February 26, 2005

Ward Churchill: Copyright Infringer

University of Colorado Professor Ward Churchill has been in the news lately following his publication of an essay calling the victims of the 9/11 attacks “little Eichmanns.”

Professor Churchill apparently produces serigraphs in addition to his “scholarly” output. And one of these serigraphs, the 1980 work “Winter Attack,” is a fairly blatant copy of a 1972 drawing by Thomas E. Mails. So Churchill is an infringer. An interesting sidelight on the controversy, perhaps, but nothing gripping.

Then a local TV news reporter from Denver ambushed Churchill at his office, attempting to ask him questions about the similarities between the works. And Churchill slugged him, on video. (A full report can be found on the TV station’s site here. Be sure to watch the video. It’s really something.)

To paraphrase Donna Wentworth, that’s what I call a copyfight.

Is it infringement? Um, yes. He made a near-verbatim copy of the whole work, and has no real fair use claim. His only prayer would be a claim that the original work is uncopyrightable because it is made up entirely of scenes à faire, though that would likely fail.

Interestingly, it appears that at least one other Churchill work was also plagiarized, though in this case the source work is in the public domain, so there’s no infringement.

Via Copyfight and Michelle Malkin

Atrocious Pun

I took the BAR/BRI review course for the Multistate Professional Responsibility Exam this morning. Their materials include a very prominent copyright notice, warning against any sort of reproduction of either the video or the written materials.

Apparently, they’re worried about BAR/BRI pirates.

Have you been unable to find the copyright holder of a work you wanted to use, but still couldn’t use it because somebody, somewhere might sue you? The United States Copyright Office wants to hear from you. Visit to submit your story.

(I’m lending the domain to the EFF and PK for this important campaign.)

February 25, 2005

ALA President Attacks Bloggers

Michael Gorman, President-Elect of the American Library Association, wrote this column in Library Journal attacking bloggers. His ire is understandable, if misplaced; he apparently received vitriolic reviews of this Op-Ed [PDF] in the L.A. Times in which he questions the utility of Google’s planned digitization of hundreds of throusands of books.

But reading his Library Journal column, it sounds as if a blogger killed his brother.

First, he persists throughout the column in making fun of the word “blog”. Yes, it’s a silly word; Yes, it is an ugly word; Yes, it sounds like some creature from a “B” movie; No, most people don’t think it sounds strange anymore. Gorman succeeds only in seeming out-of-touch by making tired “Creature From The Blog Lagoon” jokes.

Second, and most unfairly, he lumps all bloggers together: they are all members of the great “unpublishable, untrammeled by editors or the rules of grammar.” I take umbrage, and so, I suspect, would Jack Balkin, Cory Doctorow, Larry Lessig, and Richard Posner, among many others. Are some blogs poorly spelled, poorly punctuated, and poorly thought-out? Certainly. But adolescent rantings and personal journals don’t reflect the blogosphere at its most scholarly, nor should they. While blogging is not exclusively a scholarly pursuit, some scholars find it furthers their work.

The most striking thing about the column, though, is how unused to receiving unthinking criticism Gorman seems. As president of a large organization with a stake in many substantial national debates, I hope Mr. Gorman gets used to it soon. Perhaps the reaction to his L.A. Times piece served as a useful practice round.

February 24, 2005

Scary Stuff from the WIPO Secretariat

Jamie Love of the Consumer Project on Technology made this post to the Access to Knowledge listserv yesterday. David Tannenbaum comments here.

In short, WIPO intends to exclude all groups that do not have permanent observer status from its upcoming Development Agenda meetings in Geneva. Speaking broadly, this means that rights-holders’ groups will be well-represented, while upstart civil society groups like CPTech, IP Justice, and the Union for the Public Domain will be excluded. Happily, the EFF has permanent observer status, so Cory will be there.

The operation of NGOs like WIPO is not my area of expertise, but it seems that this indicates a desire on the part of the Secretariat to sacrifice the appearance of transparency and balance in order to avoid any risk that developing nations will adopt substantially weaker IP laws than those in developed nations.

LokiTorrent Lawsuit: No Hoax

There’s a Slashdot story today linking to a claim that the recent lawsuit against LokiTorrent is a hoax. The author bases his claim on the fact that the current LokiTorrent page is hosted by the defendant, not by the MPAA, and claims to have searched court records and found nothing.

Three minutes on PACER and the “mystery” is solved. It’s case number 3:04-cv-02642 in the Northern District of Texas. Yes, that’s the signature of the MPAA’s lawyer on the Complaint filed with the court. And yes, that’s United States District Judge David C. Godbey‘s signature on the order approving the parties’ settlement and entering a permanent injunction against Webber.

Webber may be a scammer, having seemingly run off with the contributions to his legal defense fund after an immediate capitulation to the MPAA, but he’s not making the whole thing up.

February 18, 2005

Great Footnote

I’m reading Rebecca Tushnet’s recent article in the Yale Law Journal, Steal This Article. She notes the First Amendment expressive quality of the creation of a mix CD, and drops this wonderful footnote:

39. See infra Subsection III.B.1; see also Robert Lopez & Jeff Marx, Mix Tape, on Avenue Q: Original Broadway Cast Recording (RCA Victor Records 2003) (“Sometimes when someone / Has a crush on you / They’ll make you a mix tape / To give you a clue.”); Semisonic, Singing in My Sleep, on Feeling Strangely Fine (MCA 1998) (“Got your tape and it changed my mind / Heard your voice in between the lines / . . . / Now I’m falling in love too fast / With you or the songs you chose / . . . / I’ve been living in your cassette / It’s the modern equivalent / Singing up to a Capulet / On a balcony in your mind.”).

Perhaps this will finally convince the Blue Book editors to include the signal “hear”, which Jim Chen has been using for years for citations to auditory authorities. See, e.g., Jim Chen, Rational Basis Revue, 17 Const. Comm. 447 (2001).

Good Fences Make Good Neighbors

It’s fairly common for music-related programs and devices to be named after musical terms. Electronics manufacturer Entempo has just come out with a new player called the Rubato.

One wonders whether they’ll be charged with selling stolen goods.

February 17, 2005

Internet-Only Album Wins Grammy

Maria Schneider, the jazz composer and arranger who created and released her last album solely on the internet through ArtistShare (which I discussed here), won the 2004 Grammy for Best Large Jazz Ensemble Album for “Concert in the Garden”.

This is fantastic, of course; it’s a brilliant album, and Schneider deserves recognition. But I don’t know whether it has implications for the mainstream acceptance of artists who come to prominence via the internet. Schneider was well-known in the genre before she started the ArtistShare project; this is more like Natalie Merchant going independent than like a new artist getting discovered and rising to prominence via the internet.

If only all independent musicians releasing web-only albums were mentored by Gil Evans.

February 16, 2005

ASCAP Licenses Podcasting; Doesn’t Get Podcasting

So ASCAP is issuing licenses for certain uses of music in “pod-casts”. A podcast is a downloadable, radio-style program that listeners can enjoy at their leisure. (Here are two particularly excellent examples.) Importantly, podcasts are intended to be downloaded in their entirety then listened to, not streamed in real time.

Wil Wheaton expressed extreme frustration with this, finding it inconceivable that composers would want to be compensated for the use of their works in a podcast given the promotional value of such use. He asks:

Do I understand this correctly? If I love a band (let’s pick The Shins, because that’s what iTunes is playing right now) and want to share a great song (New Slang, for instance) to a large audience in my podcast, and talk about how much I love the album, and encourage all the listeners to go buy it . . . I have to *pay* ASCAP for the privilege? I have to *pay* them for exposing an enormous audience to the music? An enormous audience who may want to *buy the fucking record*?!

Simultaneously most importantly and least importantly, “New Slang” and all the other Shins tunes are licensed by BMI, not ASCAP. An ASCAP license will do you no good at all.

But there’s a more important reason an ASCAP license for your podcast is worthless. ASCAP members grant ASCAP the right to license their works for “non-dramatic public performance”, and nothing else. And the license they offer for “pod-casting” grants only the right to make performances by way of internet transmissions.

Podcasting is not performance; it’s the making of a physical copy. Podcasters know and intend that end-users will download the material to their iPods and listen to them in the car. I suspect that the inclusion of “pod-casting” in the description of the licensed activities springs from a misunderstanding of podcasting; they think it’s just a transmission, like webcasting, and it isn’t.

And even if ASCAP really, truly understood and intended to license podcasts, and they wrote it into the contract, it still wouldn’t make any difference. They’d be exceeding the scope of their authority as an agent, and that provision of the contract would be unenforceable.

This is not to say that we shouldn’t find some convenient way to license podcasts, just that ASCAP won’t help (absent a statutory redefinition of “performance”).

Disclaimer Haiku:
West wind seems to say,
"This is not legal advice;
I'm not your lawyer."

(And if you're a client with whom I have a preexisting attorney-client relationship, this still isn't legal advice.)

In case you're wondering, this blog is also not intended as advertising, as a representation of anything but my personal opinion, or as an offer of representation.

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