Law Librarian Blog

Six Strikes Program Against Piracy Goes Into Effect In The US This Week

The six strike copyright monitoring system that was brokered between content holders and ISPs goes into effect this week.  The FAQ for the Center for Copyright Information (CCI) explains how the system works.  Generally, content holders will monitor peer-to-peer networks, identify the content as their own and send the IP address to the appropriate ISP.  The ISP will send a series of messages to the account holder indicating the piracy allegation.  The first two messages are educational.  The next two are acknowledgement alerts that require a response.  The final two are mitigation alerts that impose minor consequences such as a speed slowdown.  Appeals are allowed at $35 a pop.  The CCI does not make money from these appeals as the money goes to the American Arbitration Association, the organization that hears the appeal.

Some commentators expect little change in the downloading habits of those who may be affected by the program.  One reason is that termination of the offending Internet account is not part of the program.  Another is that by limiting the program to BitTorrent and P2P traffic, determined downloaders will move to other sources such as blogs, file lockers, and of course, Usenet.  Many companies providing subscription services to Usenet tend not to log their customer activity.  That detail may put a dent in enforcement should the program start monitoring these sources. And using virtual private network (VPN) or proxy services can hide an IP address.

My biggest concern is how the CCI will handle the inevitable messages sent by scam artists pretending to be ISPs or the CCI.    It is possible that some scammers could conceivably send high quality fraud messages that steal graphics from legitimate sites.  I get these all the time from people pretending to be banks or popular Internet destinations.  One way to tell a legitimate message from a scam is that the ISP/CCI messages should not demand money to mitigate a violation.  Another way is to let the cursor hover over a link in the message (without clicking on it, of course) to reveal the true destination.  Most mail clients and browsers support this feature.  I recommend calling an ISP’s customer service line to verify the messages are accurate for anyone who still isn’t sure.

One other prediction:  watch for the content holders to advocate for a stronger program when their sales or profits do not rise significantly.  Read more in the National Law Journal, Billboard, and my favorite snarky technology news site, The Register.  [MG]

Why Not Offer Digital And Hard Copy Books In A Single Sale?

One of the more interesting ideas that publishers could consider comes from Michael Clarke at the Scholarly Kitchen.  The article is called What Can Publishers Learn from Indie Rock?  The article compares the sale of vinyl albums (a growing niche, but a niche nonetheless) and hardcover books.  Many indie bands provide digital download links with the sale of a vinyl edition of an album.  Clarke proposes that hardcover book sales could work similarly by offering a digital copy of the book as part of the sale.  A variation of that would be to offer a combined hard/digital copy for a combined lower prince.  We’ve seen this same marketing technique with DVDs where a movie is sold with the rights to a digital copy for a limited time after the sale.  Clarke also proposes that the digital copy of the book be DRM free.  I seriously doubt that publishers would go for that.  It’s an interesting idea though, and it might even spur sales of physical books. 

There may be other marketing possibilities such as making the digital copy available if the hardcover was purchased at a physical bookstore.  Publishers have expressed anxiety over Amazon’s dominance of the book market in one form or another to the detriment of brick and mortar retailers.  I’m not suggesting publishers cut Amazon out of the equation, but some form of marketing may make local retailers more attractive to buyers.

The article is interesting to me for another reason as it highlights the “legendary” Reckless Records as an inspiration for music discovery through knowledgeable staff.  I’ve mentioned Reckless occasionally in past posts as a great place to find used music and movies at extremely reasonable prices.  I was at the store earlier this morning and found an Australian DVD released in 1981 of Fischer-Z live.  The cost was a mere $2.99.  I mention this merely because the outcome of the Kirtsaeng case awaiting decision by the Supreme Court may subject Reckless to liability for copyright violation by offering for sale a foreign-made used copy of a work in the second-hand market.  More on that here.  [MG]

"Oh Well, There is Always Lady Gaga": The Lady Gaga video is now iPad friendly

Responding to a couple of LLB reader requests, the Lady Gaga video linked to at My Playlist for Boston 2012, Monday: Amy Winehouse's Cover of Will You Still Love Me Tomorrow and posted at No Business Model Required has been re-coded so that it can be viewed on iPads at the second listed link. My bad. [JH]

My Playlist for Boston 2012, Tuesday: Roy Buchanan & Albert Collins performing Further On Down The Road

[JH]

My Playlist for Boston 2012, Monday: Amy Winehouse's Cover of Will You Still Love Me Tomorrow

The E-Board is so tuned into what's going on, I wonder if they know that Amy Winehouse is no longer performing "live." Come to think about it neither are Roy  Buchanan or Albert Collins who have been featured in my earlier (and again in a later) playlist music videos for AALL Boston 2012. Oh well, there is always Lady Gaga. [JH]

My Playlist for Boston 2012, Sunday: Love Me Like You Say performed by Albert Collins

[JH]

My Playlist for Boston 2012, Saturday: Roy Buchanan's Sweet Dreams

[JH]

Browsing On A Sunday: Porn In Libraries, Librarians In Porn, Cultural Archives, And Affirmations Of Piracy

The issue of porn on public library computers is back in the news thanks to an incident at the Lake City Public Library in Washington State.  A mother with her two children observed a man watching hard core porn there and complained to the staff.  The library staff refused to intervene, citing a policy of unfettered Internet access to adults.  No censorship, they say.  I don’t know.  Librarians censor all the time, except we call it collection development. 

I wonder if the library would honor requests from patrons for videos distributed by Hustler or Vivid.  I’d guess that explicit adult video is under-represented in most collections.  The Seattle Post-Intelligencer has the initial story, and coverage of an earlier Washington State Supreme Court decision that allows public libraries in that state to censor porn without liability.

The Consumerist has an informal poll on this very topic, with (as of this writing) close to 40% of respondents saying porn should not be openly viewable in a library.  About 27% would allow it in certain sections of the library.  Those in favor of library porn were split between viewing with no restrictions at around 7% and those who would allow unfettered access while requiring the viewer to have some consideration of the surroundings at 26%.

For those (few, I’m sure) interested in porn that features libraries and librarians, the Paris Review (co-founded by George Plimpton in the 1950s) has an article called Checking Out.  It features highlights of materials that feature library sex, including some of which involves staff.  Warning: some of the graphics on the page includes nudity as depicted on the reproduced covers of such titles as Naughty Voyeur Librarian and Nympho Librarian.  Ahhhhh, the nobility of freedom of speech.  For the record, WorldCat shows no libraries as having holdings for Nympho Librarian.  However, Google Books has about 50 references to the title, or items like it.  Some of these search hits are from references in Library Journal, of all places. 

Another topic that may be considered gritty but not seedy is related in this story in The Atlantic, The Legacy of Alan Lomax.  He founded Folkways Records and was obsessive about preserving American folk traditions by recording as much of it as possible.  His archive of recordings was pretty vast.  Now that archive is going digital for streaming to the public.  That’s some 5,000 hours of sound recordings, 400,000 feet of film, 3,000 videotapes, 5,000 photographs, and uncounted manuscripts.  It should all be available at some point via the Cultural Equity web site, assuming some copyright troll doesn’t try to claim rights.

Speaking of copyright trolls, Tom Brady, the quarterback for the New England Patriots who will be playing in today’s Super Bowl game against the New York Giants has stated that he watched last year’s game via an illegal stream while rehabbing his foot in Costa Rica.  I wonder if the NFL will sue him.  Did he have permission of the NFL and the teams involved?  Brady seems experienced enough to find a source for the game on his laptop.  Let’s not ask how he gets his movies and music. 

 And speaking of illegal music downloads, Neil Young has come out in favor of music piracy.  He is quoted on CNN as saying "Piracy is the new radio.  I look at the Internet as the new radio. I look at the radio as gone."  I’m sure his label and the radio conglomerates think otherwise.  Stop it Neil, you’ll make Lars Ulrich from Metallica cry.  [MG]

Article Format of the Future: Elsevier Leads the Way for Online Journal Literature

Elsevier has launched new Article of the Future prototypes. From the press release:

The improved Article of the Future format is one of several enhancements Elsevier is introducing to SciVerse ScienceDirect. APIs have been released to allow for applications to be built using ScienceDirect content among other products within the SciVerse suite, and considerable developments have been made to search and discovery functionalities across article content. All of these enhancements are made to enhance the research workflow, with the Article of the Future project specifically focusing on improving the content and presentation of the individual article

The experimental format for online journal articles in the scientific journal literature can be viewed through prototypes in seven disciplines at the Company's Article of the the Future website. If you take a look-see, imagine what a new article format prototype might be for law in the context of what new content opportunities a similar (or substantially different) experimental format might bring to the online legal literature.

Hat tip to Gary Price's INFOdocket post. [JH]

Ringtones Are Not Public Performances

Customized ringtones are a popular way for people to express their individuality and/or tastes, assuming millions of phones playing Jay-Z's Run This Town is an expression of individuality.  Phone companies encourage customers to download ringtones.  Record companies have discovered another revenue source that didn't exist fifteen years ago.  Even the artists make money from the sale of ringtones.  However, these are all one time sales.  ASCAP, one of the two major U.S. performance rights organizations, believes that somebody owes someone money every time one of those thirty second song snippets announces a phone call.  To it, that's a public performance no different than a radio station playing that same song.  So ASCAP sued the phone carriers.  ASCAP nobly makes it clear that individual cell customers are not the target.  Instituting suit against every cell phone user with a custom ringtone is a dead bang money loser.  Just ask the RIAA about the cost effectiveness of that strategy. 

The case was pending until yesterday when a federal judge decided that ringtones do not constitute a public performance under the copyright laws.  Common sense and law coincided in this case.  The court was pretty clear.  Cell phone users are not liable for royalty payments and the carriers are not secondarily liable.  Section 110(4) of the Copyright Act exempts "[any] performance of a nondramatic literary or musical work otherwise than in a transmission to the public, without any purpose of direct or indirect commercial advantage and without payment of any fee or other compensation for the performance to any of its performers, promoters, or organizers, if [] there is no direct or indirect admission charge. . . (quoted from the opinion at 12).  Given that cell phones announce phone calls and are not sources of commercial public entertainment, the exemption in 110(4) covers the circumstances. 

Part of the Court's analysis turned on whether there was a commercial purpose in the playing of the ringtone.  The only example was one raised by ASCAP where there was a performance that used ringtones as part of the 2006 Chicago Sinfonietta "Concerto for Orchestra and Cell Phones."  Even then the Verizon customers who "played" their cell phones did not have a commercial purpose for their performance.  Rather, it was the Chicago Sinfonietta who received fees and charged admission for the performance.  Verizon was kind enough to point out that ASCAP licensed the orchestra at the time of the performance (opinion at page 25, footnote 16).

With no direct infringement, there is no contributory infringement on the part of Verizon and the other carriers.  The rest of the opinion analyzed the variations of what constituted a transmission, such as whether the transmission of the ringtone from the carrier to the customer comprised another public performance that would force the carrier to pay another fee.  The court patiently went through every line of argument and rejected them all.  Expect an appeal, though it's hard to imagine an appellate court disagreeing with the reasoning in this opinion.  The case is In Re Application of Cellco Partnership D/B/A Verizon Wireless Related to United States of America v. American Society of Composers, Authors, and Publishers (text of the opinion courtesy of the EFF).  [MG]