Google plays hardball

Last May Google lost a lawsuit to the Belgian newspaper consortium, CopiePresse, over Google News linking to their newspaper stories without permission or compensation. Today they're firing back in a big way - by blocking all search results to the newspapers in question altogether.

Google claims they're only complying with a court order. CopiePresse claims they have no objection to having their stories referenced in search results; they only object to some of the content appearing in the Google News results and that Google is deliberately obscuring the difference between search results and copying content.

That's probably true, so some extent. But I've never found that Google News provides me with much more than the headline anyway; if I'm interested in a story, I still have to click through to read more than a sentence or two. So I've never understood the absolutist position that some newspapers take on this issue. It's free advertising! Imagine if movie studios tried to claim that tv stations should pay them for showing movie trailers? No, the fiscal incentives run the other way; studios pay tv to advertise their movies. Google is trying to prove to CopiePresse that the incentives do indeed run the other way and, because they're complaining about it, CopiePresse seems to secretly agree.

Pirates win

I've been keeping an eye out for this ruling and here it is: Men at Work have lost their appeal of a copyright infringement suit and must pay 5% of the all the royalties they have ever earned, or ever will earn, from their terrific song "Down Under," because it contained a 2-bar riff from the children's song "Kookaburra." In the name of promoting creativity, an Australian court is now punishing a remarkably creative work by transferring a huge sum of money from the creative people to the non-creators who did nothing but purchase privileges. This is not what copyright is supposed to be about.

Nose cut off, face effectively spited

It's true that legitimate copyright has become ever more challenging to defend these days, as almost anything can be digitized and instantly transmitted anywhere.* It's also the case that copyright is being used to exert more control over information than anyone is legally entitled to.

And then, sometimes the confusion and fear over copyright lead to just bizarre, self-defeating CYA types of actions. Such as Barnes and Noble preventing their customers from providing them with free advertising, when the customers tried to photograph and tweet a book display.

The blogger has a couple of things wrong here, actually. You don't have to register your creation to gain copyright protection; copyright is automatic at the time of creation and has been for many years. And I don't think B&N is claiming copyright over the arrangement of their book display. More likely they're worried that they could be sued as an accessory to reproducing the copyrightable artwork of the covers.

But while the latter might be technically true, it only shows how ridiculous the protectionist regime has become. It was an offer free advertising! Not just for the store and company, but for the authors and publishers! You spend a fortune to advertise your store and its wares, and then someone offers to do it for free! It's win-win -- except that it's not, because the bookseller has come down with copyphobia, which often leads to impaired judgment and self-destructive behavior. Very sad, and modern medicine has not yet discovered a cure.



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* So far, not pizza yet. But someday.

What Would Gandalf Do?

Oh, oh. I hate seeing a dispute where the guys who I would like to be the Good Guys are on the Wrong Side, but that may be the case here. The estate of JRR Tolkien, managed by his son Christopher (an indefatigable editor of his father's works), is suing an author for inserting Tolkien as a character into his novel. It may turn out that I know a lot less about copyright than I think I do -- in fact, I can just about guarantee that, which is a sort of paradox, although not the sort that will cause the universe to vanish into a black hole, or even keep me up at night, or --

Excuse me. Anyway, I may discover I'm wrong, but at least under American copyright law, I can't see what possible claim C. Tolkien could make to stop this novel. You can't copyright a fact and it would certainly blow my socks off to learn that JRR Tolkien was, in fact, a fictional character. (It would blow off a lot of socks, perhaps more than all the socks that have ever been lost since the invention of the clothes dryer.) Nor could you make a claim for defamation or invasion of privacy, since Tolkien is dead and you don't get to take those legal considerations with you when you go. And it seems the author is not using any of Tolkien's invented characters. So what use of copyrighted material is there? I don't know; it almost sounds like the estate's lawyers are confused about the difference between copyright and trademark, although lawyers ought to know that sort of thing.

So I'll have to add this to my Google News alerts and see how it turns out. Either Christopher Tolkien is making an ass of himself, or I'm going to learn something I didn't know.

Copyrighting T-Rex?

Here's an interesting case I started to write about, and then forgot to finish. But I'm still going to keep an eye on it. The Black Hills Institute of Geological Research is a private company in South Dakota that specializes in selling prepared fossils and casts. They claim that they loaned some Tyrannosaur bone casts to a Montana company called Fort Peck Paleontology, who never returned them and has been selling their own copies of these casts. BHIGR is suing.

Now I don't know what the terms of the loan were, and since BHIGR is a professional and commercial operation, you'd think they would write these restrictions into any contract they made. If they didn't, that's their mistake. But what intrigues me is that the lawsuit is claiming copyright infringement, not breach of contract. They are claiming they own a copyright on these bone casts.

As a general rule, you can't copyright a fact. The landmark case here is Feist v. Rural (1991), where the US Supreme Court held that a company could not claim copyright of its list of names and phone numbers. The particular medium, method of presentation, any commentary or editing - those can all be copyrighted as creative work. But the bare facts - the list of numbers - could not.

So can BHIGR claim that their bone casts are original, creative works? The president of the company, David Larson, claims that making dinosaur bone casts requires "a blend of scientific and artistic creativity," but otherwise emphasizes the amount of time and effort that they require. That smacks of the "sweat of the brow doctrine," which claims that amount of sheer labor that went into a production justifies the creator's monopoly over the product. That's an attractive, seemingly even a common sense, doctrine, especially to producers. But since Feist v. Rural, it's not the law in the US.

The pitfall for BHIGR is that the creativity lies mainly in their methods, not in the finished product. In fact, it's hard to imagine that they could be successful selling products they claimed were artistic representations of a dinosaur bone, rather than faithful and exacting reproductions of the original. Their website emphasizes, on the one hand, that "Perhaps the most important factors required in making fine molds and cast replicas are ingenuity and creativity." On the other hand, they also boast that they "have successfully developed new methods and materials for molding fossil specimens and producing cast replicas that retain the look and feel of the original fossils." That makes it sound like the value of the casts is not in their artistry, but in their adherence to fact.

I might be looking at this wrong. Perhaps the best example is a photograph of a building: you can still copyright the photograph, even though it's a representation of an uncopyrightable fact. If so, I look forward to the ruling setting me straight.

[Post script] It occurs to me that another comparison that might work in BHIGR's favor would be translations of old texts, which are original works for copyright purposes. Thus the New International Version translation of the Bible is under full copyright, despite the great age of the Bible itself. The 400-year-old King James Version, of course, is in the public domain.]

How to get on the wrong side of the internets, conclusion

Under a storm of negative publicity over acts of plagiarism and jaw-dropping ignorance of copyright law, Cook's Source magazine has been hounded into oblivion. Let that stand as two warnings: if you publish, you need a basic understanding of copyright; and, in the internet age, that presumed non-entity on the other end of your emails just might be able to conjure up a horde of rampaging barbarians faster than a Capital One commercial.

How to get on the wrong side of the internets

Apparently this story is making the rounds and now an ignorant, arrogant, unscrupulous small time publisher has learned two things about the internet that anyone in her position should already have known:

1) things posted to the internet are not automatically in the public domain;

2) millions of strangers can form a poor opinion of you in a remarkably short time.

Picked up at Pharyngula; the original post is here.


Update: The slapdown was immense, probably more than was at all necessary. Still, this made me laugh:

The company said it shut down its Facebook page on November 4, but it has since been hacked and is no longer controlled by Cooks Source. Ironically, the publication complained about the hackers who are posting items to its Facebook page "without our knowledge or consent" and posted a link to a Facebook tutorial about how to report claims of intellectual property infringement.

Big claims

A funny little incident occurred this week when the organization that manages English historic sites claimed copyright over every image ever taken of Stonehenge. According to the blog of the image library fotoLibra, the organization English Heritage sent them the following message:

We are sending you an email regarding images of Stonehenge in your fotoLibra website. Please be aware that any images of Stonehenge can not be used for any commercial interest, all commercial interest to sell images must be directed to English Heritage.

As of Friday, the English Heritage site has posted a disavowal:

English Heritage looks after Stonehenge on behalf of the nation. But we do not control the copyright of all images of Stonehenge. And we have never tried to do so. We have no problem with photographers sharing images of Stonehenge on Flickr and similar not-for-profit image websites. We encourage visitors to the monument to take their own photographs.

If a commercial photographer enters the land within our care with the intention of taking a photograph of the monument for financial gain, we ask that they pay a fee and abide by certain conditions. English Heritage is a non-profit making organisation and this fee helps preserve and protect Stonehenge for the benefit of future generations. The majority of commercial photographers respect this position and normally request permission in advance of visiting. We regret the confusion caused by a recent email sent to a picture library.

Which doesn't quite explain why the original email went out in the first place. I wonder if some mid-level executive has been reading about expansive copyright claims and just assumed he had the law on his side?

Don't do this

Irony. I loves it.

A Taiwanese man who won a poster design competition to promote copyright protection has been stripped of his prize after he was exposed as a copycat, officials said Thursday.

Can you own your creative process?

This is cute: Paramount Pictures is now claiming the copyright to video they didn't produce. A guy came across the shooting of Transformers 3 and used his iPhone to record a few minutes of the action. When he posted it to YouTube, Paramaount issued a takedown notice, claiming violation of copyright. Here are a few seconds of the video:



My question, were I a lawyer, would be: "Exactly what is Paramount claiming to have copyrighted?" It can't be the video, because they didn't create it. It can't be the Transformers 3 movie, because Mr. Brown hasn't reproduced any of their film. It can't be the story, because (even granting the dubious premise that Transformers 3 will have a plot) this video hardly reveals the story (we do learn that an automobile will be tossed in the air - in other spoilers, Bruce Willis will fire a gun during Die Hard 37).

If you are creating a copyrightable work, can you really claim copyright over every activity related to its production? If someone were to post a detailed, written description of what he'd seen from his window, would Paramount be able to claim a copyright over that description? That seems far-fetched, as it's obviously fair use commentary or reporting. It seems like the same sort of situation, when you produce a video description of the creative act - which is not a reproduction of the artistic work itself. If you don't want anyone to learn anything ahead of time, you might try to film on a closed location. But this copyright claim looks rather dubious and I'm glad the creator is resisting the takedown notice.

Nein! Nein! Nein! Nein! Nein!

Get this: obscure film gets vaulted to international fame by knock-off parodies; distributer sues to stop it. Everyone who thinks that's a dumb move will leave the room now.


A cynic* might note that Constantin Film waited until they had already gained the benefit of thousands of hours of free advertising, but it's still a bad move. Even Star Wars can be forgotten if no one's reminded of it.


[Update: Constantin Film's decision is being mocked. Guess how?]
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* Not me, of course; I'm just pointing out what a cynic might say.

Advertising v. royalties, QED

So are copyright owners harmed or helped when their material gets uploaded to YouTube? Are they being deprived of well-deserved royalties, or does the exposure count as free advertising that ultimately benefits them beyond any fees they could have realistically commanded?

The recently-released documents regarding Viacom's lawsuit against Google would seem to dispose of that question. It appears that even as Viacom was suing Google over unauthorized uploads, they were aggressively using YouTube as an indispensable marketing tool. The word-of-the-moment is "viral," the geometric expansion of attention as YouTube clips get linked from blogs, which get linked from more blogs, etc., until it's so famous that you can get a symphony orchestra to accompany a cat on the piano. Who, with anything to sell, wouldn't kill for that kind of fame?

What Viacom did (and it's surely a widespread practice) was not only post videos to YouTube, but go to great lengths to pretend that the clips were uploaded without authorization, or had even been stolen. They had third parties use untraceable email accounts, or reduced the quality to make it appear that they had been surreptitiously acquired, to disguise their advertising campaign as grassroots enthusiasm. Google charges that Viacom's smoke screen was so effective that they frequently lost track themselves, demanding their own clips be removed and later asking for reinstatement.

Google argues this as proof that they can't possibly keep track of authorized v. unauthorized uploads, if Viacom can't keep track of their own work. We'll see how that works out as a legal argument, but I'm more interested in the economic reality it indicates. As with radio play, free advertising benefits the bottom line far more than does trying to squeeze every last dime of performance royalties. At least, Viacom thinks so and they probably know their business.

Pirates!

I've been catching up on a truly horrendous copyright judgment out of Australia a couple weeks ago: Colin Hay, Ron Strykert, and EMI records were found guilty of plagiarism for borrowing a couple of bars from a children's song in Men at Work's iconic "Down Under."

Here is the song in question, "Kookaburra."

If you can already place that in "Down Under," then congratulations, go to the head of the class, you are a world class expert on 1980's popular music. For the rest of us, listen to Men at Work and try to spot the borrowing: "Down Under"

Did you catch it? It's in the flute riff at 0:53. Eleven entire notes, not even part of the song's melody. For that, the Larrikin Music Publishing firm claims they're entitled to $33,000,000, despite having had nothing to do with writing or publishing those notes in the first place. Marion Sinclair, the woman who wrote "Kookaburra" for the Girl Guides in 1935, never even bothered filing on the copyright until decades later. After she died in 1990, Larrikin acquired the copyright and started looking for people they could enforce it upon:.

The company has hit the jackpot since buying the rights to Kookaburra in 1990 for just $6100. Mr Lurie estimates Larrikin has netted "hundreds of thousands’’ of dollars from licensing agreements with publishers and authors around the world, who had always considered it to be in the public domain.

"It’s earnt a hell of a lot of money for us since we’ve bought it," Mr Lurie said.

Lurie also says,

"Of course it would be disengenuous for me to say that there wasn’t a financial aspect involved, (but) you could just as easily say what has won out today is the importance of checking before using other people’s copyrights."

Did you hear that last line in the faux-innocent voice of Eric Cartman? I did. Publishers like to talk about piracy, but this is piracy! Not that petty shoplifting stuff that the RIAA likes to complain about - I'm talking Old School, let's sail around and find someone productive to plunder piracy.

Now, Larriken are music publishers, not musicians, but I'll bet they know the difference between musical borrowing and musical referencing, and that this incident is clearly the latter, placed in the accompaniment not because they couldn't think up their own tune, but because of the Australian flavor it would evoke. Never mind; they found a judge who doesn't understand that and they can laugh like Kookaburra all the way to the bank.

Copyright is supposed to encourage creative production by ensuring that the creator profits from his creation. Fair enough. But this copyright trolling - a close cousin to patent trolling - does the opposite. Of the three parties involved - Hay & Strykert, Sinclair, and Larriken - clearly the most creative are being pillaged by the least creative.


[PS. Forgot to mention that the parties are supposed to appear before the judge again this week after negotiating damages. I'll have the update as soon as I see it.]

[Update: The decision is now under appeal.]
[Update 2011: The appeal has been lost]

Back in July I wrote about a case where ASCAP is suing Verizon, claiming that musical ringtones on cellphones are a "public performance" and Verizon should pay performance fees; this depite - no, in addition to - the fact that Verizon already pays fees to ASCAP for selling these ringtones.

On Wednesday the judge ruled in the case and, wise public servant that she is, entirely agreed with me. Although the words were measured, the upshot was that ASCAP's case was ridiculous and was a misreading of both law and fact in virtually every aspect. A ringing phone is not a "public performance" by either the customer or the provider, signalling the phone to ring is not the same thing as playing a recording, and no amount of wishful thinking allows ASCAP's lawyers to redefine legal standards and the physics of wireless communications to their convenience. They still get paid for ringtone sales, but they don't get to doublecharge by pretending Verizon is both a music store and a radio station.

More trouble for the Google Books settlement

French publishers have brought suit in Paris to stop the Google settlement, because the newly-digitized collection certainly contains many French works without their publishers' permission. The rhetoric is a wee bit hyperbolic: the president of the publishers group Syndicat National de l’Edition refers to the settlement as a "cultural rape," from which you would think scanning books is comparable to, oh, Napoleon filling the Louvre with the pillaged treasures of Europe or something. Ridiculous.

I had to search several articles before I could discover that Google is scanning books from a French library, which is the only avenue I can see for thinking French courts would have any jurisdiction at all; my (shallow) understanding of the Berne Convention is that French books in America fall under American law (the main point of the convention is that they do get the protection of the other country's laws and are not fair game for plagiarism and republishing). So I dunno - it might be a stretch to have Paris courts weighing in on the settlement. But in any event, the challenges are mounting and we may be much farther from that wonderful electronic library than we need to be.

Copyright Office weighs in on Google settlement - not good

The Register of Copyrights, Marybeth Peters, testified before the House Judiciary Committee yesterday and she is quite skeptical about the legality of Google's plan to scan books and create a registry of authors for future compensation. The crux of her concern:

Ms. Peters said that in granting something like a “compulsory license,” a requirement that rights owners license works to others, the settlement essentially usurped the authority of Congress and skirted deliberations.

“In essence, the proposed settlement would give Google a license to infringe first and ask questions later, under the imprimatur of the court,” Ms. Peters wrote in her prepared testimony.

This has always been the biggest legal sticking point in Google's digitization scheme - do they need to negotiate approval first (the opt-in position), or can they go ahead with their scanning and then later restrict books whose rights-holders step up and ask them to stop (the opt-out position). Getting prior permission for millions of books is impractical, to say the least, so Google has always preferred opt-out: we'll scan it, but let us know if you don't want us making it available.*

Peters is arguing that, practicality be damned, the law just doesn't allow it. Like it or not, you need permission first.** The Google registry essentially creates a compulsory license system, much like how songwriters get paid but can't make a radio station stop playing their songs. The latter system, of course, came about by an act of Congress and there's the rub - Google isn't Congress, even if they do have a stronger bank account.

You can read my contemptuous views on the so-called Google "monopoly" here, but the registry is a more serious matter. Even if it's a good solution - and I believe, for the most part, it is - it might not be legal without federal legislation. Unfortunately, so long as it appears only one company is in a position to benefit, that won't happen. Amazon may be building a digital library under an opt-in system, but that leaves an enormous amount of literature - the orphan works - untouchable.

So it's entirely possible that, while there's no illegal monopoly here, the fear of one will prevent an allowable solution - Congress stepping in and creating a compulsory licensing scheme. It will be a tragedy if we lose a chance to make all these books accessible because only one company was bold enough to take on the task***, but that could well be the result. Is it really better to have no grand digital library than to let Google be the spearhead?


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* Where major publishers are aware of what's going on, though, they don't hesitate to opt-out before the scanning takes place. At the UM libraries, the stacks are festooned with pink slips that read "Not scanned at publisher request."

**Unless, like Bobby Bowfinger, you're lucky enough to catch those publisher in some kind of embarrassing situation....

***Ayn Rand fan should be hearing, "Why should only Henry Rearden be allowed to make Rearden Metal?" Seriously, I've seen suggestions that Google should be forced to give away all the digital files they've made at enormous cost.

IP and OLD technology meeting a changed culture

James asked for a post on the pending legislation that would require radio stations to compensate performers for playing their music on the air. So here goes.

The crux of the issue is this: when a radio station broadcasts a song, they have to pay royalties. But those royalties are due only to the composer of the song, not the performer. I'm not sure entirely why, other than that this arrangement dates back to the early 1920's when it was more common to identify a song by the composer than by the performer. Few composers would ever sing their own tunes and, for example, a Gershwin tune would remain a Gershwin tune regardless of who sang it. The notion of a "cover," have to acknowledge the fact that you're not the first to sing this song, would have generally been a redundancy.*

Well, times have changed and people care more about who sang the song than they do about who wrote it (if they're not the same person). A lot of folk won't recognize the names Jerry Lieber and Mike Stoller, but they can't help but think of Elvis Presley if they hear "Hound Dog" (most won't know that he didn't sing the real lyrics, either). Does it make a difference to heavy metal fans whether "You've Got Another Thing Comin'" is performed by Judas Priest or Pat Boone? You better believe it. Performers have eclipsed composers in the public's mind when they think of musical creativity.

So, if radio stations have to pay the composers when they broadcast music, why shouldn't they have to pay performers, too? Indeed, why not? I can't think of any good reason at all.**

Of course, the broadcasters can think up one really good reason why they don't want to, and plenty of weaker reasons why they shouldn't. To my mind, almost none of them fly.

First off, let's dispense with the BS about royalty fees representing a "tax." Royalties aren't taxes; people just hate the word more. That's just faster-than-78-rpm spin.

Nor will it drive radio stations out of business, or force them all to become talk radio stations (surely that market is already saturated!). We've heard it all before, every time the minimum wage goes up or automobile fuel efficiency standards are raised. "Can't be done! We'll all go out of business!" Nonsense. Remember how you used to see McDonald's and Burger King on every street corner, until they raised the minimum wage in 1993? And now you just can't find a fast food res - yeah, right.

You have to try to pass the cost on to your customers, but so do all your competitors. Unless the customers stop patronizing all of you, they end up paying the cost and everything goes on as before. Unless advertisers desert radio altogether, they'll just have to make their contribution to paying those royalties.***

The broadcasters do have one true argument. It's not really a legal argument, but they simply point out how much musicians benefit from having their music on the radio. And indeed they do. The payola scandals of the 1950's prove it - it was considered cheating for a record label to pay the radio stations to play certain artists. This wouldn't make any sense if they thought of that broadcast as a rip-off, but is perfectly sensible if they viewed it as advertising that boosted their overall revenue. Follow the money, if you want to know what they really believe.

Here's my take. Demanding revenues for the performers is perfectly fair and justified. However, it might be short sighted, especially if the fees are too hefty. So let's do this: let's let someone muscular, like Clear Channel, refuse to broadcast any music unless the performers pay for the advertisement. The market can be the referee and we'll see who really had whom by the balls all along.



[PS. The ringtone post was already getting long, or I would have discussed the performance-as-advertising aspect of that case. There should certainly be some awareness that selling ringtones has increased the market for popular music, to the artists' advantage. They deserve their cut, but trying to milk it that hard just shows a certain lack of respect for how little they directly contributed to expanding their own market.]

[PPS. It occurs to me (soemtime later) that composers for theater still enjoy preeminence over the performers. For example, Andrew Lloyd Weber enjoys a tighter association with his music more than any singer ever will, not even Sarah Brightman. I presume this reflects the difference between a transitory stage performance vs. the "imperishable" recorded performance.]


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* This may have much to do with the relative infancy of the recording business, too. In the age of live music, the performance was transitory and only the composition could have any permanence.

** In fact, internet radio - under more recent legislation - is already doing just that and would like to see the playing field leveled.

*** The broadcasters do point out that advertising receipts are down, but that can mean one of only two things: everything will be fine once the economy improves, or else radio is a failing industry anyway. Either way, special protections don't make long term sense.

IP and technology - the neverending story

So you may have seen these news items about the latest move from the American Society of Composers, Authors, and Publishers (ASCAP). Those pop-song ringtones you buy for you cellphone, so that you sound all funky to the world and id your ex-girlfriend's call before you answer? Those are public performances and your phone provider should be charged accordingly!

This has led to a fair amount of outrage and – as seems typical of ASCAP legal ploys (see footnote below) – almost seems designed to elicit giggles. A phone ring is a public musical performance? How about your neighbor's stereo? What if I roll down the windows of my car and someone hears my stereo? How about little girls singing at girl scout camp?* Are all of these public performances?

Everyone seems to be talking about this potential threat to the owners of the phone, but as I read the documents, that's exactly the line of thinking that ASCAP is hoping to avoid. That's because casual, non-commercial performance of a song or recitation of a text are pretty clearly exempted by section 110(4) of the Copyright Code. If I perform a song for money, or play a recording because it draws more people to my business, then I owe ASCAP money. If I'm just playing my stereo or singing a song, and other people happen to hear it, then I don't. ASCAP doesn't want anything to do with section 110.

Here's what happened: ASCAP was charging performing rights fees to cell phone service provicers. But they were also getting a cut of the sales revenue from the ringtone purchase. When the court ruled, a couple years ago, that a downloaded music file should be treated as a record sale, while a streamed audio file counted as a broadcast performance, Verizon and AT&T decided the money off the sales was all they owed, and they quit paying for performing rights.

ASCAP doesn't like this and they're suing. But here's what they have to do to win their case: they have to first convince the court that a downloaded file triggered by a remote signal is really a form of streaming audio, and then they have to establish that the responsibility for the playing of music lies with the folks who notify you of a call, rather than the person who buys the music and sets it to play when his phone rings.

To argue the first part, ASCAP is grasping onto language in the definition which includes the words “designed for” or “capable of” contemporaneous playback. “Hey! It's exactly the same type of digital file, no matter how you deliver it! It could be played contemporaneously when it's downloaded, so this can treated as streaming audio! Triggering a downloaded file is just a tricky techno-dodge to get around their obligations.**”

If they pull that off, then they still have to establish that the ringing phone constitutes a public performance, and that it is a public performance by the phone company. That's critical, because 110(4) is ASCAP's third rail: if their case touches on it, they're probably fried. So they're trying hard to redefine the core issue. It's not about you playing your phone's ringtone; it's about AT&T or Verizon playing your ringtone for you.

ASCAP argues that, because the phone company can cancel your contract, has elected to sell you the ringtone, owns the network, and sends the signal to your phone, they are controlling the performance. Never mind that Verizon only sends the signal to my phone and I'm the one who decides what, if any, ringtone plays to announce it. ASCAP claims Verizon is playing music for me and they have "complete control" over the performance.

Just to cover all the bases, and make sure bloggers get a good laugh at their expense, ASCAP points out that an airwaves broadcast is always considered a performance, whether or not you can prove anyone had their radio or television turned on. So ditto with phones, right? They say the ringing is “public, regardless of whether some customers' phones may be sometimes switched to vibrate, turned off or located in the home. For a ring tone performance ... to be a public performance, it need not be received by the public every time." By this reasoning, it appears to be a performance, even if I had set the phone to vibrate, dropped it in the woods a week ago, and the battery has run dead. It might even still be a performance if I had dropped the phone into a volcano and neither it nor the digital file even exists any more.

If they were arguing this case before my court, they'd have a pretty slim chance of success. But judges are known to hang a decision on some very technical, literal, and counterintuitive reading of a text. We'll see how this one plays out.

My favorite part is this line from ASCAP's response to AT&T's motion for summary judgement:

“It is difficult to imagine how AT&T could more actively induce the unlicensed performance of ASCAP work than it already does.”

Oh, come on, ASCAP. I know your lawyers have more imagination than that!


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* This example isn't chosen at random. Some dozen years ago, ASCAP leaped into a huge pile of PR manure by threatening girl scout camps to either pay up or shut up. I find it ironic that such tone-deaf people are entrusted with protecting the interests of musicians.

** In fact, downloading is the only efficient way to deliver ringtones without wasting bandwidth with every call.

Is the internet a right, pt. II? In France - yes

A couple months ago I mentioned the efforts in France to pass laws that would allow illegal file sharers to be barred from internet service. At that time, the law had been defeated, but was since brought up again and passed.

Now it's been struck down again by the French Constitutional Council. You can read their decision here, if your French is any good. Mine isn't, but the accounts are saying that the Council ignored the practical considerations - do you punish a whole household for one person's misdeeds? wouldn't you just end up nabbing the less savvy and less harmful thieves? - and went straight for the big issue.* Invoking the 1789 Declaration of the Rights of Man, which are enforceable under the French constitution, the Council wrote:

But the Council found the law violated both the constitutional right to freedom of expression and the right to presumption of innocence.

“It follows,” wrote the Court, “that in principle the legislature does not establish a presumption of guilt in criminal matters”. The Court also said exercising freedom of expression and communication, including that performed over the internet, is a prerequisite for democracy.

“Attacks on the exercise of this freedom must be necessary, appropriate and proportionate to the aim pursued,” it said.

In particular, the Council strongly disapproved that a legal punishment would be determined by a political agency rather than a court of law.

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* In marked contrast with US Supreme Court tendencies, which Ed Brayton critiques here.

Is internet access a right?

Eric Pfanner at the New York Times asks, "Should Online Scofflaws Be Denied Web Access?" You see, some folks* believe that people who pirate copyrighted media should be denied their own internet connections.** A bill to do just that was defeated in France last week and European consumers are reported as being strongly against any such thing. In fact, according to Pfanner,

Last month, in a pre-emptive strike, the European Parliament adopted a nonbinding resolution calling Internet access a fundamental freedom that could not be restricted except by a court of law.

At first blush, that sounds a little far-fetched, calling internet access a fundamental freedom. What's next, a fundamental right to quarter-pound hamburgers? Plus a constitutional right to fries?

At second blush, though, maybe not entirely far-fetched. The internet has now become the most basic informational, organizational, and administrative infrastructure we have. It's how I get the news, it's how I write to people, it's how I access my bank account and pay many of my bills, it's how I do much of my work at home, and it's almost the only way to hunt for a job nowadays (and often the only way they want you to apply for one). Would losing all that be proportional to the crime of sharing music files?

How often do we punish a person by depriving them of access to fundamental infrastucture? I mean, aside from actually tossing them into the pokey? The nearest equivalent I can think of is taking away their driver's license. But here's an illustrative point about traffic laws: we make this big distinction between moving and non-moving violations. You can have your car impounded for not paying parking tickets, but they don't permanently confiscate the car or prevent you from driving someone else's because of it.

You're still allowed to drive after offenses like that. We only take away your license when you're just too damned dangerous to be allowed on the road.*** It's the crimes that are likely to lead to mayhem and death that justify barring a person from the road. Not property crimes; just threats to life and limb. And internet piracy doesn't offer any equivalent to drunk drivers or street racers. Property crimes don't justify cutting someone off from the virtual world, because that's where everyone is doing real business nowadays.


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* Often spelled R-I-A-A.

** Presumably, they could still go online at a library or coffee shop, but not have their own ISP. This gets trickey, because many household connections are shared by several family members and some wireless connections are shared by multiple households. Then there's the possiblity of someone hacking into your wireless account, and ... it's just not as easy as saying "Here's the ISP, so we have the guilty party."

*** And often not even then. It's so crippling to be barred from the road in our culture that we're reluctant to impose that penalty even on maniacs.