David Post over at Volokh.com lends his (blogging) voice against the international cabal (and I don't feel that such a phrase is hyperbole in this instance) that is trying to foist a stricter copyright regime throughout the world via the ACTA treaty.

Read it here:

http://volokh.com/2010/03/26/outrageous-treaty-nonsense-or-the-copyright-tail-wagging-the-internet-dog/

Studio publicity execs were unimpressed by the move. "It's a terribly analog way of thinking in a digital world," said one studio PR chief. "It's just a totally unrealistic response, since if we've learned anything about the flow of information these days, it's that it gets out in all sorts of uncontrollable ways. The minute we have a meeting or make a decision, it's up on someone's blog. We're not the announcer anymore. We're the responder to what someone's already written. All we can do most of the time is damage control."

Read about what he is referring to here:

http://www.laobserved.com/archive/2010/03/variety_threatens_studios.php

David S. Olson of the Boston College Law School has an important new law article that should be must-reading for every federal judge out there:

First Amendment Based Copyright Misuse

Abstract:

We are at a crossroads with respect to the under-developed equitable defense of copyright misuse. The defense may go the way of its sibling, antitrust-based patent misuse, which seems to be in a state of inevitable decline. Or - if judges accept the proposal of this Article - courts could reinvigorate the copyright misuse defense to better protect First Amendment speech that is guaranteed by statute, but that is often chilled by copyright holders misusing their copyrights to control other's speech.

The Copyright Act serves First Amendment interests by encouraging authors to create works. But copyright law can also discourage the creation of new works by preventing subsequent creators from using copyrighted work to make their own, new speech. Courts have long recognized this inherent tension, and have also recognized that the conflict should sometimes be decided in favor of allowing a subsequent speaker the right to make unauthorized use of others' copyrighted works. Accordingly, courts created, and Congress codified, the fair use defense to copyright infringement, which allows unauthorized use of copyrighted works under certain circumstances that encourage speech and creation of transformative works. The problem with fair use, however, is that the informational uncertainties and transaction costs of litigating the defense make the fair use right unavailable to many as a practical matter. Subsequent creators are left open to intimidation by copyright holders threatening infringement suits. By decoupling the copyright misuse defense from its basis in antitrust principles and basing it in First Amendment speech principles, the legal protections for fair use shift from theoretical rights to practical rights for many. Copyright misuse has two deterrent features that will allow fair use as a practical right. First, a copyright holder's misuse of its copyrights against anyone can be used to prove the defense of misuse. Second, once misuse is found, the copyright owner loses its ability to enforce its copyright against everyone, at least until the misuse is cured. Thus, by defining as copyright misuse the unjustified chilling of speech that some copyright holders perpetrate, the misuse defense will encourage important speech rights that are currently under-protected.

Download the whole thing here:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1574385

[H/T: Larry Solum]

After reading this article, I am left with the thought, "A pox on all of their houses!".

Current copyright law not only fails in its basic function in maximizing the creation and distribution of new works, but it also happens to be disastrously constructed. With more and more creations now being considered 'derivative works', the law now prevents any clear certainty as to who owns what without going through a lengthy and expensive litigation process.

When it comes to our tools of culture and speech, the one area of law that should be easily accessible to all should be IP laws. Sadly, that is not the case. It has become little more than a self-justified business to employ IP attorneys - the 21st Century's breed of ambulance chasers.

Read the sorry tale here:

http://www.nytimes.com/2010/03/21/business/21marvel.html?pagewanted=1

Take a look at some the great works of Dave Devries from his "Monster Engine" project.

Given the fact that:

1. There is no doubt that the children's original doodles are protected by copyright for their entire life, plus 70 additional years.

2. There is no doubt that Devries' paintings of the doodles are 'derivative works' stemming from the original creations of the children.

Do you believe that Devries should be forced to get formal copyright releases from each and every one of the kids in question? Do you think he has done so? If so, should they be able to repudiate their copyright agreement when they turn 18 since many jurisdictions allow minors to repudiate contracts signed before they reach 18? If so, should they be able to take Devries's work out of circulation?

Do you think that the children should all share in the royalties from books, art and showcases that Devries produces for the rest of their lives (and beyond - for 7 decades)? Do you think that is in fact the case of what is going on? If Devries hasn't gotten a copyright release and/or isn't paying royalties, do you feel that he is somehow "exploiting" these kids or "stealing" from them?

If you answered 'No' to any of these questions, why not? Given how we know copyright law operates with respect to works created by media corporations, shouldn't it apply similarly here? Or is copyright law only supposed to be for the "benefit" of authors when they are attached to big businesses backed by the legal system?

After all, some commenters on this site have argued that one should not be able to make an entirely new James Bond film without permission due to copyright restrictions. I presume that The Monster Engine should be forced to jump through the same legal hoops, no?

I can't help but suspect that there is some major hypocrisy at work here in how copyright law is selectively applied in order to benefit special interests at the expensive of incentives for maximizing the creation and distribution of new works. (And please spare me the 'fair use' argument. I would completely agree that this should be considered fair use. But if it is, then one must concede that fair use should be applied by the courts far more generously that it currently is - so much so that it would effectively altogether omit the copyright protections which currently prevent the creations of 'derivative works'.)

Farhad Manjoo over at Slate has a great article on the issue.

A sample of it:

With this lawsuit, Apple is standing in the way of [the] future.

It's a dangerous strategy. Patent lawsuits take years to wind through the courts, but when this one is finished, no good will have come from it. Apple's move is terrible for consumers and businesses that rely on smartphones, it's bad for mobile-software developers, and it's obviously not great for Apple's competitors. The suit can't do much to help Apple, either, especially if it sparks an industrywide patent war. Apple's competitors also hold a wide portfolio of mobile-device patents, and I'm sure that they all have their legal departments working overtime to search for any claims that the iPhone and iPad might be violating. Apple's move thus casts a cloud of uncertainty over the entire industry: Should you buy an Android phone or build apps for the Palm OS if a judge might one day declare those systems illegal?

Read the whole thing here:

http://www.slate.com/id/2246902/

Because it takes well over 8 years of litigation and thousands of dollars for an Appeals Court to determine that attaching a piece of memorabilia to a trading card is 'obvious' and thus, not patentable.

But check this - one of the judges dissented from that conclusion as a matter of law. No...really. He felt it was possible for a jury to think otherwise.

Read the PDF of the decision for yourself here.

The U.S. Federal Circuit, which usually goes out of its way to unjustly expand the contours of patent law, has issued a typically outrageous decision holding that a U.S. stamp which depicts a view of a public Korean War memorial violates the copyright of the sculptor who designed it.

The decision brought a strong dissent from Judge Pauline Newman who wrote:

The Korean War Veterans Memorial is a work of public art and a national monument. It was authorized by Congress, installed on the National Mall, and paid for by appropriated funds. My colleagues on this panel now hold that the persons who produced this public monument for the United States, under a contract which requires that copyright is in the United States, can nonetheless require the United States to pay damages for copyright infringement based on use of a photograph of the Memorial in snow on a postage stamp. This holding is contrary to the contract provisions, contrary to statute for works done in the service of the United States, contrary to copyright law, and contrary to national policy governing access to public monuments. I respectfully dissent from the court's holding that the United States is liable for infringement of an improperly obtained and unlawfully enforced copyright.

Read the full PDF decision (and dissent) here.

Via Courthouse News:

People are increasingly filing lawsuits over expired patents. An engineer's claim against Sigma-Aldrich, a chemical company, is the twelfth such claim filed this year in courts covered by Courthouse News. Lawsuits over labels marked with expired patents are not a new cause of action, but the sudden surge in such claims is new.

Harold Josephs sued Sigma-Aldrich in Detroit Federal Court on Tuesday, citing seven chemical products he claims the company falsely labels as patented, though the patents have expired.

Josephs, a professional engineer, says he sued in the public interest "to enforce the policy underlying the false marking statute, 35 U.S.C. §292."

Read more coverage on this topic from Courthouse News here.

Read the actual complaint itself in PDF format here.

(And hats off to Harold Josephs!)

Esquire has written a moving profile of film critic Roger Ebert. He has lost the ability to speak due to extended illness. Beyond relying extensively on his wife, Chaz, he now writes out messages on a pad and uses computer software to convert text to speech.

Page 6 of the profile describes the following sorrowful and disgraceful incident involving Ebert's on-line tribute to his professional cohort Gene Siskel who passed away years earlier:

Our eyes would meet, the voice reads from Ebert's journal, unspoken words were between us, but we never spoke openly about his problems or his prognosis. That's how he wanted it, and that was his right.

Gene Siskel taped his last show, and within a week or two he was dead. Ebert had lost half his identity.

He scrolls down to the entry's final paragraph.

We once spoke with Disney and CBS about a sitcom to be titled "Best Enemies." It would be about two movie critics joined in a love/hate relationship. It never went anywhere, but we both believed it was a good idea. Maybe the problem was that no one else could possibly understand how meaningless was the hate, how deep was the love.

Ebert keeps scrolling down. Below his journal he had embedded video of his first show alone, the balcony seat empty across the aisle. It was a tribute, in three parts. He wants to watch them now, because he wants to remember, but at the bottom of the page there are only three big black squares. In the middle of the squares, white type reads: "Content deleted. This video is no longer available because it has been deleted." Ebert leans into the screen, trying to figure out what's happened. He looks across at Chaz. The top half of his face turns red, and his eyes well up again, but this time, it's not sadness surfacing. He's shaking. It's anger.

Chaz looks over his shoulder at the screen. "Those fu " she says, catching herself.

They think it's Disney again that they've taken down the videos. Terms-of-use violation.

This time, the anger lasts long enough for Ebert to write it down. He opens a new page in his text-to-speech program, a blank white sheet. He types in capital letters, stabbing at the keys with his delicate, trembling hands: MY TRIBUTE, appears behind the cursor in the top left corner. ON THE FIRST SHOW AFTER HIS DEATH. But Ebert doesn't press the button that fires up the speakers. He presses a different button, a button that makes the words bigger. He presses the button again and again and again, the words growing bigger and bigger and bigger until they become too big to fit the screen, now they're just letters, but he keeps hitting the button, bigger and bigger still, now just shapes and angles, just geometry filling the white screen with black like the three squares. Roger Ebert is shaking, his entire body is shaking, and he's still hitting the button, bang, bang, bang, and he's shouting now. He's standing outside on the street corner and he's arching his back and he's shouting at the top of his lungs.

I have no words.

Read more: http://www.esquire.com/features/roger-ebert-0310-6#ixzz0fjocEDUe