2010 seems destined to be the year of the book. There is only time today to collect a handful of links to pieces that have caught my eye recently as I’ve been hopping around the country. That time exists because my university has declared a snow day – for the second day in a row. With another big storm arriving later today, we may lose a full week here in Pittsburgh. To keep me company, I’ve got a stack of … books.
James Patterson Inc. (NYTimes Magazine) (a long account of how James Patterson mass produces phenomenally successful commodities called books)
The Book Club With Just One Member (NYTimes, published in the same edition as the Patterson story) (an elegy for intimate one-to-one relationships between readers and texts)
Neither Luddite nor Biltonite (George Packer’s New Yorker blog, Interesting Times) (a Postman-esque rant against information technologies that disrupt long-form reading; follow the links to Packer’s original post, and to a reaction from Nick Bilton at the NYTimes Bits blog. Packer’s position seems of a piece with Nick Carr’s argument that Google is making us stupid.)
While broadening my literary horizons, but still remaining firmly in the pre-teen science fantasy camp, I’ve recently discovered a series of books by Cassandra Clare – the Moral Instruments trilogy (soon to be many more books than a trilogy). She writes for pretty much the same audience as Stephenie Meyer of Twilight fame so I haven’t strayed too far from my teenage girl tastes.
The interesting thing about Cassandra Clare is that her name is a pseudonym derived from a name she used as a popular fan fiction author online (Cassandra Claire). As a fan fiction author, she was both very popular and somewhat infamous for being involved in a contentious plagiarism debacle. Some of the commentary surrounding the plagiarism episode can be found here.
What struck me reading through some of the commentary was that it seemed that the concern about plagiarism was not generated by the authors/creators whose work Claire had allegedly plagiarised, but rather from other members of the fan fiction community who were disappointed with what they perceived to be a fellow author’s lack of ethics. Claire had borrowed lines from a number of sources – other writings, TV shows, movies etc – and maintained that she thought she had given appropriate attribution, but her attributions were not full or complete because she maintained that she couldn’t always remember exactly where she had seen or heard a particular line she had used. Others questioned whether she could have engaged in such large scale copying without intentionally and directly copying someone else’s work, so some people didn’t believe her defense of her own actions.
As someone who spends a lot more time thinking about copyright than plagiarism, this struck me as an interesting story because it does not deal with copyright holders protecting their economic rights, but rather with members of an online community concerned to enforce shared norms relating to morals and ethics. This is a side of the “creativity coin” that many of us don’t think about all that often. I found it to be useful food for thought.
I also wonder if this episode has had an impact – either positive or negative – on Clare’s popularity as a mainstream fantasy fiction writer. Her Mortal Instruments books have maintained a high position on various best-seller lists for many months. I wonder whether her history helped or hurt her as a mainstream author.
With thanks to Roberto Colon for passing this along to me, a federal court judge in Australia has held that an ISP is not liable for copyright infringements of its users. Full story here and here. The Australian copyright test for secondary liability is different from that in the U.S. and relies on a concept of “authorization”. This means in effect, or at least the court held, that third parties like an ISP are not obliged to protect copyrights in the same way that they may be under some of the American tests for secondary liability.
Many may know about the fight between Amazon and Macmillan publishing. Yes it is about e-books and pricing, and the death of an industry, the death of print, and heck throw in Death in Venice if you like. But the real move may have been to highlight something else Amazon is quite worried about: Google and the Book Settlement.
Would Amazon really refuse to carry all books from one of the largest publishers in the Untied States? As my friend John Scalzi pointed out (He was one of the first to notice the move, because his publisher is part of Macmillan, and his fans asked him why his books were not available almost immediately after Amazon’s move.), Amazon waited until late Friday to remove the Macmillan books. John thought that the timing was probably designed to mitigate any negative responses that might go Amazon’s way. I think John was correct, but I think this statement reveals a perhaps bigger reason for the bluff:
“We have expressed our strong disagreement and the seriousness of our disagreement by temporarily ceasing the sale of all Macmillan titles,” Amazon said. “We want you to know that ultimately, however, we will have to capitulate and accept Macmillan’s terms because Macmillan has a monopoly over their own titles, and we will want to offer them to you even at prices we believe are needlessly high for e-books.”
Just to repeat it: “Macmillan has a monopoly over their own titles, and we will want to offer them to you even at prices we believe are needlessly high for e-books.” Where else does monopoly and books arise? Ah yes, when Amazon (and others) opposes the Google Book Settlement.
I think this move provides an interesting, concrete example that will be offered to argue that the GBS will provide Google with power equal to or greater than Macmillan’s. The question is, if it is a monopoly as Amazon claims, why aren’t folks attacking all major publishers? Amazon may argue that Google will have a unique position in the e-book market, but those claims require more details if one is to sort them properly.
I love California, and I love the University of California. I am saddened by the recent financial problems the state and the entire education system faces. But I am more upset by what seems to be a failure of the education system: people who think 60s style protests are useful and wise responses to problems they helped create.
Sit-ins, threats, throwing food at Regents, and chants of the “What do we want? X! When do we want it? Now!” ilk remind me of a five year old throwing a tantrum; not intelligent people trying to change the system and take responsibility for their role in the problem. When I was at Berkeley, a professor noted that protesting the first Iraq war (especially in the Bay Area) was not as effective as the same thousands of people writing to Congress members and being clear where their donations and votes would go in the future. The same applies to the education funding problem.
Instead of putting all that great activist energy to campaigning for funding education, Californians have coasted on a system that cannot work without incredible growth. Californians cling to a broken property tax system, fail to push for better education funding, and back spending a billion dollars on prisons. Shame on us.
U.C. Berkeley’s alumni association sent me an email claiming close to 500,000 living alumni. That is but one campus in a system of 10 campuses. Now, add in the numbers of Californians who attend or graduated from the CalState and Community College system. Given the graduates, the current employees, and students at all the higher education campuses, there ought to be a focused, powerful political group that could move the state towards fixing its education funding problems. Rather than doing so, many of these folks waited until the state had no money and in a sense no choice about what to do to address the shortfall. The Regents and the students are finally joining together to voice their views in Sacramento. This type of action should have happened in the first place.
There’s a new joint venture in town: A website that aggregates academic research on IT policy, from IP to privacy, to network governance, to the cloud, to antitrust, to economic growth.
With thanks for one of my students for fowarding this to me, the Beijing No. 1 Intermediate People’s Court has today cleared Chinese search engine Baidu on claims of copyright infringement for deep-linking to music downloads that infringe copyrights. Reuters story here.
A school district in California has banned Merriam Webster’s Collegiate Dictionary (10th Edition) after a child found the definition for “oral sex” in its pages. The initial story made the decision seem a fairly done deal, but a later issued story indicates that the decision is under review. I wonder about the decision to first put “collegiate” dictionaries in fourth and fifth grade classrooms, but given that the dictionary is available online (including the definition in question), does the district really think it is doing anyone any favors?
Interestingly, the reason I am aware of Webster’s online presence (I tend to use Oxford’s dictionaries, myself, but they are all paywalled) is that the online version is regularly cited by federal and state courts when discussing definitions (I may do a study of this to see when the shift from printed dictionaries to online dictionaries took place and how extensive it is). If it’s good enough for the courts, shouldn’t it be good enough for the kids?
Naturally, I’m still thinking about copyright law in the context of the Twilight franchise – what else would I be doing on a Tuesday morning? I was looking again at some of the press coverage surrounding the young woman who was detained in custody for several days for making a three minute video-recording in an Illinois movie theater that contained footage from Twilight: New Moon. I posted previously about this here and here. Apparently, she was initially charged with (or at least detained for) criminal copyright infringement.
The woman who had made the recording had said that she had no intention to distribute the recording or to make any commercial profit from it – it was a purely personal record of her sister’s birthday party that included an outing to the theater to see the movie. I was recently looking at the Nimmer copyright treatise re criminal copyright infringement and noticed a few things I hadn’t picked up on previously, not being an expert in criminal aspects of copyright. Nimmer notes that there is some debate about whether intent (or “willful conduct”) on the part of the defendant is a requisite aspect of the criminal action and, if so, whether this refers to intent to copy or intent to infringe. Additionally, Nimmer doesn’t seem to say anything about whether fair use would be a defense to a criminal copyright proceeding. I’m interested in people’s views on intent and on the potential application of fair use in the criminal copyright context, particularly when considered outside the scope of large scale digital piracy, and within the context of using personal recording devices (eg cellphone cameras) for private purposes.
Nimmer does note that usually an intent to make a commercial profit is required as part of the criminal action, which makes me wonder on what basis the woman in Illinois could really have been subject to criminal liability – and of course she was released from jail after having been detained for two days. But I don’t know that much about criminal copyright liability and am interested in any light others can shed on the application of the legal principles relating to criminal copyright law to personal video-taping in movie theaters.
Most of the country is facing some rather grim weather. Classes have begun. Grades are in. The holidays are over. There is work to do. Many things may be getting you down. So I offer this tune as a small pick-me-up for those who may need it. If the music doesn’t work for you, perhaps the outfits and the early special effects will. Enjoy.
You couldn’t blame Lauren McClusky of Chicago if she were a bit squeamish about using her last name in this story without fear of reprisal from Ronald McDonald and his legal posse.
For McClusky, 19, finds herself at the center of a thorny dispute that involves a series of charity concerts she’s put on over the past three years. She dubbed the event “McFest” (more on that in a moment) — but McDonald’s sees that as an infringement on its trademarks, something the McDonaldland lawyers refer to as “the McFamily of brands.”
These include (deep breath): McPen, McBurger, McBuddy, McWatch, McDouble, McJobs, McShirt, McPool, McProduct, McShades, McFree, McRuler, McLight — and even the prefix “Mc” itself.
“But not McFest,” pointed out McClusky, who declined to change her last name for this story. “The whole reason I called it McFest in the first place is my name.”
Her original co-chair for the first McFest also shared the “Mc” prefix in her surname, so it seemed a natural. And indeed, not a single McDonald’s attorney seemed to object in 2007 and 2008, when McClusky’s McFests raised $30,000 for the Chicago chapter of Special Olympics.
But when McClusky applied to have the McFest name protected, McDonald’s filed an opposition. So instead of donating funds from her 2009 concert to Special Olympics, McClusky’s had to hire lawyers to answer a series of administrative proceedings McDonald’s filed with the U.S. Patent and Trademark Office. To date, it’s cost her roughly $5,000 — money she wishes had gone to Special Olympics kids instead of attorneys. …
McMakes me consider changing the names of my IP courses to McTrademark Law, McPatent Law, McCopyright Law and McIP McSurvey.
Judge Duffey of the Northern District of Georgia reminds us (and plaintiffs) of this in granting defendant’s motion for summary judgment on the issue of damages where defendants had copied text directly from plaintiff’s website, but removed it one day before plaintiffs registered their copyright. In this case statutory damages were clearly unavailable to the plaintiffs. Section 412 still allows actual damages to be recovered, but here the Court said actual damages were not proven because the plaintiff provided evidence of defendant’s gross revenues but failed to attribute any of these to the infringing activity (though it is not clear to me that this is the correct reading of section 412 504 which could also be read to put the burden on the infringer to show which profits were not attributable to the infringement; this latter point is one I need to look into a little, and I’ll post a follow-up at a later date). The case is Atlanta Allergy and Asthma Clinic, PA v. Allergy & Asthma of Atlanta, LLC, and it was decided on January 19, 2010 (the case, as you might imagine from the named parties, primarily involves a trademark infringement claim).
Late Monday afternoon, employees at O’Hara grocer Giant Eagle Inc. got test results showing some hash brown products sold by the retailer contained a bacterium that can cause a potentially serious infection.
Within hours, an automated system was busy calling more than 300,000 Giant Eagle Advantage Card holders who records showed had purchased the affected product. “We wanted to get the information out as soon as we knew about it,” said Michael Sealy, vice president of risk management services.
It was the first large-scale use of the grocer’s automated notification system. So far, so good. Officials said many customers have thanked the company for the calls.
Loyalty cards issued by grocers and other retailers have had their critics over the years, as some people worry about how much data the companies gather and others complain they shouldn’t have to give up personal information in exchange for supermarket discounts.
But the growing practice of using that data to publicize recalls has generally been well received, even as it serves as a reminder that a company knows about your secret love of beef jerky, Twizzlers, fresh spinach or hash browns.
Warehouse club operator Costco first used its automated phone notification system in November 2007, when a toy with a coating that could make children who swallowed it to “become comatose, develop respiratory depression or have seizures” was recalled.
For years, Costco had been mailing notices to members who’d bought recalled products, said Craig Wilson, assistant vice president of food quality and quality assurance. But the late 2007 case was the first time Costco’s computer systems were set up for the robocall notification. The system can make 870,000 calls an hour.
News reports since have cited other chains, such as Wegmans, Price Chopper and Kroger, as implementing similar systems. In February 2009, when tainted peanut butter was making people sick, the Washington, D.C., consumer advocacy organization Center for Science in the Public Interest wrote an open letter urging retailers to get on board.
It’s just hash browns, or peanut butter, so let’s not lose all perspective, and public health is a very important thing. But it is a very weird world that we live in when we accept grotesque deficiencies in our system of industrialized foodstuff production, then use those deficiencies to bootstrap arguments about why we should accept significant incursions into long-accepted domains of personal privacy. In other words, if we had good systems in place to make sure that that the potatoes weren’t contaminated, then we wouldn’t have to worry so much about the “innovative” ways in which personal data are being used.
For anyone who couldn’t make it to the domain name/online TM symposium at CWRU in the fall, the webcast is now available online. Some additional web resources on areas associated with the symposium topics (along with speaker bios) are available on the bottom of this webpage.
Erich Segal died the other day. He was famous (or infamous) as the author of “Love Story,” the book and then movie that gave us the line, “Love means never having to say you’re sorry.” The movie was a smash but is utterly forgettable; if you’re looking for a throwback experience featuring its star, Ryan O’Neal, then take a look at “What’s Up Doc,” with Barbra Streisand as his foil and Madeline Kahn as his wife. Streisand repeats the line, “Love means never having to say you’re sorry,” and O’Neal replies, “That’s the dumbest thing I’ve ever heard.”
Segal should have been better known for his classics scholarship, but he couldn’t escape Love Story. I took a course from him at Yale in the early 1980s, when he was still something of a celebrity and Al Gore, ostensibly an inspiration for O’Neal’s character, hadn’t yet invented the Internet. The topic was comedy. We read Plautus. Everyone should read Plautus; I’m grateful to Segal, because but for Erich Segal, I would never have discovered Plautus. But his lecturing style was a little frenetic, and when his mind got ahead of his speech, he reverted to basics. One day, in the middle of class, he blurted, “Comedy means never having to say you’re sorry.” Which may be true, but we were too busy laughing.
I thought of Erich Segal a year ago when I was writing a comment on Sprigman and Oliar’s piece on social norms among stand-up comics, and how (in their view) anti-plagiarism norms substituted effectively for copyright law in preventing joke theft and encouraging comic innovation. (Here’s a link to their piece and the various comments on it; don’t miss Sprigman and Oliar’s follow-up. The reviewers said they killed; rumor has it that there is an HBO special in the works!) Sprigman and Oliar’s thesis might be reduced to the proposition that copyright means never having to say you’re sorry, because “I’m sorry” is, presumably, part of the matrix of norms that govern informal creative communities.
Erich Segal, copyright scholar ahead of his time. RIP.
Bonus video: The Muppets play the Love Story theme.
With gratitude to Eric Goldman for drawing my attention to more opportunities to blog about the Twilight franchise, the U.S. District Court in California on January 12 granted a preliminary injunction to Summit Entertainment (the movie studio that produces the Twilight movies) for copyright and trademark infringement in relation to the unauthorized activities of a fan magazine. The decision (Summit Entertainment v Beckett Media, 2010 WL 147958 (C.D. Cal.)) is fairly unremarkable although there’s a few nice comments about the defendant acting outside the scope of an implied license by Summit to use publicity stills made available on its website. So maybe someone could come up with a good copyright exam problem based on this kind of scenario.
In other Twilight court-related news, there is/was an action also in California by a writer claiming that Stephenie Meyer plagiarised an earlier work by the plaintiff in writing the fourth book in the Twilight series, Breaking Dawn. The action was filed in August last year (based on copyright infringement), but I haven’t been able to track down what’s happened to it since. If anyone knows any further developments, I’d love to hear them. It sounds like this could be a useful example of a discussion of “levels of abstraction” in the copyright infringement context – or just a publicity stunt by a Stephenie Meyer wannabe…
