Posts Tagged ‘Copyright’

Aaron Swartz’s MIT Mega-Download: Computer Crime, or Mere Copyright Infringement?

Demand Progress founder and “Internet activist” Aaron Swartz was recently indicted on a number of federal charges including wire fraud and computer fraud, reports the New York Times. The charges stem from Swartz’s use of MIT computer networks to download a huge quantity of scholarly articles from online academic journal repository JSTOR.

Swartz also received attention in 2009 for downloading a huge quantity of US court records from PACER, the federal court system’s public case records system. PACER has received a great deal of criticism because it charges fees for downloads, even though the court filings contained within are in the public domain. Swartz’s project aimed to provide access to a significant portion of these documents outside of the confines of PACER. Taking advantage of a pilot program allowing free trials of PACER at some public libraries, Swartz wrote a Perl script that allowed him to download nearly 20 million court documents – an act that got him investigated by the FBI.

Now the feds are after Swartz again, and this time it’s serious.

Swartz’s new indictment is available on Scribd. The government’s theory of the case is that Swartz committed wire fraud and computer fraud by “access[ing] a protected computer — namely, a computer on MIT’s network and a computer on JSTOR’s network — without authorization and in excess of authorized access, and [fraudulently] obtain[ing] things of value” – the academic journal articles. Additionally, the government charges Swartz unlawfully obtained information from a protected computer by “obtain[ing] from a protected computer information whose value exceeded $5,000″ – again, the journal articles – and recklessly causing damage to MIT’s computers.

The first problem with this theory is that, from the facts, MIT’s network is obviously open to at least some downloading of articles from JSTOR by guests on MIT’s premises. Swartz mightily abused these privileges, most seriously by plugging his computer into a router in a closet at MIT in order to circumvent attempts to block his laptop’s IP and/or MAC identifier. (The indictment’s account of what Swartz actually did in the closet is somewhat murky.) However, given that Swartz was using a network that allows guest access, it seems this act was more obviously literal trespassing than computer trespassing. Swartz was in a closet he presumably wasn’t allowed to be in, but when he connected his computer to that router, it appears from the indictment he was obtaining the exact same kind of access that would have been available to other guest users at MIT – access to academic journals. No rootkit access, no superuser privileges – just regular old guest user status.

The second problem with this theory is that the “information” and/or “data” Swartz downloaded is published academic research. The articles in question, and the information contained within them, are anything but secret or proprietary – they can be easily accessed at any academic library with print or online journal subscriptions.

More importantly, the idea that the articles are “information whose value exceeded $5,000″ is extremely problematic. Why? Copyright law.

JSTOR doesn’t sell academic journals to universities. It sells easy access to academic journals to universities. The contents of those journals don’t belong to JSTOR – the rights to the research available through JSTOR are distributed among huge numbers of individual copyright holders, from the journals themselves to the authors and researchers to the universities which sponsored their research.

What’s more, Swartz obviously didn’t “steal” the articles – he simply reproduced them, and he did so for non-commercial purposes. The articles remained accessible on JSTOR. Swartz’s conduct looks far more like potential copyright infringement (a civil, not criminal, offense) than criminal behavior. And it might not even be copyright infringement, as each individual download of an academic article by Swartz would arguably fall under the “scholarship or research” provisions for fair use of copyrighted material of Section 107 of the Copyright Act.

Additionally, placing a dollar value on otherwise freely and publically circulated academic research is problematic. If it would cost a layman $5,000 to access those articles through JSTOR, but nothing to access them for free in a library, is the value of the articles really $5,000? Would it ever really cost an academic researcher like Swartz more than $5,000 to access those articles? If Swartz had stopped by MIT every day for five years, downloading copies of those articles a few at a time, would he still be facing these charges?

Swartz clearly exceeded his MIT network guest privileges, and obviously did something wrong in that closet, but conceiving of PDFs of widely available academic research as Wargames-style “secret computer data” seems to me to involve a serious misunderstanding of copyright law.

Your thoughts and comments are always appreciated.

Photo courtesy Fred Benenson.


Is Urban Outfitters Breaking the Law by Copying Designs?

Last week, jewelry designer Stephanie Koerner posted a blog post entitled “Not Cool, Urban Outfitters, Not Cool,” with pictures of her custom state-shaped jewelry and similar items recently spotted at Urban Outfitters.

The Village Voice followed with “Are Brooklyn Fashion Designers Being Ripped Off by Urban Outfitters?“, listing other alleged design thefts by UO, but concluding wistfully, “everyone steals from everyone, and if you have an original idea, there’s nothing you can do, because there’s someone out there … who will exploit your originality and leave you on the side of the road.”

(And, as is often the case, the comments thread in the Village Voice piece is full of people repeating incorrect information about copyright, including the old “poor man’s copyright” method and the idea that you have to federally register a copyright to “have a copyright” in a creative work).

UO struck back with a blog post identifying “several other sellers with similar products” and stating that “the idea is not unique to Koerner and she can in no way claim to be its originator.”

UO linked to a post on Regretsy entitled “Urban Outrage” which argues that Koerner was not the first person to create and sell the design in question, a silver state-shaped charm with a heart over the state’s capital.

Koerner’s first state charm sale (Ohio) allegedly came in April 2009, but at least one Etsy seller sold a similar design (California) in December 2008, and another online jewelry merchant sold a similar design (Texas) in May 2008. The Regretsy post also shows many similar designs being currently sold by competing Etsy sellers.

UO, however, conveniently leaves out that the Regretsy poster, far from vindicating UO, states, “[UO] certainly have a record of pilfering designs, and they may very well have stolen this one. The question, for me at least, is who did they steal it from? And if we don’t know that much, how do we know it’s really been stolen at all?”

This is closer to a real analysis. What’s the truth? Is Koerner out of luck? Did she steal the idea herself? If she had been the original creator, could she have pursued legal remedies against UO?


1) The level of creativity required to assert a copyright in a creative work is relatively low. The original creator of this design would be able to protect it. The fact that others widely borrowed it would not make it “generic.” There is no genericity analysis in copyright law.

2) Copyright infringement requires copying. If UO had truly hit upon this exact idea independently, without ever seeing a similar product, they would be protected. An infringement suit requires a showing of access to the infringed work, as well as a showing of substantial similarity.

3) The fact that another merchant sold a similar product online 18 months before Koerner did does not prove that Koerner stole her design from that merchant. Perhaps Koerner simply didn’t get her design onto the Internet until after that first merchant.

4) There may be a common ancestor from which all of these designers have borrowed this design. This doesn’t mean that UO is off the hook. It just means we are witnessing a long chain of copyright infringement! The originator of the design still might be able to pursue UO if he or she could prove that UO’s designers had seen their state charm, as well as Koerner’s, before creating UO’s version.

The ugly reality is that most small designers simply don’t have enough money to pursue a copyright infringement lawsuit to a verdict against a big company like UO. However, given that the financial penalties for copyright infringement are huge, a cease and desist letter might be worth it. If a big company is ripping you off, you might want to talk to a copyright lawyer (hi!) and explore your options.


Copyright Termination Plays a Role in Battle over Kerouac Estate termination, which allows a copyright owner or his/her heirs to terminate the license or transfer of a copyright, is currently a hot topic in copyright law, as we have discussed on prior occasions.

The details of copyright termination are complicated, but broadly, in order to address changes in the duration of copyright beginning with the 1978 Copyright Act, Congress created a right to regain control of pre-1978 copyrights after a set period of years (usually 56 years or 75 years, depending on when the original copyright was issued). As long as proper notice is provided to the licensee, the copyright will be restored to the original owner. For more information, read “Copyright Termination.”

The Create Protect blog reports that copyright termination issues played a strategic role in the ongoing battle over control of Jack Kerouac’s estate. Jan Kerouac, Kerouac’s daughter from his second marriage, was able to initially secure a portion of Kerouac’s estate after learning about copyright termination from John Steinbeck Jr. (note: I believe they mean John Steinbeck IV), Steinbeck’s son from his second marriage, who had been through his own battle with Steinbeck’s third wife for rights to Steinbeck’s work. (John Steinbeck IV died in 1991 and his children recently lost a years-long battle to terminate the assignment of the copyright in his works to the publisher Penguin).

Jan Kerouac died in 1996, but Kerouac’s last living relative, his nephew Paul Blake, recently won a ruling in court that Kerouac’s mother’s will, which transferred the bulk of his estate to Kerouac’s third wife, was forged.

Given the value of many pre-1978 copyrights, and the complicated family entanglements that exist among many artists’ heirs, these disputes will likely continue to proliferate in years to come.

For more on the contentious history of Kerouac’s estate, read “The battle for Jack Kerouac’s estate” in the Telegraph.

Image courtesy j/k_lolz.


Of Poetry, Punditry and Purported Put-Ons

In addition to my work here at 95years, I also write for a literary blog called We Who Are About to Die. Yesterday at WWAATD, I wrote about a poet, Kent Johnson, who has written a book of criticism making the strange claim that the famous poet Kenneth Koch wrote one of his friend Frank O’Hara’s most famous poems. Koch’s estate was not amused and sent Johnson’s publisher an oblique letter calling the book’s thesis a “malicious hoax” and threatening a lawsuit. If you’re interested, read my post analyzing the legal issues potentially raised in the letter here. Hopefully I’ll have another chance to comment upon the situation once new facts come to light.


Composer Busts Teen for Sheet Music Sharing: Moral Victory or Total Waste of Time?

I’m late to this party, but the Internet has been abuzz about a blog post by the musical theater composer Jason Robert Brown in which he relates the frustrating experience of trying to convince people to stop trading his sheet music on a sheet music trading site (if you didn’t know such sites existed, now you do). He received positive responses from many traders, but resistance from others, in particular a teenager named Eleanor. A selection from their email exchange follows.


…you’re offering several of my songs and scores for “trade” on this website. I’d appreciate it if you wouldn’t do that, since it affects my livelihood considerably when people can get free copies of my work from strangers and I don’t get anything in return. I’m glad you like my songs and I hope you’ll keep playing and singing them, but please don’t “trade” them on the Internet, especially with people you don’t know.


…Why are you doing this? I just searched you on this site and all of the stuff that people have of yours up there say that it’s “Not for Trade Per Composer’s Request.” Did you think about the aspiring actors and actresses who really need some good sheet music? … a lot of people who would love to have [Brown's] sheet music can’t afford it. Thus the term “starving artist.” Performers really need quick and easy ways to attain good sheet music and you’re stopping a lot of people from getting what they need. It matters a great deal to them that they can get it for free. Why does it matter so much to you that they don’t?

Eleanor also states that she can’t buy his music because she doesn’t have a credit card and can’t use her parents’ card, and says that she should be able to download Brown’s sheet music for free because she might expose other people to it, winning Brown new fans and securing greater royalties for Brown down the road. Brown says that the same result would be achieved by the legal purchase of his music.

After being asked by Eleanor why he is not “supporting the theater community” and why he is “doing this,” Brown explains his motivation:

…I think it’s annoying and obnoxious that people think they’re entitled to get the sheet music to my songs for free, and I’d like to make those people (you, for example) conscious of the immorality, illegality, and unfairness of their behavior…. You assume that because a good thing comes from an illegal act, it’s therefore mitigated. That’s nonsense. I’m glad people want to sing my songs, and I’m glad that when other people hear them, they enjoy them – that doesn’t mean I surrender my right to get paid for providing the sheet music.


I’m not saying that you’re not somewhat right in the way you’re thinking, but you’re also defiantly wrong. Would it be wrong for me to make a copy of some sheet music and give it to a close friend of mine for an audition? Of course not. In fact, it would be considered nasty of me to refuse. But to trade sheet music online is bad? This website is not even technically illegal. Since the music is never actually uploaded onto the site and is sent via email from one user to another, I’m breaking no law by participating in it. You think I don’t look this stuff up?

…I never said that it was an amazing thing happening and I never said that it doesn’t start with what I’m sure seems to you as a bad thing. I “assume that because a good thing comes from an illegal act, it’s therefore mitigated”? Well, I have just explained that it is not illegal, so we will leave that alone. Yes. I assume that because something that good comes from something so insignificantly negative, it’s therefore mitigated.

Brown concludes with a lengthy explanation of his position and his understanding of copyright law:

[J]ust because technology makes doing a bad thing easier doesn’t mean it’s suddenly not a bad thing…. The way I get paid is that people buy the work that I do, and I get a percentage of that money – other percentages go to the publishers, the bookstores, the theaters, the actors, the typesetters, the copyists, the musicians, the designers, the operators, even the libraries since the government takes a piece and that’s how it funds everything you rely on in your everyday life. You think you’re entitled to deny all of those people their rightful share of the work they do. I don’t understand why you think that.

…[I]t is your responsibility as a citizen, as a member of the theatrical community, and as a considerate human being to pay attention to the laws, ethics and customs that make it possible for you to do the thing you love…

I’m sorry if you still think I’m a jerk, but what I’m talking about here is not “insignificant.” The entire record business is in free-fall because people no longer feel the moral responsibility to buy music…. All of us who write music for the theater are very much concerned that the sheet music business will eventually go the same way as the record business. I’m doing my little part to keep that from happening.

Brown then posted the exchange on his blog and received over a hundred comments, many calling him an out-of-date, doomed dinosaur and many others expressing the “everything should be available for free downloading always” viewpoint common on tech media sites. A blog called Digital Society then used Brown’s post as a jumping-off point to attack many common pro-copying arguments from a rightsholder perspective.

Although I haven’t included many of them here, most of Brown’s arguments are moral ones. He thinks it’s morally wrong to engage in file-sharing because it’s tantamount to stealing. He also makes a few practical business arguments, including that file-sharing will hurt the financial interests of the musical theater community. He also offers a few legal arguments, explaining his understanding of fair use and directing Eleanor to Wikipedia to read up on copyright law.

The problem with Brown’s arguments is that they’re all easily refuted with some popular counterargument. Eleanor’s moral and business counterarguments are utilitarian: copying harms the composer but benefits others in the community, and exposure stemming from illegal copying will result in greater sales somewhere down the line. Her legal argument is simply that her conduct is not technically illegal. Of course, she might be wrong, but she has no incentive to find out, so she feels happy about her response. The availability of these common counterarguments allows her to remain secure in her belief that what she’s doing isn’t wrong.

Brown overlooks several arguments that might have carried greater weight. He doesn’t argue that it violates the norms of the musical theater community to copy music and that her reputation will be damaged by engaging in such conduct. And he doesn’t argue that the penalties for violating copyright law are severe or explain to her why her conduct is illegal.

Brown also seems to think that copyright has a moral component which comports with his general sense that copying is stealing. In fact, the stated purpose of copyright in the United States is a practical one: “to promote the progress of science and the useful arts.” Copyright is a means to an end. It has a specific stated purpose: adding to our country’s store of knowledge.

Worst of all, though, while Brown goes back and forth with a teenager about the philosophical implications of her Internet behavior, he is staring a lost business opportunity in the face. She specifically says that she is a fan of his but that she can’t purchase his sheet music from an online retailer because she doesn’t have a credit card. He responds, effectively, “tough luck,” because he wants to educate her that what she’s doing is morally wrong. Of course, while educating this hapless teen, he could also have been:

Brown’s mistakes support my general impression that creators who think practically, not philosophically, about digital copying do the best job of adapting to the digital environment of the 21st century. Brown expends a great deal of effort mulling over the moral, philosophical, and economic issues associated with unauthorized digital copying. Meanwhile, some competitor of Brown’s is treating it like a business problem… and fixing it. Given the choice, which do you think would be a better use of Brown’s time:

I hate to be crass about someone’s art, but Brown’s not really talking about art. He’s talking about the mechanics of selling copies of his art on the Internet. Brown, and artists like him, ought to spend a little less time on Wikipedia or and a little more time surfing CDBaby, Lulu or Etsy.


YouTube News: Content Providers Trade Takedowns for a Piece of the Action

The New York Times reports that Hollywood studios and other big content providers are no longer leaping to send DMCA takedown notices when John Q. Infringer posts a hilarious clip from Good Luck Chuck. Sensibly, they’re letting YouTube keep the clips up in exchange for a chunk of ad revenue. YouTube benefits too — the Google subsidiary’s revenues are way up and the site is nearing profitability for the first time.

Google’s CEO Eric Schmidt on YouTube’s strategy:

The strategy had been to amass “an audience first, then figure out the tools that will create the revenue, then you go to the content partners and say, ‘Hey, look guys,’ ” Mr. Schmidt said. “And I think we’re at that point now.”

Hey, wasn’t that pretty much what Viacom alleged YouTube’s strategy to be in its failed billion-dollar lawsuit against YouTube? Also, doesn’t Google’s evident ability to find copyrighted user-posted content on YouTube, slap ads on it, then find the copyright owner in order give it a share of the ad revenue undermine Google’s argument in that same lawsuit that it couldn’t be expected to monitor user-posted content to that degree? I suppose it’s a moot point, since the U.S. District Court for the Southern District of New York, ruling in favor of YouTube/Google, said that the DMCA didn’t impose that level of responsibility on YouTube and that YouTube’s demonstrated ability to comply with massive takedown notices from Viacom proved the DMCA’s notice-and-takedown scheme works just fine to control infringement.

In terms slightly less polite than Schmidt’s, Google’s copyright strategy has often involved taking hold of other people’s content, finding an audience for it, and then saying to the copyright owner, “Hey, we’ve just found an audience for your content, do you want to file suit against the eight-hundred-pound gorilla of the Internet, or do you want to work with us to monetize this opportunity?” It’s a risky strategy but it makes practical sense, and, as seen here, it can produce wins for everyone involved.

Another Google product/division which I expect to eventually take this road is Google Books. I’ll be very surprised if, after digitizing all those millions of books, they don’t create an  opt-in e-book program or cut deals with copyright holders to insert ads into the samples already available online.

Thanks to @THEMIGHTYTRINI for the tip.


Las Vegas Newspaper Continues to Sue Bloggers Into Submission

As we’ve reported before, the Las Vegas Review-Journal has become quite aggressive in its approach to copyright enforcement. It assigns rights to a firm called Righthaven, which then sues the alleged infringers. An article in Vegas Seven explores the controversy in greater depth. A communications professor calls Righthaven’s pattern of suing without issuing cease-and-desist letters or takedown notices “legal but sleazy.” Righthaven’s CEO responds that his company could not “get compensated in an appropriate way… if all we did was send out takedown letters like a charitable organization.”

Wired is covering the Righthaven story as well, reporting that, as many suspected, the Review-Journal and Righthaven are pursuing these suits not as a means of protecting the value of the Review-Journal’s work but in order to create a separate revenue stream from settlements. One Righthaven defendant states in the article that the allegedly infringing material on his site was posted by a user, entitling him to a takedown notice prior to suit under the DMCA, but that no such notice was issued.

Meanwhile, the Blog Law Blog (great blog name and subject matter!) reports that Righthaven sued Anthony Curtis, editor of the Las Vegas Advisor, for reposting a Las Vegas Review-Journal article that was written about Curtis and a survey he conducted of Las Vegas entertainment ticket prices. Back in the pre-Internet era, this was known as saving your press clippings. Today, it’s potential lawsuit fodder, it seems. Read more at the Daily Online Examiner.

Techdirt offers more coverage under the blunt headline “Righthaven Ramping Up its Copyright Trolling Business.”


ACTA: The Little International “Anti-Counterfeiting” Treaty That is Scaring the Pants Off People Everywhere

The Anti-Counterfeiting Trade Agreement (ACTA) is a new international treaty supposedly targeted at counterfeiters. However, supporters of liberalization of copyright law have been expressing serious concern that ACTA has become another vehicle for BigCopyright (Disney and its ilk) to impose more stringent copyright restrictions on the United States, among other countries. It doesn’t help that the ACTA drafting process has been secret, and a draft was just released to the public in April, after a significant period of negotiation.

The Electronic Frontier Foundation has been expressing alarm about ACTA for years. Meanwhile, President Obama has repeatedly stated his support for ACTA.

This past week, Ray Dowd at the Copyright Litigation Blog read the text of ACTA and had this to say: “I thought that I would find the concerns I’d seen floating around the internet to be a little overblown. In fact, I think that the concerns of the EFF are understated. . . . [T]he text appears to be so one-sided as to appear to have been spoonfed by certain aggressive Hollywood rights-holders who don’t think anyone can make fun of Mickey Mouse and that anyone crossing a border should be frisked for a fake Louis Vuitton handbag.”

Similarly, Techdirt says that while the ACTA draft does not codify the “three strikes” approach (read: banning repeat infringers from the Internet entirely) being bandied about in European countries, including the UK, the draft apparently states that Internet service providers must have policies to deal with infringing works in order to have access to “safe harbor” protection under ACTA, and the given example of such a policy is termination of repeat infringers – the foundation of the “three strikes” approach.

Additionally, Techdirt reports that the ACTA draft would export the sort of notice-and-takedown regime, part of the safe harbor provisions already codified in US copyright law in the Digital Millennium Copyright Act, to the rest of the world, despite the fact that these provisions allow action against alleged infringers without proof of actual infringement, and are widely abused in practice.

One more reason to worry about ACTA: Andrew Moshirnia of the Citizen Media Law Project reports that the EU has proposed adding third-party criminal liability to ACTA. In other words, parties who aren’t themselves infringers but who engage in acts of “inciting, abetting and aiding” infringement might be subject to criminal penalties. Moshirnia says:

First off, this seems to criminalize most Internet . . . everything. . . . Second, this would clearly change United States law, something that the supporters of ACTA have claimed that the agreement would not do. . . . Third, introducing criminal penalties to a volatile field like intellectual property is a recipe for disaster.

Are you nervous yet?

Image: The above photo is a 2005 shot from Flickr user bsdfm, who writes: “The label reads: =if(Label=”",”RMA”,”?”) This is an Excel function. It also would work in Microsoft Access. The factory is using Excel or Access to store all the logos for the different jeans they make and then print them onto leather. This is what happens when there is a bug in their software. Chatuchak market, Krung Thep, Bangkok, Thailand.”


Timbaland Shells Out for “Spazz” Sample; More Copyright News

Timbaland just settled a copyright infringement lawsuit alleging unauthorized use of a sample of 1960s garage band the Elastik Band (pictured)’s “Spazz.” Did you know the 2007 controversy over Timbaland’s alleged misappropriation of a Scandinavian chiptune artist’s work has its own Wikipedia page?

In 2013, copyright holders will begin to be able to exercise their rights to cancel assignments of rights under the 1976 Copyright Act. Music labels have been quietly gritting their teeth about this for years now, and the industry’s anxiety level is only going to increase.

Yahoo, Facebook and eBay are all on Youtube’s side in its court battle with Viacom. In related news, court documents reveal that the two nearly settled all infringement claims through a licensing deal which would have netted Viacom close to $600 million; Viacom pushed for $700 million and the deal fell apart.

Why do politicians keep using unlicensed music in their commercials? Arguably, because such uses amount to fair use, given that they’re supposedly non-commercial. Of course, it could also be because political commercials don’t run for very long and they think they won’t be caught. What do you think?


Media and Copyright Law News Roundup

Righthaven LLC, the holding company which has been obtaining the copyrights to Las Vegas Review-Journal articles and suing alleged infringers, just filed its fourteenth copyright infringement suit, this time against a sports betting website, for reprinting Review-Journal articles without permission.

Lawyers for the Associated Press argue in the National Law Journal that the holding in Barclays Capital Inc. v., No. 06 Civ. 4908, 2010 WL 1005160 (S.D.N.Y. March 18, 2010), a recent case in which the U.S. District Court for the Southern District of New York held that news organizations have a duty to police against appropriation of their reporting in order to recover under the “hot news” theory of infringement, unwisely undermines newsgathering incentives.  (The “hot news” doctrine is a sort of cousin of copyright which allows gatherers of time-sensitive information to prevent competitors from free-riding on their labor.)

Wired reports that copyright lawsuits plunged nationwide in 2009, after the RIAA’s abandonment of its “sue ‘em all” litigation strategy, which it pursued from 2005 to 2008.