as being mentioned by Neil Gaiman). Apparently, the item was posted in the stream, bringing the Bad Science blog to its knees, but spreading sympathy for Ben Goldacre across the twittering classes. Stephen Fry has become the Grand Geek, the measure by which all geekdom shall be known. Hopefully, with that multitude of support, the Jeni Barnetts of the world do not stand a chance.

Bad Science meets Bad Copyright

Ben Goldacre is the author of the Guardian column Bad Science (and eponymous blog). Dr Goldacre is a champion of rationality in a world enamoured with sloppy thinking, uncorroborated anecdotes and dodgy statistics. For many years he has been at the forefront of the battle against the pernicious MMR vaccination scare that took a hold of the British media some years ago, a scare that has had negative health implications in the present time. As part of that campaign, Dr Goldacre posted a 20 44-minute clip from broadcaster Jeni "Vulnerable passionate, strong" Barnett (yes, there is a missing coma or hyphen between vulnerable and passionate; and yes, there seems to be a contradiction in terms between being vulnerable and strong). The clip came from a 3-hour live show in talk radio LBC (London's Biggest Conversation), and Ben included it as the perfect example of the anti-vaccination, anti-science agenda that prompted the MMR scare in the first place. However, this clip proved too much for LBC's lawyers, who sent a letter to Dr Goldacre demanding the immediate removal of the clip because it infringed the station's copyright. Dr Goldacre has since complied with the letter. Was LBC justified in their demand? Was Bad Science right to comply?

This is a straightforward fair dealing case. For those readers located in more enlightened copyright territories, the UK has an exhaustive list of non-infringing acts, commonly known as fair dealing. Other countries have a more open-ended approach, such as the fair use doctrine. Fair use allows for a much wider interpretation of what constitutes a non-infringing act, while fair dealing is considerably more restrictive. Nevertheless, s30 of the Copyright, Design and Patents Act 1988 allows for the use of copyright works for the purpose of criticism, review and news reporting. The relevant part of the section reads:

"30 (1) Fair dealing with a work for the purpose of criticism or review, of that or another work or of a performance of a work, does not infringe any copyright in the work provided that it is accompanied by a sufficient acknowledgement and provided that the work has been made available to the public."

So far so good. The radio show was certainly made available to the public, and the purpose of the clip was that of criticism and review. Dr Goldacre even invites his readers to mine the clip for platitudes and play some form of Bad Science Bingo, calling out each canard. However, the question here is that the published clip is too long.

To my mind, the question at the heart of this issue is one of balance between copyright, public interest and freedom of expression. Thankfully, there is an authority which deals precisely with this question, that of Ashdown v. Telegraph Group Ltd. In that case, former Lib Dem leader (and now Lord) Paddy Ashdown wrote some minutes from a meeting held with Tony Blair. A substantial part of those notes were published by the Sunday Telegraph, so Lord Ashdown sued for breach of confidence and copyright infringement. The Telegraph lost the case and appealed on the grounds of freedom of expression, and they lost that as well. While the final ruling did not favour the Telegraph's freedom of expression defence, Lord Phillips adopted a three-pronged test for cases dealing with the interface between copyright and criticism and reporting. The elements of the test are: 1) whether there is commercial competition between the parties; 2) the public interest and/or human rights implications; and 3) the amount and importance of the copied material. Using this test, I believe that Dr Goldacre may have received a positive ruling if he took this to court. Let's look at each one of the elements described:

1) Commercial competition. This evidently favours the Bad Science blog as the clip in question was not made available in the Guardian, it was published in a non-profit blog clearly for the purpose of criticism. While one could argue that Ben Goldacre makes a living out of the Bad Science brand (via books and his Guardian column), it is obvious that he is not in the same business as LBC.

2) Public interest. This part of the test also favours Dr Goldacre. There are few topics of more importance than that of health, and the health of children is of particular interest to society. The MMR vaccine scare has been a national shame for many years, one that has even led to an increase in the recurrence of measles amongst the relevant infant population. In my view, there is overwhelming public interest to continue to expose those who perpetuate the lie that there is something wrong with the MMR vaccine, and I strongly believe that any court would be forced to take this view in light of the evidence.

3) The amount and importance of the copied work. This is definitely where Bad Science has some problems, as by any measure the clip is quite extensive. It could be argued that a 20-minute extract from a 3-hour show is not too much, but this is definitely where the plaintiff's lawyers would have a better chance of success. Nevertheless, I still think that the previous two elements trump the length argument.

Beyond the strict legalities of the case, one has to feel that Bad Science has done nothing ethically wrong, on the contrary, the reproduction of the clip serves the public interest. Those who espouse the blatantly damaging view that MMR should be trashed, and worse, use their public standing to further such myths, should be held accountable. It is typical of those with indefensible positions to use, misuse and abuse copyright law in order to stifle debate (Scientology anyone?) Copyright law serves a clear purpose to society, but when it is used to censor and remove contrary opinions then the public interest should prevail.

Ben Goldacre has taken down the clip, which is understandable due to the forceful nature of the legal threat and the uncertainty in the law. Thankfully, this is the user-generated era, and nothing remains hidden for long. The clip is now hosted elsewhere, and there is even a transcript somewhere on the Interwebs. This should serve as yet one more example that the Internet does not take censorship lightly, and any attempt to remove information will have the exact opposite effect, and prompt its viral reproduction.

JK Rowling wins Lexicon case

Edinburgh University honorary graduate Joanne Kathleen Rowling (right) has won her case against Steven Vander Ark, the author of the Harry Potter Lexicon (the site is now down). I have been following this case with interest, as I believe it is a prime example of the growing conflict between traditional copyright owners and fans generating their own content based on existing material. My opinion has been that while content owners are usually happy to allow fans to tinker with the source material, they will sue if the fan crosses the commercial line.

The facts of the case were rather straightforward. Steven Vander Ark maintained the website called the Harry Potter Lexicon for several years, amassing an impressive amount of background information about every single aspect of the Potterverse. The Lexicon proved to be such a good resource that it was reputedly used by Warner Bros in their Harry Potter productions. However, when Vander Ark made a book deal with obscure publisher RDR Books to turn the Lexicon site into a reference tome, Rowling sued for copyright infringement faster than you can say "Expelliarmus". The Lexicon argued that this was a derivative work, a reference based on the original, and therefore fell within fair use.

The U.S. Disctrict Court of the Southern District of New York has now granted an injunction against the Lexicon. The main legal question at the heart of the District Court's reasoning was whether the Lexicon was merely a reference guide to a work of fiction (and therefore a derivative work under American copyright law), or if it lacked originality and infringed JK Rowling's works. The District Court first tried to determine the nature of the Lexicon:

"The Lexicon entries cull every item and character that appears in the Harry Potter works, no matter if it plays a significant or insignificant role in the story. [...] Each entry, with the exception of the shortest ones, gathers and synthesizes pieces of information relating to its subject that appear scattered across the Harry Potter novels, the companion books, The Daily Prophet newsletters, Famous Wizard Cards, and published interviews of Rowling. The types of information contained in the entries include descriptions of the subject’s attributes, role in the story, relationship to other characters or things, and events involving the subject. Repositories of such information, the entries seek to give as complete a picture as possible of each item or character in the Harry Potter world, many of which appear only sporadically throughout the series or in various sources of Harry Potter material."

This seems like an impressive undertaking, with considerable work and thought going into it ("sweat of the brow" anyone?) The District Court agreed that this was akin to the many reference works accompanying other multi-volume Fantasy series, such as The Lord of the Rings and Narnia. However, the court found some problems with the Lexicon, namely:

"Although it is difficult to quantify how much of the language in the Lexicon is directly lifted from the Harry Potter novels and companion books, the Lexicon indeed contains at least a troubling amount of direct quotation or close paraphrasing of Rowling’s original language. The Lexicon occasionally uses quotation marks to indicate Rowling’s language, but more often the original language is copied without quotation marks, often making it difficult to know which words are Rowling’s and which are Vander Ark’s."

The District Court analyses leading case law in the issue of transformative and derivative works (such as Castle Rock Entertainment v. Carol Publishing Group). The District Court agreed with the defendants that the Lexicon conveyed “new information, new aesthetics, new insights and understandings” as defined in Caste Rock. However, the court points out that:

"The transformative character of the Lexicon is diminished, however, because the Lexicon’s use of the original Harry Potter works is not consistently transformative. The Lexicon’s use lacks transformative character where the Lexicon entries fail to “minimize the expressive value” of the original expression. A finding of verbatim copying in excess of what is reasonably necessary diminishes a finding of a transformative use. As discussed more fully in analyzing the “amount and substantiality” factor, the Lexicon copies distinctive original language from the Harry Potter works in excess of its otherwise legitimate purpose of creating a reference guide."

In other words... plagiarism! The Lexicon's undoing may be the very lack of originality displayed by the copy-and paste culture.

While I was naturally sympathetic to Vander Ark and the Lexicon, the injunction is very persuasive in its reasoning. However, it must be noted that American originality thresholds are higher, and I wonder if a different decision might have been reached this side of the pond.

Anyway, Rowling has taken her wand and said Avada Kedavra! The Lexicon drops dead.

Scientology misuses copyright. Again.

Scientology has had a long and interesting history at the courts in using copyright law to remove content which it deems infringes its rights (*cough*censorship*cough*). Scientologists have repeatedly used copyright law in order to remove most references to aliens, Xenu, volcanoes, and DC-10 planes from public debate by alleging that many documents and depictions of scientologist beliefs are actually infringing its copyright.

Now the EFF reports that those whacky scientologists are at it again by issuing several DMCA take-down notices to several channels which criticise scientology.

It is sad that a movement needs to rely on preposterous copyright claims in order to keep what they actually believe from the public. But then again, there is reason to hide the fact that Scientologists believe in Xenu, the alien ruler of the Galactic Confederacy, who 75 million years ago brought billions of people to Earth, stacked them around volcanoes and blew them up with hydrogen bombs. I mean, if word of this got out, they could not charge people for the secret, right?

Internet memes against copyright term extension

I found this wonderful timeline of Internet memes yesterday, so many happy memories of hours wasted in front of a YouTube screen... but I digress. I have been frustrated by the seemingly unstoppable war on evidence waged by copyright policymakers, a frustration made worse by the nagging certainty that there is nothing we can do to stop term extension. However, watching those internet memes got me thinking about the power of the Internets in conveying ideas in a fun and viral manner.

Therefore, I would like to suggest that we unleash the power of memes in service of the copyfight. Do you oppose term extension? Kill a Mentos! Record it, upload it, blog about it, Facebook it, Flickr it, Twitter it.

I'm off to the shops to buy some diet soda and some chalky mint sweets.

Evidence-based copyright policy? No thank you!

Some years ago, James Boyle made a compelling case in favour of evidence-based policymaking in an article attacking the European database right. Since then, I have become a strong believer in injecting some empirical evidence into copyright debates that are often filled with anecdotes of starving artists, scaremongering tales of decreasing sales, and misleading myths about the creative industries.

Back in July the EU Commission decided to support term extension for copyright in sound recordings despite all the evidence to the contrary. In the truest and finest tradition of evidence-free decision making, the Commission has used a tried and tested collection of baseless soundbytes to support their choices. The Commission tells us that:

"The extended term would benefit performers who could continue earning money over an additional period. A 95-year term would bridge the income gap that performers face when they turn 70, just as their early performances recorded in their 20s would lose protection. They will continue to be eligible for broadcast remuneration, remuneration for performances in public places, such as bars and discotheques, and compensation payments for private copying of their performances."

The problem with this argument is that the facts do not back up the assumptions behind it. For example, the Gowers Review of Intellectual Property came strongly against term extension for sound recordings after commissioning a report dealing specifically with the economic evidence for and against extension. The report concluded that "the case for an extension of the copyright term in sound recordings to be weak." More importantly, the report found that increasing term extension would be detrimental for the UK's balance of trade, and it would increase costs to consumers between £240 and £480 million GBP.

Just in case the above report did not constitute enough evidence, the European Commission actually paid for another report from the influential IVIR in Amsterdam. The report answers the arguments put forward by content owners one by one: extending terms further than 50 years will not encourage more production; it will not make any difference to investments by the record industries; and it will erode the public domain. The report concludes then that "[t]he authors of this study are not convinced by the arguments made in favour of a term extension." Strong words indeed.

On top of these reports, a number of UK-based IP academics issued a considered look at the existing evidence (and then wrote an open letter in The Times), and made another strongly-worded statement against enhancement. Particularly, it was felt that the issue of fees is not one of copyright, but one of contract. Most artists get their remuneration from initial contracts with record industries, and as such, the amount that these artists would gain from extension would be minimal or negligible. This report states that:

"We have seen no evidence that living artists as a whole would benefit decisively from an extension of exclusive rights held by record companies. The benefits will fall to those who need it least: already wealthy performers, and their estates and record companies. In fact, in as much as innovative musicians are users of existing recordings, their artistry will be hindered, not enabled, by extension."

This seems like quite a considerable amount of evidence against extending terms for sound recordings. Yet, the Commission ignored all of it, and went for the extension. Bernt Hugenholtz, the academic behind the EU report, has been generating buzz in the blogosphere by pointing out that this is an unacceptable state of affairs. In an open letter to the Commission, he states that:

"As you are certainly aware, one of the aims of the ‘Better Regulation’ policy that is part of the Lisbon agenda is to increase the transparency of the EU legislative process. By wilfully ignoring scientific analysis and evidence that was made available to the Commission upon its own initiative, the Commission’s recent Intellectual Property package does not live up to this ambition. [...] In doing so the Commission reinforces the suspicion, already widely held by the public at large, that its policies are less the product of a rational decision-making process than of lobbying by stakeholders. This is troublesome not only in the light of the current crisis of faith as regards the European lawmaking institutions, but also - and particularly so - in view of European citizens’ increasingly critical attitudes towards intellectual property."

This is indeed a sad resolution to the consultation process. In the past, copyright policy has been drafted only with content owners in mind. We have become accustomed to undemocratic policymaking that pays no heed whatsoever to evidence, and simply responds to the skewed opinions of a few artists protesting about the loss of revenue and spouting whatever emotional argument will boost their current lobbying effort. I seriously thought that with the Gowers Review ad the Lisbon agenda the status quo would change, and we may start getting at least some more rationality and consideration in new directives. I guess that my optimism was misplaced, and we are back to the same old one-sided debate.

If the Commission intends to continue drafting policy to please content owners, at least they should abandon their facade of balance and save themselves the bother and cost of commissioning research which they will later ignore. It will also save me the bother of writing a long rant.

Stealth copyright reform, act now!

A bit early on Sunday morning to try to organise an uprising, but this is what Lilian Edwards is doing this weekend. On Friday she wrote a long and detailed post about the way in which the 3-strike rule is going to be introduced by stealth this Monday July 7 2008. Yes, that is tomorrow.

Many of us thought that 3 strikes was on the way out, as this week saw Virgin Broadband look rather embarrassed when it attempted to send letters to people, and the effort backfired. But removing online connections to users who use file-sharing is the copyright industry's top of the Xmas wish-list, so it is not surprising that they should try and try until they can get it written into legislation. This Monday the European Parliament will vote for a set of four directives dealing with obscure telecommunication regulation. Buried deep in those directives, are several measures that deal directly with ISP liability. Most worrying for me, internet service providers will be obliged by law to "co-operate" with content industries. As PanGloss points out, "...in EC speak , this is a euphemism for being required to put in place a system akin to a 3-strikes regime."

Legislation by stealth is not new. The dearly departed Software Patent Directive was at some point subjected to the same tactics, when they tried to pass it in a Fisheries committee. The fact that this proposal is being sneaked through like this speaks volumes of the confidence that some of the proponents have on the strength of their argument. For more detailed look of the reforms, read this report by Monica Horten, or check out the Mobilisation Paquet wiki.

What to do? Write to your MEP if you're in Europe. You can find your MEP if you are from the UK here. Blog about it. Shout about it. Join the Facebook event. Hugh Hancock, of Machinima fame, has done an emergency video on the topic. So, promote the video.



I love how he uses a Rogue as the evil character, as a Mage I hate Rogues.

Music industry chasing its own tail

The British media has been covering heavily the the news that the British Phonographic Industry (BPI) and Virgin Media have sent its first batch of threatening-yet-polite letters to some of its customers. The move seems to have backfired a bit, as inevitably a disgruntled student has come out claiming that the letter was sent to the wrong person. Will McGree (20), is accused of downloading Amy Winehouse, which from his worried tone seems to be a much more insulting claim than being directly accused of "stealing" music. This latest campaign is part of the new strategy by the music industry to curb infringement (previous coverage of Virgin's letter campaign here).

I have to say that I do not get the music industry. One minute they are complaining how digital technologies and digital downloads are destroying their livelihood, and the next they start claiming that things are going well, and the challenges are being met. This should come as no surprise, after all, the BPI has to send a message to the public that their precious artists are an endangered species, while they must also send a message to investors and shareholders to reassure them of future profits. The fact is that the very same BPI has now released a new set of figures which demonstrates that alternative business models and digital downloads are proving to be an excellent source of income, while providing evidence that CD sales have not slumped as they often complain.

So, here is my set of recommendations to the BPI. I do not know why, I'm just feeling a bit generous today (and they are not likely to read this, are they?):

• Get your message straight. Is the digital environment good or bad? Are you suffering or profiting?
  
• Ditch DRM. Even those who seem willing to buy into the whole "stealing music" propaganda do not like DRM. In fact, I think that it is the most important stumbling block for further growth of digital music.
• Sending letters to customers is a bad business idea. They will switch to another competitor who does not send letters.
  
• Give Broken Records a contract.
  

There, that advice will see safely you into the next decade; no need to thank me though, this one's on the house.

(Further discussion at the IPKat, but I disagree entirely with their take on it).

Update: Becky Hogge speaks out on the subject in Friction.tv.

Virgin ISP to issue letters to file-sharers

If you can't beat them, send them a polite letter. This seems to be the latest strategy from the BPI. As the three-strikes policy seems to have failed, several outlets are reporting that the BPI has reached and agreement with Virgin Broadband to issue letters to its customers if there is a suspicion that someone may be illegally file-sharing in that household. The letter itself is quite interesting. It does not directly accuse the account-holder, but it states that:

"We have information that someone – and it may not be you – is using your Virgin Media internet account to access music illegally. However it happened, it is illegal. We therefore need you to take steps to stop it from happening again. The steps you can take are set out in the enclosed ‘What To Do Next’ section. You should know that if you don’t do this and the problem happens again, then you could face legal action."

This could definitely act as a deterrent, but it may also alienate customers and get them to switch providers. The other problem with this approach is that monitoring is not perfect, and it may produce false positives. The EFF has publicised an interesting study where innocent devices have prompted DMCA cease-and-desist letters just by being connected to BitTorrent.

This has been stated many times before, but it is worth repeating. If the music industry spent as many resources trying to change its business model to respond to the new realities in the digital environment, then they may have found ways of benefiting consumers, musicians and secure profits, while not alienating their customers.

The failing three-strike strategy

I've been reading Danny O'Brien's excellent post on troubled French three-strikes-and-you're-out law. Nick Jondet at French Law also informs us that the controversial piece of legislation will be presented later this month. This has left me wondering whatever happened to three-strikes here in the UK?


Those inclined to follow this story might remember that the year began with warning from the UK music industry that it would pursue a policy of allocating responsibility for online copyright infringement upon Internet Service Providers. The British blogosphere was up in arms (or more literally, up in thumbs) about the thought of having ISPs police internet piracy. Similarly, the European Parliament thought that this was a bad idea, as did just about every person with more than two working neurons. The thing is this, by removing access to the internet for an entire family, you are exercising punishment that goes beyond the offence. Not only that, in the digital age access to the internet has become an important part of everyday life, and removing it via an administrative decision violates every principle of justice that I can think of.

The three-strike policy seemed like the natural next-step escalation on the War Against Piracy. Suing the clients failed. Suing the users failed. Bribing college kids failed. So let's sue the ISPs! Or get them to enforce copyright for us! Funnily enough, I believe that the music industry may have realised that the decision has become unpopular. The BPI threatened to sue Carphone Warehouse if they failed to make the necessary appeasing sounds, an ultimatum that failed to materialise. Meanwhile, the music industry may be shelving their three-strike plan because of the prompt action by advocacy groups and the European Parliament. Some bad copyright policy may have been averted. Am I being too optimistic? Only time will tell.

On a related note, I was going to name this post "Whatever happened to... three-strikes?" but when I googled the title I realised that it had been used already by Andrew Orlowski. Ugh. I am deeply disturbed by that, I need to go and take a shower.

An end to the knitting saga

I never knew knitting was so popular. Yours Truly had a strange day yesterday, being quoted in The Times, and interviewed in the Daily Mail. The story has travelled far, it has been reported in Wired, Down Under, and even on the CBBC Newsround site (you know you have made it when a story you broke gets reported on the CBBC). To top up a crazy day filled with knitting puns and forgotten Doctor Who episodes, the BBC itself invited me for an interview in E24, BBC News 24 entertainment programme.

The experience was bizarre to say the least. I was invited into the BBC studio in Edinburgh, which is located in a small building in Holyrood Road. I was expecting something bigger, but there were only two people there, and the actual studio was a table with some chairs and a picture of Edinburgh as the background. No staff, no cameramen, just an automated camera, instructions to talk to a plastic cup (literally), and this guy talking into my ear. The interview was over too shortly, and I probably came across as either an illegal immigrant passing off as a university lecturer, or as an over-intellectual geek who needs to get out more (note to self: DO NOT make nuanced legal points in an entertainment program). I felt a bit ambushed, as the person who followed me was a BBC Worldwide exec saying that they invited Mazzmatazz to contact them to reach an agreement of some sort. The interviewer said that Mazzz had just contacted them and had asked where she could get in touch, so everyone wins.

This is a good resolution to all involved I believe. Hopefully the fans can continue knitting Oods, the BBC is seen listening to fans, and we have a nice collection of Dalek puns to ponder. And of course, we do not get a clear legal answer of whether the written instructions for doing something constitute a separate copyright to the artistic work that gave origin to it. Ilanah at IPKat thinks that this could be considered analogous to software and source code. Quite an interesting analogy.

Did I just lose a week pondering Daleks and knitting? I DO need to get out more.

Of fan art, mash-ups and licences

It's week two in the Knitting Wars (or Doctor Who and the Curse of Fatal Copyright). I have been surprised by the level of interest this is generating in the blogosphere, it has been ORGd, EFFd and BoingBoinged, it has also been picked up by the knitting community (I did not know there were so many angry knitters out there!) I have also been interviewed by The Times, so the story may have legs (which in Internet terms means that it will be on the radar for at least a fortnight). There have been some other interesting responses, such as one knitter siding with the BBC, and an excellent article by Jonathan Bailey on where this all fits in the wider fandom picture.

I think that the reason why this story has generated such interest is that it is seen as the typical Amateur David versus the Greedy Goliath. The blogosphere is particularly suspicious of any attempt to remove and take down things (remember the HD-DVD fiasco?) The story also fits well with the picture of corporate greed gone mad, and Brits also love to moan about the Beeb.

I must stress that I do understand why the BBC would want to defend their intellectual property. Doctor Who fans should understand that improved production values are expensive, and that the BBC needs to secure funding to continue giving us quality programming. However, I have to log my complaint about the horrible episode "The Doctor's Daughter", you could literally see the sterling signs in the eyes of the writers when they thought of a new Doctor Who spin-off directed at the teenage market. Even David Tennant seemed embarrassed by the whole thing. Similarly, it has to be said that the Adipose dolls were being sold on eBay by unscrupulous knitters, which appears to have prompted the whole action.

However, copyright owners should recognise that it is the fans who make or break their intellectual property, and as such, one should be very careful when biting the hand that feeds you. Danny O'Brien made the excellent point that it was the fans who kept the Doctor Who franchise alive during the 90s. Copyright owners should also finally understand that just because someone knits a Dalek or an Ood, they will still buy official merchandise.

This brings me to the wider question of fan art. The explosion of user-generated content tools means that it is easier than ever before to make one's own interpretation of a loved character, and to distribute it to the public. Creativity knows no copyright boundaries, and fans are likely to enhance and reinterpret works of popular culture in imaginative ways. Fan fiction, fan art, and mash-ups do not detract from the original work, they enhance the brand. The problem of fan art will not go away with angry cease-and-desist letters, it will only get worse.

Why then not recognise this in the law, and find ways of allowing legitimate non-commercial fan art? Lessig already suggested as much in Free Culture, and Creative Commons is part of a solution. However, it is extremely unlikely that large corporate owners will adopt CC in the near future, so perhaps other solutions are needed. I believe that fan licences are the way forward.

This is already taking place. Microsoft has created a Machinima licence with its Game Content Usage Rules, which allow fans to make derivative works of Xbox games as long as they are non-commercial. Blizzard has also created a Fansite Kit, which allows fans to download high-quality images for use on their own WoW sites. See, smart content owners know that the fans are their best marketing tool, why fight a futile battle against user-generated content, when you can make it work for you?

By the way, the name of that Dalek is "Extermiknit".

Doctor Who: Partners in Copyright Crime

The good people at the Open Rights Group forwarded me an email they received from a Doctor Who fan that goes by the screen name Mazzmatazz, who has allowed me to tell his/her story. But beware, this is a scary tale of copyright abuse that will have you hiding behind the sofa, or perhaps it will send you into a Whogasm.

Doctor Who series Four started a few weeks ago with the episode "Partners in Crime". The episode featured a new creature generated from human fat called, what else, the Adipose (pictured below). While I did not particularly like the episode, I reckon that the Adipose made a good showing, and will probably become a memorable Doctor Who creature (much better surely than the lovable yet ludicrous Abzorbaloff). The Adipose however, seem to me to be the Doctor Who equivalent of Ewoks - small and cute creatures which serve little purpose to the plot, and whose value seems to be mainly as merchandising fodder (I notice that others agree).

Enter Mazzmatazz. Mazz has a website featuring photography and knitting. In a display of amazing knitting talent (and dare I say, too much time on their hands), Mazz has been making knitting designs of Doctor Who characters; see for example, the excellent Ood. Under normal circumstances, a fan who makes knitting designs of loved TV characters should not be the concern of copyright owners. However, these are not normal circumstances. The new Doctor Who series is merchandising gold, so much so that the BBC has been climbing up the world merchandise chart. This may confuse people in and outside of the UK. The BBC is not a commercial enterprise, is it? We in the UK have to pay licensing fees (costing a whooping £139.50 GBP per year) to support public broadcasting, so why are the BBC relying so much on their merchandising?

This is a good time to get acquainted with how the BBC works. While the BBC in the UK is free of advertising and supported partially by the licensing fee, expensive quality programs such as Doctor Who and Torchwood require investment that goes above and beyond guaranteed funding through licence fees alone. The BBC therefore has an international commercial body called BBC Worldwide, which sells its valuable intellectual property to the world entertainment market. The wide success of titles such as Planet Earth and Doctor Who have pushed BBC Worldwide's sales to more than £800 million GBP, and merchandising is a key part of that strategy.

Where does our friend Mazz fit in this picture of corporate success? Well, it seems that the Adipose knitting designs have hit a greed nerve somewhere at the Beeb. While I have a copy of the entire communication between Mazz and the BBC, I will reproduce it partially because the emails come with a confidentiality disclaimer (although I must point out that I believe, as others do, that those email disclaimers are not even worth the bits they are written on). The cease-and-desist letter reads:

"We note that you are supplying DR WHO items, and using trade marks and copyright owned by BBC. You have not been given permission to use the DR WHO brand and we ask that you remove from your site any designs connected with DR WHO. Please reply acknowledging receipt of this email, and confirm that you will remove the DR WHO items as requested."

Interesting choice of words to say the least. Further communication continues to stress the point that Mazz's designs constitute unlicensed merchandise, and that BBC Worldwide has every right to stop others from distributing their property. However, Mazz is not selling merchandise, he/she is providing a knitting design to tell others how to make their own versions of the Adipose. While commercial exploitation has no bearing on whether there is copyright infringement, I think that it should be a huge consideration for BBC Worldwide when deciding to prosecute a fan who clearly loves the show.

What about the legal argument? Does the BBC have a case? On the face of it, the BBC would be correct in their assessment that Mazz is infringing their copyright. TV characters are protected by copyright, and all sorts of fan art would be found to be infringing. However, there is a growing body of literature on the subject of the uneasy interaction between fandom and copyright, as many authors turn a blind eye to non-commercial use of their characters online. Of course, when the work becomes commercial, they will take action.

However, Mazz's case is more complicated, as copyright is less clear about transformative art. Nobody would claim that Andy Warhol does not have copyright over his iconic Marilyn portrait, or his Campbell's Soup montages, even if they use other's IP. Similarly, there have been various cases where the mere transformation for artistic purposes from one medium to another was deemed to have enough originality to warrant its own copyright protection (see for example Alfred Bell v Catalda). However, copy too much and you might be found to be infringing, the prime example is Roger v Koons, pictured above. While U.S. cases seem to be moving against transformative copyright, the same cannot be said for case law here in the UK.

My first reaction when I read about Mazz's knitting case was that this was straightforward infringement, but something kept nagging me. I asked our resident copyright expert Charlotte Waelde, and she remembered some case law which blurs the picture even more. In King Features Syndicate v Kleeman [1941] AC 417, the defendant was accused of having copied cartoon strips depicting "Popeye the Sailor" and placing them in brooches and other media. Although the defendants lost, the issue of the independent design was explored. The Lords found that the figures could constitute designs as protected in the then Copyright Designs and Patents Act 1907. Another relevant case is Anacon v Environmental Research Technology [1994] FSR 659. This case has nothing to do with art, but with circuit design. In this case the defendants made a list of the components in a circuit and their interaction with one another, and then made a circuit on its own that looked completely different to the original. The defendants claimed that the their design was artistic, and therefore different. However, Jacob J found that the actual list was a literary work, and therefore it was subject to copyright protection as such. This is relevant to Mazz's design, as it proves that a knitting design is subject to its own protection, and that it may be dissimilar to the actual artistic depiction of the character. This issue was also explored in Sandman v Panasonic, where Pumfrey J astutely described the dichotomy between design and the item resulting from it to that of musical notation and the resulting tune. Each has its own type of protection.

In other words, I strongly believe that BBC Worldwide's claims are over-reaching. While there could be infringement, I submit the hypothesis that Mazz has done enough transformation to the Adipose character to claim copyright over their design.

The cease-and-desist letter also makes a claim on trade marks. I know next to nothing about this subject, but I would be extremely surprised if BBC Worldwide had managed to register the "Adipose" mark. I did a quick search in the UK-IPO Trade Mark database and I could not find it registered.

Concluding, the BBC may not have a straightforward case if they decide to sue, and they could very well lose. I also believe that they are misplacing their energies pursuing a fan who has done nothing more than to display their love to the show by making a highly original design. While commercial use is not relevant to the infringement case, it should be noted that Mazz was not selling the design, and had actually licensed it under a Creative Commons licence.

So, will the real Adipose please stand up?

Update: I have been dusting off my copyright textbooks looking for more cases relevant to this issue. The important question to me is whether a design arising from a character is an infringement. I have not found anything specifically, but generally copyright protects an original work in most changes of form (say, if a 3D sculpture is made of a 2D image). However, instructions to make things, such as knitting patterns and recipes, are protected only as literary or artistic works, therefore, the item produced from such instructions is not infringing the original design (see Bridgid Folley v Elliot [1982] RPC 433). I have not found a single case however that answers the question of whether there is infringement if the form of the protected character is changed into instructions. Anyone out in the blogosphere know of such a case? Again, Sandman v Panasonic is the closest analogy that I could find, but it is not an exact match.

Jail for priests over copyright infringement?

I was surprised to find this story on the front page of Saturday's Guardian because it shows the growing importance of copyright questions in the mainstream press. However, I was less impressed with the article's content. The headline tells us that "Polish priests threatened with jail for plagiarising sermons". Quite an impressive claim, and definitely a headline-grabbing topic. Plagiarising priests behind bars, it doesn't get any better than this, right?

Certainly, if the priests are lifting entire sermons from online sources, that is clearly copyright infringement, besides being morally dubious, and potentially a sin if one considers it as theft. However, nowhere in the text of the article there is evidence for the claim that the plagiarising clergy will be thrown into jail. Copyright infringement is mostly enforced through civil remedies, and very rarely there are criminal implications for casual copiers. So, maybe Polish copyright law is different? Polish copyright law punishes with two years of imprisonment for two years for "any person who usurps the authorship or misleads as to the authorship of all or part of the work or performance of another..." So in theory it is possible, but this does not seem like something that would be enforced.