Archive for the 'copyright' Category

Trouble with Sports Blogging

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A recent NYT article about sports blogging raises all sorts of questions relevant to our course. It seems that major sports franchises do not like having photos and video of their games posted online without seeing some money in return. As a result, major league baseball and the NFL have imposed specific limits on the amount of game images a given site can post in the name of news coverage. News outlets, bloggers and other fans of the First Amendment are understandably irked.

While the internet, and its capacity for easy video and photo publication, have created this conflict, it seems to me that the central legal issue predates the “web difference”: Are professional sports matches either (1) news events that reporters should be free to photograph, record and write about as much as they want, or (2) proprietary works “owned” by the league, which a reporter can’t justify recording and posting online any more than he could a live musical. The answer, of course, probably lies somewhere in between.

Either way, I think the leagues are approaching the issue in a terribly short-sighted way. Seems to me that any damage done to their bottom line by losing eyeballs to blogs and news outlets is dramatically outweighed by the positives that come with media attention. By exercising too tight a grip on coverage of their games, the leagues risk alienating the media, and ultimately their fans.

Another approach to deal with online piracy: three strikes and you’re out

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While the US music industry is exploring the option of imposing additional charges on broadband users, Europe is now discussing a totally new approach: banning errant users from using the web.

This approach still requires ISPs to be copyright cops by monitoring breaches of copyright and disconnecting recalcitrant privates. Of course this proposal has been met with vehement objection because of alleged breach of civil rights. It is interesting to see how the music industry in US is recognizing the immense difficulty of ISPs being copyright cops, while Europe (France is advancing this proposal) is still keen to place the burden of upholding copyright on ISPs.

Class notes infringe?

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In what sounds like an April Fool’s joke, there is now a claim that taking notes in class infringes on copyright. Of course, it’s more complex than that in this instance, as you can read at slashdot.

Warner is spearheading a plan to collect fees for unlimited access to music

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Warner Music is seriously thinking of implementing a plan to bundle a monthly fee into consumers’ internet-service bills for unlimited access to music.

This article states how the traditional concept of “music as a product” is evolving to “music as a service”. Warner thinks the best way to adapt to this new model is to build a pool of money and split it up, instead of trying to control the distribution and sharing of sound recordings. Apparently, Apple and Sony are also exploring new business models that will allow users to have unlimited access to their music library at a fee. It’s interesting that Warner has conceded that this collective licensing model is being explored because of “loss of control” by the recording industry. Shows how the music industry is now recognizing that it has to adapt to the web difference brought about by the growth of P2P sharing services.

Of course, critics state that Warner’s plan is essentially a ” tax”, and is inequitable (even amounting to extortion) since the fee is imposed regardless of users’ preferences.

My personal view: I prefer Apple or Sony’s plans to impose a fee only on those who wish to access their music libraries. Warner’s plan is useful in obtaining a sizeable pool of money and relieving ISPs of the burden of monitoring users. However, there should be some kind of distinction between broadband users who are interested in downloading music, and those who hardly engage in copyright-infringing behavior on the web. I am inclined to agree with the critics that a blanket fee is not equitable, and likely to be met with opposition. It’s as if the recording industry is choosing the easy way out by asking the public to compensate them for their failure to control copyright infringement.

Will Hulu kill the Net?

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This is an, ahem, provocative article that worries that the entertainment industry’s chosen vehicle for delivering content is going to be given preference over all else.

Slowtastic not as bad as nontastic?

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Interesting piece up on TechCrunch over the weekend about file sharing / net neutrality in Japan. Full story here. It seems that the four Japanese ISPs have made an agreement with copyright holders to warn users on their first “offense”, temp bans on a second offense, and at some point perma bans. Details are sketchy but more info is over at Torrent Freak.

Sure, having your file sharing uploads slowed isn’t fun (and there certainly are a lot of legal uses of protocols like BitTorrent) but having ISPs in the business of shutting down access for file sharing seems like an even more dangerous precedent on the net than a lack of packet neutrality.

Amazon/Google Plagiarism Checking

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To build on what I said in class, while no one seems to have suggested using the statistically improbable phrases tool on Amazon to check for plagiarism, people are using both Google Books and Amazon’s ‘search within this book’ tool for that purpose.

An article in Slate suggests Google Books could be used to discover long-existing plagiarism.

Similarly, another source suggests that Google Books and Amazon are the “greatest plagiarism detector ever created.”

Class 13: Ownership and Knowledge (sorry for the oversimplification and longevity)

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Can anyone “own” knowledge? Does the web make us think differently about the nature of ownership of information or expression?

Harvard’s Faculty of Arts and Sciences has passes a motion for Open Access to Scholarly Articles and Harvard Law School is considering a similar policy.

Junior faculty members consistently face the battle with tenure; the main requirement is to have an article published in a scholarly journal. Professors sometimes spend years waiting for an article to be published; one’s article must be accepted by a journal, peer reviewed and then published. Before being published an author must agree to a licensing agreement

Traditional Publishing Paradigm; author gives up copyright to journal

Stage 0: If the professor post working papers online. Most contracts restrict the author’s ability to direct students to working papers online. Well-accomplished journals will have contract that ensure that a previous work on the article cannot be made available author, but they are unable to control the SSRN.

Stage 1: Making of the License
Professor will give article along with rights to journal. In return author will receive intangible rewards including prestige and tenure.

Stage 2: Library buys article
Journal receives money from the library in return for a copy of the journal. Hardcopies are cheaper than online forms.

Stage 3: Professor 2 wants to use article for class
Journal receives money from the professor in return for allowing the professor to use it in his course pack.

Stage 4: Another author wants to put article in his book
Journal receives money from the author and the author is allowed to include the article in his or her book.

The traditional publishing paradigm benefits the journal much more than the professor. The market allows for the journals to conduct price discrimination. Journals are value added: they collect and present articles conveniently, have access to related work and know professor 2 in stage 3 for peer review. Faculty members have to pay for articles in stage 3 and are rarely allowed an allowance for their own article (Harvard Business School has recently allowed for authors to receive 100pdfs). While wealthy universities give allowances to their faculty for this purpose, sometimes students have to pay for the articles when buying for course packs. This is a case for journals ownership of knowledge.

University-Research relationship and Copyright law

Traditionally faculty is in work for hire contract. University split the money made off research, faculty remain happy and university will improve endowment and reputation. (Ex: Stanford benefiting from Google). As long as universities can assert rights from under copyright law, parties will usually bargain for a result that is beneficial for both parties. Although universities’ probably do not have rights to undergraduate work the line becomes fuzzy at the level of graduate work.

Open Access Grant Paradigm

Stage 1: License
Professor enters a contract with the university to grant licenses in return for the university giving the author access to the collection. University may make article open to the public. Old may still have control of the articles prior to Open access, but will not have exclusivity right to article not published under open access. All journals will have the same rights as before, but will reap less benefits then before

• Ex: FAS Open Access Agreement
o Nonexclusive (grant to as many people as the university wants and does not exclude journals)
o Worldwide
o Paid up (no additional consideration)
o Irrevocable (once the author contract with university: he or she may not take it back)
o Restriction on grant: right to distribute except for profit (exception under stage 3, where the professor uses an article in course pack)

Stage 2: Libraries
Libraries will continue to pay for journals, because they will be unable to receive the all the articles through open access. As open access grows, journals will receive less income from hard and soft copies.

Stage 3: Professor 2
Professor 2 will not longer be paying for open access articles in course packs

Scenario 1: Faulty may opt-out of Open Access under FAS and proposed HLS agreements

Some non-tenured professor may want to be published in elite distinguished articles and have the option to opt-out of open access. Deans want to keep their faculty happy and are glad to have there article published in elite journals A problem may arise if the dean does not want the article published in a particular journal. JP ask is this automatic waiver better and does this action violate the reasoning behind open access? Is the waiver better, because it saves on transaction cost? Is it easier for Harvard to take this stance because Harvard has prestige, that elite journals consider their value added.

Scenario 2: The effects of every faculty having open access

Will elite market-leading journals go out of business?

JP and class say no. Rather these journals will create a new business model. They may not be able to reap the benefits from owning the exclusive rights to articles, but they will still have exclusive rights to older articles. The Value Added that is intrinsic in journals remains: journals are a gateway and filter that separates the good from so-so articles through peer review. Elite journals may begin to compensate peer-reviewers, this may create overzealous reviewers and a push for more profitable work, but maintaining a good reputation of brand and of profession can combat these two pitfalls. A related example is CNN, Fox and MSNBC remaining in world full of bloggers. Although Carl Malamud is preparing a database the will put an end to companies profiting off of free government documents.  http://en.wikipedia.org/wiki/Carl_Malamu…). Another alternative suggested is for elite journals to create scarcity as it relates to the relationship; professors may only peer review for certain journals. (For more understanding of compensation read Fischer Chapter 6 alternative compensation system).

Scholarly Societies

Forces Societies to focus on receiving income from conferences rather than journal.

Open Access Grant Paradigm for Harvard Law School

The difference between FAS and HLS is that law journals are mostly student run.

Stage 1: License
Law Journals receive several variations on the amount of rights they receive. Some journals may have exclusivity right for a year. While other produce a hard copy, sell a soft copy to an online index and put up a free copy on their website. In return professors receive subciters and prestige. In addition both side receive the features above in Stage 1 of Open Access Grant Paradigm.

Stage 2: Libraries
Law Journals receive money from the libraries when they buy hard copies or buy a access to an online index. In addition both side receive the features above in Stage 2 of Open Access Grant Paradigm.

Stage 3: Prof 2
If a professor is not a member of the open access community and the university has not opened the article to the public, the rate of the article is set by the law journal and determine by size and scope of distribution
How Does Open Access Affect Law Journals?

Considering the fact that most law journals immediately put up a free online version following release, the affect is small. Law Journals can still sell to indexes, because they make it easier for customers to access more articles through archiving and creating classifications. Law Journals have other sources of income. (Example: Harvard Law Review and the Bluebook and other journals have sponsors)

Arguments Against Open Access and Questions Remaining (by JP and the class)
• Could seriously damage student journals
o Smaller and newer journals who make money strictly off of book sales
• Law Reviews may require professors to submit waiver along with article, therefore they will not accept some articles
• Irrevocable
o What if some publisher wants to put an article into a book that he will sell for profit, but will not include article if he cannot reap the benefit
• Is there a problem with professors deciding to opt-out
o Will professors be judged on decision?
• Why do we need Open Access if most law journals already have online?
o Is there a values in saying that we want information to be free, to encourage other fields to do the same
• Want a deposit of knowledge

Further Reading
Jean-Nicolas Druey, “Information Cannot be Owned.” (an argument for free information)
Open Access for HLS http://cyber.law.harvard.edu/scholaracce…

Brad Sucks’ surprises

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[This is what I posted on my personal blog:]

Brad Sucks came to Harvard this week and gave a performance-conversation and addressed the class I’m co-teaching with John Palfrey (blogged here and here). There were a few surprises.

What was not surprising was that Brad’s totally delightful, frank, and just a good guy.

First, he pronounces his last name (Turcotte) as Tur-COTT, not Tur-COAT. I stand corrected. Also, he likes his name written as “Brad Sucks,” not “BradSucks.” Sorry twice, Brad!

Second, especially during the class, I was struck by how different copyright looks to Brad than it looks to, well, lots of others. It’s not just that copyright protection looks to Brad like a limitation on how widely his music spreads and his musical career builds. Rather, it was how foreign copyright looks to him. From what he said, it seems like an imposition of an artificial construct place on top of the work.

Here’s what I think is happening, although I can’t say that this is what Brad is thinking. To people who think of music as a work, copyright looks like the natural boundary of their work, the ethical edge of their work itself. Others (Brad, maybe?) think of music not so much as a work as a shared experience, as a connection with listeners. For them, listening is co-creation. The work feels more like a performance to them. The concept of copyright doesn’t fit easily over such a view.

Third, Brad surprised both the class and the attendees at the performance-conversation with his claim that he is a “horrible capitalist” who gives his songs away for intensely practical reasons, not because he’s an anti-copyright activist.

Thanks for coming, Brad. And thanks for being so BradSucksy.

Old habits die hard – Performing rights may be extended in Europe

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It looks like the lobying in Europe to increase the term of protection for performing rights is starting to pay dividends:

The Commission wants to extend the copyright period for music performers from 50 years to 95 years.

British stars like Cliff Richard and Roger Daltrey have been pushing for such a move, but the UK government has resisted changing the rules.

The Commission says it will also benefit less well known musicians.

BBC News Story