Catherine Rampell reports another case of copyright overreach link here. This time a mother took a short video of her 13 month old bobbing in time with a song and put it on YouTube. Universal Music charged the song infringed its copyright and it was taken down, but now the mom is suing Universal for abusing copyright law. She makes a pretty reasonable argument to most of you who will read this--"The idea that putting a little video of your kid up on YouTube can mean you have to go to court, and maybe declare bankruptcy and lose your house, is just wrong,"

To be "fair and balanced," the article quotes Douglas Lichtman, a UCLA law professor who advises Viacom on copyright matters, "These companies are sending out 100,000 takedown notices, so of course once in a while there's going to be a fly caught in the ointment, Everyone's trying to be careful, though. They don't want the PR backlash that comes when they make a mistake." That of course is nonsense. The companies don't use any sense of what is reasonable or a significant violation. They don't want to spend the money to examine each of the violations and exercise good judgment. And most people fold, not wishing to bother pursuing the matter.

The article also suggests that another reason for takedowns is the desire to suppress criticism and cites an example among four other cases where the takedown notice was questionable. Another one involves copying a fashion design in the pattern of a fabric--extending copyright to protect fashion designs which are not patentable. Go to the article to read them.

Wired reports:

Disney, CBS, Microsoft, Fox, NBC, Viacom, Dailymotion, MySpace and Veoh Networks announced so-called User Generated Content Principles that appear aimed at stifling fair use. The announcement calls for the "implementation of state of the art filtering technology with the goal to eliminate infringing content on (user-generated content services), including blocking infringing uploads before they are made available to the public."

The Cartel's website can be found here.

Even if you accept current notions of copyright law, here is the biggest problem I have with this concept - It clearly anticipates that media companies will have a primary hand in defining what "fair use" is. This of couse is flat-out unacceptable. The entire concept behind "fair use" is that such "use" will be allowed even in face of express opposition by the copyright owner. Fair use is never "accommodated" as the Cartel suggests. It is instead superceded over express objections to the use of the material.

This is entirely unworkable since "fair use" is ultimately only defined by a court on a case-by-case basis after litigation has been brought forth. Even lawyers can never tell you if something is "fair use" or not. They can only make best guesses of what a court will decide (though their guesses are often disguised as conclusions based on their own biases of what they think fair use ideally ought to be).

Here are 5 different scenarios that all involve the same act of downloading a song:

1. To keep in my personal music library after being exposed to the song elsewhere.

2. To sample the artists work to determine if I might want to purchase it or other works at a later date.

3. To explore lyrics or aspects of the work for a journalistic/scholarly essay that I am working on regarding a history of the music genre.

4. To replace a defective CD that I bought in a store.

5. To replace a purchased CD that I lost or accidentally damaged on my own.

Which of these are "fair use"? The answer is - NOBODY KNOWS! (at least until you a court ruling in your particular case.) Recent court cases would strongly suggest that scenarios 1 & 2 probably won't be considered fair use, but even then, there might be specific facts in individual cases that might lead a court to rule otherwise (and such a ruling would have little use or practicality in terms of establishing precident for future cases with differing facts - even when the differences are hair-splitting). "Fair Use" can be an infinitely flexible concept that judges can use and abuse according to their personal tastes. Any lawyer who tells you that there is a bright line legal rule that prohibits any downloading of songs for personal use under all circumstances is simply smoking crack folks. The odds are certainly stacked against such defendants these days, but there is no bright line rule.

This much is certain, however: Media companies would consider all 5 scenarios to be copyright infringement with no "fair use" invovled. If they are the ones directing websites such as Youtube to remove content based on their edict, then their declaration that "fair use" ought to be "accommodated" is a hollow promise indeed.

Consumerist takes us to Great Moments In Commercial History: The Back Up, a patented gun rack for one's bed link here. Don't be surprised in bed by some intruder bent on no good. But patenting it? You can see the patent and all the backup as well link here.

Interesting reading here.

[Hat-tip: Supreme Court blog.]

Great News! The U.S. Patent Office has apparently rejected Amazon.com's patent on one-click shopping on obviousness grounds, after the original patent was challenged by New Zealand actor Peter Calveley. The post on CNet's news site is here.

James E. Bessen and new Nobel winner Eric Maskin maintain that the software, semiconductor, and computer industries have seen considerable innovation with little patent protection. When patents were granted to these industries starting in the 1980s, they demonstated no R&D increases or productivity gains. Here is the paper .

Thanks to Alex Tabarrok at www.marginalrevolution.com.

The 8th Circuit Court Of Appeals has not only struck an important blow for free speech, but they may have also prevented the idea of "fantasy sports" from becoming a corporate monopoly.

As the court states: "[T]he information used in CBC's fantasy baseball games is all readily available in the public domain, and it would be strange law that a person would not have a first amendment right to use information that is available to everyone."

Indeed. But then again the radical interpretations of 'publicity' rights have been quite strange all along.

PDF link of the decision here.

[h/t: How Appealing]

Dean Baker has an interesting discussion of the general subject of exchanging of copyrighted material, keyed to the Jammie Thomas jury trial which awarded $222,000 to the recording companies for downloading 24 songs, with a long set of comments from readers link here. The one new thing to me was this: "The recording industry was apparently able to track down this crime by hiring a high tech sleuth who has software that can monitor the files that people place on their computers." Since when does the RIAA have the right to monitor our internet activity? Big Brother has been watching all of us with more or less legal authority and with the justification of the War on Terror, but since when does anyone else have the right to do so?

I earlier suggested that if defendant Jammie Thomas was hit for over $3-million in fines for downloading music, she would have a good shot at challenging the verdict in constitutional grounds.

Her attorneys have decided to still challenge the $222,000 verdict on the same grounds. [PDF alert. h/t: Wired.com].

Good luck to her!

Columbia Law Professor Tim Wu has a fascinating article on areas of American law that are never inforced.

He doesn't tackle the issue of copyright piracy, but his essay gives obvious food for thought on the issue and where the future might be headed.

This series explores the black spots in American law: areas in which our laws are routinely and regularly broken and where the law enforcement response is … nothing. These are the areas where, for one reason or another, we've decided to tolerate lawbreaking and let a law duly enacted and still on the books lay fallow or near dead.

Why are there dead zones in U.S. law? The answer goes beyond the simple expense of enforcement but betrays a deeper, underlying logic. Tolerated lawbreaking is almost always a response to a political failure the inability of our political institutions to adapt to social change or reach a rational compromise that reflects the interests of the nation and all concerned parties. That's why the American statutes are full of laws that no one wants to see fully enforced or even enforced at all.

Full article link here.