Wendy Seltzer's blog

Over at Wired's Threat Level blog, Kevin Poulsen reports on a new DMCA overreach: the U.S. Air Force complained (via outside counsel) about his posting of their recruiting video. The post, Poulsen says, was initially made at the Air Force's invitation.

If the government created this work, then the DMCA claim is improper. Works of the U.S. government are not copyrightable. But the statute allows the government to receive copyright assignments, so if an independent contractor created the video, still available at the Air Force's (non .mil) site, the government could meet that technical requisite of the DMCA.

The DMCA also requires that the notifier assert the posting was unauthorized. Poulsen's article, however, says the Air Force sent Wired the ad and "thanked THREAT LEVEL for agreeing to run it." That doesn't quite square with the DMCA-required statement that the notice-sender "ha[s] a good faith belief that none of the materials or activities listed above has been authorized by the U.S. Air Force, its agents, or the law."

Even if the Air Force's DMCA claim is truthful, however, it's still a policy overreach. Wired posted the video in order to report on government recruiting efforts; the video's dissemination is part of that First-Amendment protected discussion, whether it happens on or off government websites. The DMCA makes it too easy to takedown first, think later.

Earlier this month, comedy group The Richter Scales released a funny music video, "Here Comes Another Bubble." The video showed a montage of Silicon Valley images over a sound-track adapted from Billy Joel's "We Didn't Start the Fire," lampooning the Web 2.0 bubble that seems near bursting again. The video must have touched a nerve, as well as a funny bone, because it got wide linkage and discussion and became the week's top-rated video.

Then, it was removed from YouTube, "due to a copyright claim by a third party."

Photographer Lane Hartwell says she objected to use of her photograph of Valleywag's Owen Thomas, so she sent a DMCA takedown notice to YouTube. Hartwell says she owns copyright in the image and did not license its use. In response, YouTube appears to have disabled the video pursuant to its copyright policy (perplexingly, it did not identify the "third party" sender of the complaint.)

Now, the video is back, in a revised version that omits Hartwell's photograph.   read more »

Yesterday, Best Buy sent a cease-and-desist letter to Scott Beale of Laughing Squid for reporting on an "Improv Everywhere" prank and their sales of T-shirts mocking the Best Buy logo. Best Buy claimed the post infringed its trademarks and copyrights by "promoting" sales of a T-shirt that mocked the Best Buy logo. Laughing Squid promptly posted the C&D, where it was picked up by BoingBoing and Slashdot. But Best Buy seems to have learned from the hubub, and sent its apologies a day later:

We appreciate your clarification of the nature of your posting. We do object to sales of T-shirts or other products bearing a logo which violates our trademarks or copyrights or other misuse of our logo in commercial ventures. However, we do not object to fair and accurate reporting of facts, and respect the First Amendment rights of Laughing Squid and other bloggers to provide articles or commentary on current events. Now that we have a better understanding of your website, we regret sending you the demand letter.

It's good to see a company recognize the distinction between reporting and trademark infringement and drop its threats. We have to say, though, the T-shirts give "trade dress" claims a whole new meaning.

If it's fall, these must be cease-and-desists for Black Friday ads. This year, they seem to be coming earlier than ever, as Wal-Mart sends pre-notifications against future posting. I put my analysis into a Chilling Effects Weather Report

Meanwhile, Michael Geist has the low-down on the overbroad copyright demand (PDF) that has shuttered the International Music Score Library Project. Despite vetting all submitted music for public domain status in Canada, where he runs the site, the IMSLP operator got a complaint that he was making scores available to jurisdictions where they were still under copyright -- talk about misusing disharmony.

The Harvard Crimson has been reporting on the Harvard Coop’s silly claims of “intellectual property” against those who come to the bookstore to compare prices. It’s escalated all the way to calling the cops, who wisely refused to throw students out of the store.

A terrific clinical student at the Berkman Center helped us to write an op-ed on the limits of copyright, which the Crimson ran today:

We’re not sure what “intellectual property” right the Coop has in mind, but it’s none that we recognize. Nor is it one that promotes the progress of science and useful arts, as copyright is intended to do. While intellectual property may have become the fashionable threat of late, even in the wake of the Recording Industry Association of America’s mass litigation campaign the catch-phrase—and the law—has its limits.

Since the Coop’s managers don’t seem to have read the law books on their shelves, we’d like to offer them a little Copyright 101.

Copyright law protects original works of authorship—the texts and images in those books on the shelves—but not facts or ideas. So while copyright law might prohibit students from dropping by with scanners, it doesn’t stop them from noting what books are on the shelf and how much they cost.

CrimsonReading.org does students a real service by helping them to compare prices efficiently. Harvard should support them in their information-sharing efforts, rather than endorsing the Coop’s attempts to cut off access to uncopyrightable facts.

Author Denise McCune posts a great account of the workings and failings of the DMCA's notice-and-takedown procedures.

As Cory Doctorow has also reported on BoingBoing, the VP of the Science Fiction and Fantasy Writers of America sent an error-filled takedown complaint to text-sharing site Scribd, causing removal of many non-infringing postings including reading lists suggesting great science fiction, and Cory's own novels, which he's CC-licensed for free redistribution.

The DMCA safe-harbor is most charitably described as an intricate dance for all parties involved: the copyright claimant, the ISP, and the poster. When the dancers are synchronized, its notice, takedown, and counternotice steps give each party a prescribed sequence by which to notify the others of claims and invite their responses. That's why the DMCA requires the claimant to identify the copyrighted works, specify alleged infringements with "information reasonably sufficient to permit the service provider to locate the material," and state good faith belief that the uses are unauthorized. When a copyright claimant misses one of those key elements, he starts stepping on toes.

The service provider isn't obliged to respond to deficient notices, but if a notice contains all the right formal elements -- even if it's factually wrong about copyright ownership or copying -- the service provider must choose between taking down the material or losing its DMCA safe-harbor and facing potential lawsuits. Posters who believe their material is non-infringing or fairly posted can counter-notify and even file their own lawsuits for misuse of copyright claims, under sec. 512(f). I share McCune's hope that the brouhaha will help the SFWA to help authors express all their copyright interests, including that of free sharing:   read more »

I hope the SFWA's lawyers are sitting down with Andrew Burt and explaining how the DMCA actually works, so that actual, legitimate violations of copyright (on Scribd and on other sites) can get dealt with swiftly and promptly and the people who have asked SFWA to be their copyright representative can get infringing uses of their material removed. I'm also glad to see that the SFWA ePiracy Committee has suspended operations until they can investigate further -- and, hopefully, come up with an effective process and procedure that benefits both fair and/or transformative use while also protecting the rights of copyright holders to have control over where and how their material is posted -- whether that control is a more traditional "nobody gets to use this, period" or a Creative Commons-style authorization of transformative work.

The NFL just doesn't know when to stop. The Washington Post reports on a new NFL policy limiting journalists' use of video online:

In a move designed to protect the Internet operations of its 32 teams, the pro football league has told news organizations that it will no longer permit them to carry unlimited online video clips of players, coaches or other officials, including video that the news organizations gather themselves on a team's premises. News organizations can post no more than 45 seconds per day of video shot at a team's facilities, including news conferences, interviews and practice-field reports.

Now this policy isn't copyright-based -- the NFL doesn't have copyright in the un-fixed statements of its players and coaches -- but good old real property law. The NFL teams own their facilities, and with them have the right to exclude people physically, as trespassers. So the NFL is telling sportswriters, who depend on physical access to gather the background for their stories, they'll be barred at the gates if they use more than 45 seconds of video online.   read more »

As David posted, celebrity gossip site PerezHilton.com has battled ISP takedown over claimed copyright infringement. A key problem, the Houston Chronicle reports, is that site-owner Mario Lavanderia is already disputing those claims in federal court, where a judge refused to grant an injunction. Instead, as the judicial process properly works, Lavanderia must be proven a likely infringer before his speech is silenced.

The DMCA, however, offers copyright claimants an easy route around the niceties of judicial process -- make it too much of a nuisance for an ISP to deal with an accused infringer as a client, and get his site removed. And this underscores the precarious nature of our reliance on private infrastructure. Even though the DMCA insulates ISPs from liability once they've received counter-notification, copyright claimants can still shower them with complaints, and ISPs are still free to bow to risk aversion and refuse to do business with challenging customers. Those who challenge powerful copyright interests find themselves without practical ways to speak, even while they assert their legal rights.

From the Houston Chronicle:

Los Angeles photo agency X17 Inc. sued Lavandeira in federal court last year, asking for $7.6 million in damages. The suit claimed Hilton used 51 photographs without permission, payment or credit, including images of a pregnant Katie Holmes, Kevin Federline pumping gas and Britney Spears.   read more »