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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

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 OrphanWorks.org to submit your story.

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

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.

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.

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.

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).

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.

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.

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”).

Effern of The Vision Thing has posted this podcast on copyright issues. He interviews Dr. Alan Wexelblat of Copyfight, David Bollier of OnTheCommons.org, and me.

Thanks to Effern for putting together such an interesting program. I had a lot of fun.

Arthur Miller died last night.

If this were an action for a declaratory judgment that defendants were adolescent pranksters who ought to put their reverse engineering skill to better use, I’d file an amicus brief supporting plaintiffs.

But, sadly, it’s not.

Xbox game publisher Tecmo, maker of “sports” game Dead or Alive: Xtreme Beach Volleyball, has sued over the posting of instructions for modifying the game to remove the athletes’ swimsuits. I’ve downloaded the complaint from PACER and posted it here.

Various tinkerers and enthusiasts have written software that allows users to modify the appearance of characters in the game. Amateur artists create and post “skins” for the various characters, often placing them in a costume or showing them without their swimsuits. (A quick look at cached posts from the ninjahacker.net site that gave rise to the lawsuit shows “Sexy Cowgirl” and “French Maid” outfits for the volleyball players, in addition to a variety of nude skins.) Since the point of the game seems to be to admire computer-generated cheesecake, it’s not surprising that some would seek a less-clothed game playing experience.

This really shouldn’t be actionable. You need to have a copy of the game in order to make use of the “patches”, and Tecmo doesn’t (and couldn’t) sell their own add-on costume packs with which the defendants here would be competing.

I think the unfair competition, passing off, and DMCA claims are weak; everybody’s clear on who made the patches, and the illegal circumvention is the installation of the mod chip, not patching the code you access thereafter. And the contributory copyright infringement claim against the operator of the message board depends heavily on facts that I don’t know, and that were pleaded very generally. But, under the existing precedents, Tecmo probably has a good case on the direct copyright infringement claim.

The patches and the new skins for characters are derivative works of Tecmo’s copyrighted work. They copy portions of the copyrighted work, changing some things; that’s as derivative as you get. This is analogous to (but well beyond) the conduct of defendants in Microstar v. Formgen, 154 F.3d 1107 (9th Cir. 1998). In that case, the court held that making and distributing new levels for Duke Nukem 3D was actionable because the new levels were derivative works of the game. This case is even less likely to be found to be fair use because instead of making new characters, defendants are distributing copies of Tecmo’s characters that they have modified.

Now, perhaps the Seventh Circuit, on appeal, won’t adopt the result in Formgen, but the defendants are likely to have a hard time. I hope they get good lawyers.

My cable modem provider, Time Warner Cable, has increased the downstream bandwidth on all of their customers’ modems to 5 mbps.

I’m reminded of the anti-smoking posters that have gone up all over campus on which a man wonders why he makes little quotation marks with his fingers when he says he’s “in control” of his smoking. Yes, home users really need three and a half T1 lines’ worth of bandwidth each to “visit websites” and “receive large email attachments” and “download music from iTunes Music Store”.

I’m just happy I’m getting downloads from archive.org at 500+K per second. I just wish they’d give us more than 384kbps upstream; tossing photos up on the web and uploading big attachments via Gmail still actually takes appreciable amounts of time.

The Senate unanimously passed the Family Entertainment and Copyright Act of 2005 today. It’s expected to move through the House with similar speed. This version makes three changes to existing law:

• It makes it a crime to videotape movies in a movie theater.
• It makes clear that using devices or services that automatically skip sections of motion pictures aren’t infringements, so long as no fixed copy of the resulting edited work is created.
• It renews funding for film preservation.
• It fixes a clerical error in the CTEA. They forgot to make an exception to an exclusion to an exception apply to a new exception they added. (You can see how this could get lost in the shuffle.) The upshot is that libraries can copy all types of works that aren’t commercially available during their last 20 years of protection, not just textual works.

Overall, it’s not a bad bill. I think it ought to be a crime to videotape movies in theaters. Yes, one can cook up a hypo in which this would trammel fair use — say, I want to use a clip from a movie in my review of it and it’s not out on DVD, so I go record a short clip of it in the theater with my camcorder. It’s fair use, and it’s a crime under this law. But that circumstance seems sufficiently remote that the benefits outweigh the costs. It would be nicer if it had been phrased to criminalize the making of infringing copies or transmissions, rather than the making of copies of copyrighted works, as this would have required a short trial-within-a-trial to determine whether the defendant’s use was privileged. But it’s not that bad.

Downhill Battle reports that series producer Blackside has threatened to sue a Vienna, VA schoolteacher planning to screen Eyes on the Prize as part of the Eyes on the Screen event. Michael Madison, asking, “Does anyone actually read the Copyright Act?”, points out that some public performances of audiovisual works by schoolteachers are explicitly allowed without a license. 17 U.S.C. § 110(1) says that the following is not an infringement of copyright:

performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction, unless, in the case of a motion picture or other audiovisual work, the performance, or the display of individual images, is given by means of a copy that was not lawfully made under this title, and that the person responsible for the performance knew or had reason to believe was not lawfully made

In this case, the teacher presumably planned to use a copy of Eyes on the Prize downloaded via Downhill Battle’s BitTorrent links. As the law stands, that’s an infringing copy, no matter what you or I or Downhill Battle think the law ought to be. The section 110 safe harbor for classroom showings only applies to legal copies; this was a prospective performance using an illegal copy, and simply didn’t fit into the exception.

There’s some question whether, in this case, the teacher had “reason to believe” her copy was infringing. Downhill Battle told him that they thought it was fair use, even though it’s not. After Blackside told the teacher the copy was infringing, this gave him reason to believe it’s an infringing copy, so the performance went from privileged to infringing.

Plus, there’s a substantial question as to whether a showing “for students and community members” is a showing “in the course of face-to-face teaching activities”. It seems some actual teaching would have to go on — which may have been the plan, we don’t know.

With due respect to Professor Madison, I don’t think the section 110 exception is likely to apply.

UPDATE: Nicholas Reville of Downhill Battle, below, notes that the school was using a lawfully made VHS copy. Obviously, this makes it much more likely that the section 110 exception applies. There’s still some question about whether the showing is a “face-to-face teaching activit[y]”, but that’s probably pretty easily surmounted; the teacher just has to make sure some face-to-face teaching goes on, most likely in the form of a post-film discussion.