Have any suggestions for the 3 Count? Let me know via Twitter @plagiarismtoday.

1: High Court judge upholds Digital Economy Act

First off today, The High Court in the UK tossed aside legal challenges by two of the country’s ISPs seeking to prevent implementation of portions of the Digital Economy Act. The provisions at question would require ISPs to send warning letters and, eventually, disconnect suspected file sharers. The court ruled that the law is in line with existing EU law and tossed aside most of the ISPs challenges. The only upheld challenge was over the issue of cost, with the court saying that ISPs should not bear the cost alone. As such, a cost sharing plan has already been drafted and is awaiting government approval.

2: New York Woman Claims Copyright to Yankees Top Hat Logo

Next up today, a New York woman, Tanit Buday, is suing the New York Yankees claiming that her uncle created the “top hat” logo, which features a top hat perched atop a baseball bat, and that the team’s use of the logo is an infringement. The Yankees deny the infringement, saying they commissioned the work from her uncle in the 1930s. Buday is seeking all profits derived from the logo, which first starting being used in 1936.

3: The Guy Who Composed “da-da-da-da-da-da … Charge!” is Suing Everyone

Finally today, Bobby Kent, the man who claims to have penned the famous “Charge!” theme commonly used in sports stadiums, has filed suit against both ASCAP and all of the major league teams claiming that he was not paid royalties he was owed on the song for the past 30 years. However, Kent may face a significant challenge to his claim as others believe he didn’t write the number at all, instead, his version was based on an earlier work by the USC marching band more than 20 years prior. Kent is trying to get the other composers involved in the suit, which the L.A. Lakers have already settled for $3,000.

Suggestions

That’s it for the three count today. We will be back tomorrow with three more copyright links. If you have a link that you want to suggest a link for the column or have any proposals to make it better. Feel free to leave a comment or send me an email. I hope to hear from you.

Want the Full Story?

Tune in every Wednesday evening at 6 PM ET for the live recording of the Copyright 2.0 Show or wait and get the edited version Friday right here on Plagiarism Today.

The 3 Count Logo was created by Justin Goff and is licensed under a Creative Commons Attribution License.

It is Friday again and that means that it is time for another episode of the Copyright 2.0 Show.

It was a week of controversy in the copyright world with a letter from ASCAP sparking a war of words between the organization and various copyleft groups. Likewise, a debate between a Canadian Minister turned ugly after some choice words and several artists found themselves accused of plagiarism.

Perhaps most controversial of all we end the show on the tale of two naked cowfolk trying to make their name.

This week’s stories include:

• ASCAP Attacks Creative Commons, EFF
• Canadian Copyright Debate Turns Ugly
• Time and Politico Republish a Rolling Stone Article
• Kanye West and Drake Both Sued for Copyright Infringement
• Naked Cowboy Threatens Naked Cowgirl

You can download the MP3 file here (direct download). Those interested in subscribing to the show can do so via this feed.

Show Notes

About the Hosts

Jonathan Bailey

Jonathan Bailey (@plagiarismtoday) is the Webmaster and author of Plagiarism Today (Hint: You’re there now) and works as a copyright and plagiarism consultant. Though not an attorney, he has resolved over 700 cases of plagiarism involving his own work and has helped countless others protect their work and develop strategies for making their content work as hard as possible toward their goals.

Patrick O’Keefe

Patrick O’Keefe (@iFroggy) is the owner of the iFroggy Network, a network of websites covering various interests. He’s the author of the book “Managing Online Forums,” a practical guide to managing online communities and social spaces. He maintains a blog about online community management at ManagingCommunities.com and a personal blog at patrickokeefe.com.

1: Copyright War Escalates With NMPA Joining ASCAPs Attack on Free Culture

First off today, a letter from American Society of Composers, Authors and Publishers (ASCAP) to its 300,000+ member artists has stirred controversy by claiming they need money to fight enemies of copyright including the EFF, Publick Knowledge and, most controversial of all, Creative Commons. The letter has lead to a backlashing, including to at least some ASCAP artists threatening to withdraw, but another group has joined the chorus. A speech by the CEO of the National Music Publishers Association (NMPA) took a similar tack against the groups as well. That, in turn, makes this an issue that is likely to linger for some time.

2: Led Zeppelin Sued for Alleged Plagiarism of Dazed and Confused

Next up today, Led Zeppelin’s Jimmy Page is being sued by folk singer Jake Holmes over the Zeppelin song “Dazed and Confused”. Holmes registered the song in 1967 and renewed that registration in 1995. Holmes is widely credited with authoring the song and the line between Page and Holmes is well known, with Holmes having opened for Page in 1967. What is unclear is why Holmes waited some 40 years to raise the issue in court, which limits him only to royalties for the last three years.

3: Warner Music Group Taps MTV For Content Partnership And Video Advertising Sales

Finally today, Warner Music Group has signed a content partnership with MTV, giving MTV exclusive rights to sell ad inventory around WMG music, including on YouTube. WMG will, in turn get the right to promote artists on MTV channels, including MTV, VH1 and CMT. This deal comes after WMG regained control of advertising around its videos on YouTube.

Suggestions

That’s it for the three count today. We will be back tomorrow with three more copyright links. If you have a link that you want to suggest a link for the column or have any proposals to make it better. Feel free to leave a comment or send me an email. I hope to hear from you.

Want the Full Story?

Tune in every Wednesday evening at 6 PM ET for the live recording of the Copyright 2.0 Show or wait and get the edited version Friday right here on Plagiarism Today.

1: Pirate Bay Founding Group Disbands

First off today, Piratbyran, the pro-piracy group most famous for founding The Pirate Bay, has disbanded. The group, which founded in 2003 as a response to Antipiratbyran, a Swedish anti-piracy outfit, says they no longer feel needed and that they have successfully “normalized” the use of file sharing networks. The group also suffered the death of one of their founders, which a spokesperson also partially attributed the closure to.

2: Swedish ISP Blocks The Pirate Bay Following Injunction

Next up today, Swedish ISP Black is in the center of a copyright-related storm. Last year the ISP was a bandwidth provider for The Pirate Bay before an injunction prevented them from doing so, temporarily shutting down the site. The ISP appealed the decision, the result of which was just handed down, and the court reaffirmed the original decision. However, Black interpreted the new injunction as being more broad, requiring them to block their regular customers from accessing the site, which they did. Strangely though, a representative from the Appeals Court has responded saying that is not the case and the ruling only dealt with hosting the site, not visitors accessing it. Currently The Pirate Bay remains blocked by Black.

3: Copyright Fee Crackdown Has Coffeehouses Pulling Plug On Open Mics

Finally today, in Massachusetts, more and more coffee shops are having to abandon their open mic nights or change them to “no covers” mic nights due to increasing fees from various performing rights organizations. Coffee shops, which would be required to get licenses from all three of the major PROs (ASCAP, BMI and SESAC) are no longer able to afford the 300-400 dollar per year fee for each of the agencies. Though shop owners support content creators and rightsholders, they claim that fees are simply too high and are seeking out alternatives.

Suggestions

That’s it for the three count today. We will be back tomorrow with three more copyright links. If you have a link that you want to suggest a link for the column or have any proposals to make it better. Feel free to leave a comment or send me an email. I hope to hear from you.

Want the Full Story?

Tune in every Wednesday evening at 6 PM ET for the live recording of the Copyright 2.0 Show or wait and get the edited version Friday right here on Plagiarism Today.

1: Google, Twitter go to bat for Theflyonthewall

First off today, financial news site Theflyonthewall is getting some help in its case against Merrill Lynch, which sued the company successfully for writing about information in Marrill Lynch’s research reports. The judge in the case found the Theflyonthewall violated Lynch’s “hot news” rights. Hot news is an early 1900s doctrine that provides limited copyright-style protection to news and facts gathered at expense, in this case forcing Theflyonthewall to delay reporting on Lynch’s research. The case is currently on appeal and Google and Twitter have both filed briefs in the case, calling “hot news” outdated and saying it is not in line with the current news ecosystem.

2: Google Targeted For Linking To Infringing Songs

Next up today, in another story involving Google, the search giant has been targeted for a takedown notice by the BPI. the British equivalent to the RIAA. But while that isn’t altogether unusual, what is strange is that they are demanding removal of several different songs across a variety of digital locker sites and indicating that the root URL of these sites was infringing as well. This has led many to hypothesize that BPI may be putting Google on notice before preparing a lawsuit over Google’s linking to these sources. While this may or may not be true, this comes as Britain is dealing with the Digital Economy Act, which asks ISPs and search engines to do more to stop copyright infringement.

3: ASCAP Files 21 Copyright Suits Against Bars and Clubs

Finally today, the American Society of Composers, Authors and Publishers filed suit on Monday against 21 bars and clubs across the country for performing songs in their catalog without a license. ASCAP, which collects royalties for song writers, has a licensing system for bars and clubs which wish to have performers sing songs in their catalog. Locations that don’t license the content and continue to present such music run the risk of being sued by ASCAP.

Suggestions

That’s it for the three count today. We will be back tomorrow with three more copyright links. If you have a link that you want to suggest a link for the column or have any proposals to make it better. Feel free to leave a comment or send me an email. I hope to hear from you.

Want the Full Story?

Tune in every Wednesday evening at 6 PM ET for the live recording of the Copyright 2.0 Show or wait and get the edited version Friday right here on Plagiarism Today.

1: Justice Dept to Google Books: Close, But No Cigar

First off today the Department of Justice has finally made its opinion of the revised Google Book Search settlement known and, though it found a lot of improvements in the revised deal, it still expressed grave concerns, especially that the settlement goes far beyond the scope of resolving past actions. This casts the revised settlement into doubt and makes the future of this case very uncertain.

2: AFACT Demands Govt Curb Online Piracy

Next up, the Australian Federation Against Copyright Theft (AFACT) has asked the government to step in following a recent court ruling which found that Australian ISP iiNet was not liable for infringement by its users and had no obligation to step in. Members of the government have said that they are monitoring the situation closely and are reviewing the situation.

3: Bruce Springsteen Sues NYC Pub for Copyright Infringement

Finally today, ASCAP has filed a suit against Connolly’s Pub in New York City saying that the pub had bands cover Bruce Springsteen songs but failed to pay the proper licensing fees. Springsteen however, though listed as a co-defendant, has said he had nothing to do with the lawsuit and has requested that his name be removed from it.

Suggestions

That’s it for the three count today. We will be back tomorrow with three more copyright links. If you have a link that you want to suggest a link for the column or have any proposals to make it better. Feel free to leave a comment or send me an email. I hope to hear from you.

Want the Full Story?

Tune in every Saturday morning for the live recording of the Copyright 2.0 Show or wait and get the edited version Monday morning right here on Plagiarism Today.

1: Digital Economy Bill: Three Strikes And You… Pay?

First off today UK’s controversial Digital Britain legislation may be going through some changes. The bill, which would among other things allow for disconnections and throttling of repeat file sharers after two warnings, may be taking a change in tone as a recent amendment that has been proposed would allow an alleged infringer to keep his Internet access but to do so only if he or she paid a fee.

Another amendment under consideration may also place the value for this content the same as if it had been purchased from an Internet retailer, meaning one illegal copy of a song would equal one lost sale. Tracks that were shared before an official release would receive a 10x valuation and those that were not released in the same format would receive a zero valuation.

It’s an interesting idea that marks a shift in the “three strikes” debate. The Digital Britain legislation would consider such options if they were deemed necessary after an evaluation and education period had expired.

2: US Music Royalties’ Collector Sues T-Mobile Over Ringback Tones

Next up today, Broadcast Music Inc. (BMI) has sued T-Mobile’s U.S. operation claiming that it has failed to pay the necessary licensing fees for the ringtones it sells to consumers.

According to BMI, which licenses music for public performances on behalf of publishers, songwriters, etc., T-Mobile, and other mobile phone providers need to secure public performance rights for ringtones as they are often heard in public. Others, including the EFF, have strongly disputed that theory.

This is similar to a lawsuit last year filed by American Society of Composer, Authors and Publishers (ASCAP), a similar organization, against AT&T. Verizon agreed to pay a $5 million interim licensing feed to ASCAP based on similar threats.

Clearly this issue is going to get its day in court and I know many will be watching to see what the results are as it raises new questions about user liability for allowing their ringtones to play in public as well as other non-profit public performances of music.

3: Grooveshark Sued By Another Record Company

Finally today, free music streaming service Grooveshark has found itself being sued yet again, this time by Universal Music, who accuse the site of making available pre-1972 recordings from its catalog, including from the Jackson 5 and Buddy Holly, and not paying royalties on them.

This comes after Grooveshark successfully settled a suit with the record label EMI over similar allegations.

According to Grooveshark, they pay royalties for all the songs streamed over their service, which are uploaded by users, but many record labels have disagreed with this assertion.

Suggestions

That’s it for the three count today. We will be back tomorrow with three more copyright links. If you have a link that you want to suggest a link for the column or have any proposals to make it better. Feel free to leave a comment or send me an email. I hope to hear from you.

Want the Full Story?

Tune in every Saturday morning for the live recording of the Copyright 2.0 Show or wait and get the edited version Monday morning right here on Plagiarism Today.

1: Reports: Google to Launch Online Bookstore

First off today, Google has made a stunning announcement at the Frankfurt Book Fair, saying that it is preparing to launch Google Editions, an online bookstore where the books will be available to anyone via a Web browser. This will enable readers to access their books on an Internet-connected device, including phones, netbooks and computers.

This move comes at a difficult time for Google in its book scanning project. It’s settlement with the Author’s Guild and various publishers has been sent back to the drawing board after concerns from the Department of justice and that was before the announcement of the bookstore. Previously Google was to simply display books, including in-copyright but out of print works, and make print on demand copies available.

It is unclear how this will fit in with existing book scanning projects but Google has said that they have no plan to launch a standalone reader for this project, instead focusing on making the books available via the Web.

2: AFACT: Our Evidence Not 100% Reliable

Next up today, the Australian Federation Against Copyright Theft’s (AFACT) trial against iiNet has found itself in the news again. This time as an AFACT representative admitted that the evidence collection techniques it uses are not 100% reliable.

AFACT, which represents various copyright industries in Australia, sued iiNet, an ISP for, in its view, not doing enough to stop copyright infringement by its subscribers. iiNet, in turn, has claimed that there was nothing more it could have done.

According to testimony, the evidence gathered by AFACT is not completely reliable because many of the public records are out sometimes of date. This casts some doubt on the evidence of infringement presented by AFACT though records provided by iiNet do show that at least some infringement occurred, though there are discrepencies between the lists, which caused iiNet to accuse AFACT of exaggerating its claims.

The trial is ongoing and is expected to last into next week.

3: Court Rules That Phones Ringing in Public Don’t Infringe Copyright

Finally today, the Electronic Frontier Foundation (EFF) is reporting that a judge has ruled in the ASCAP v. Verizon case that playing a ringtone in public does not require the payment of a performance royalty. According to the court, all public playing of music without the expectation of a profit does not require such a royalty and that also protects families singing Happy Birthday, cars playing music loudly and taking a stereo to the park.

The American Society of Composers Authors and Publishers (ASCAP) collects those royalties for distribution had claimed such plays did require payment and even pushed Verizon into paying a $5 million interim license fee. Verizon petitioned the court to determine what a reasonable licensing fee would be and the court has now come back saying that one is not necessary.

The carriers already pay a mechanical royalty for the selling of the actual copy, making the potential ASCAP royalty a “double dip” by which carriers would pay two separate fees.

Suggestions

That’s it for the three count today. We will be back tomorrow with three more copyright links. If you have a link that you want to suggest a link for the column or have any proposals to make it better. Feel free to leave a comment or send me an email. I hope to hear from you.

Want the Full Story?

Tune in every Saturday morning for the live recording of the Copyright 2.0 Show or wait and get the edited version Monday morning right here on Plagiarism Today.

photo credit: stevendamron

Today, August 13, is my birthday. Like so many birthdays before I expect fully that my family will call me up and sing a very familiar song, Happy Birthday to You.

Though few are familiar with my aunt’s rendition of the song, which is done in a very convincing Donald Duck voice, the song itself is possibly the best known tune in the English language, or even the world.

However, if tonight my wife and I go to a restaurant and the staff decides to sing a song (meaning my wife has played a very mean joke) it won’t be Happy Birthday to You (HBTY) they sing. The reason is simple, they would have to pay money to use it and it is cheaper to come up with a new song and avoid the issue altogether. This is because, at least according to popular convention, the song is copyrighted and any use of it for a commercial work requires a licensing fee.

But despite the fact restaurants and movies both avoid the song as much as possible, many movies use “For He’s a Jolly Good Fellow” instead, the song is big business. Generating an estimated $2 million revenue per year, approximately 1% of all song royalties awarded.

Yet, it might all be an illusion, a licensing scheme for a song without any copyright to protect.

Background

According to Snopes, HBTY began life as “Good Morning to All” and was written by the Hill sisters, Mildred J and Patty Smith. It began life as a song for teachers to sing to a kindergarten class morning and, though the melody is the same (save a split note at the beginning of each line to accomidate two-syllable word “Happy” instead of Good”), the lyrics were notable different.

Good morning to you,
Good morning to you,
Good morning, dear children,
Good morning to all.

What happened next is murky and largely unknown. Over the next forty years, the song became very popular but the lyrics changed, first to “Good Morning to You” and then to the better known HBTY version. Who changed them and when remains a mystery.

What is known is that in 1934 the Hill sisters upset with the unpaid and unattributed use of their song in a musical “When Thousands Cheer”, filed suit. Though the case never went the distance and was settled before a judgment was rendered, the Hill sisters felt confident enough in their ownership of the copyright of HBTY that the work was published and copyrighted a work for hire by Preston Ware Orem, who was credited for writing the lyrics, for the Summy Company, the publisher of “Good Morning to All”.

Currently, after a series of deals and buyouts, the copyright is held by Time Warner and its licensing is handled by ASCAP.

The original copyright was supposed to have expired in 1991 but the Copyright Act of 1976 extended the work’s copyright to 75 years after publication and the Copyright Extension act of 1998 added another 20 years. As such, the copyright will not expire until until 2030.

Until then, though family members, including my aunt, are safe when they sing the song, those that with to use it for commercial purposes are pushed to pay high royalties.

Happy Birthday To No One

If it seems odd to you that a song that is 115 years old, at least, is still copyright protected, you are not the only one.

According to a recent research paper, the copyright in the song might be just an illusion. There are several potential challenges to the copyrightability in the song including:

1. Unoriginal: The song bears strong resemblance to several works that came before it, including “Happy Greetings to All” and “Good Night to You All”.
2. Dubious Control: Since the 1934 case never made it to a judgment, it is unclear why the sisters and their publishers had the right to register the copyright in HBTY. To date, no court ruling has declared the Hill sisters, or those that came after them, the rightsholders in the song.
3. Renewal Issues: Prior the Copyright Act of 1976, a renewal was required after 28 years to maintain copyright. It is unclear if the renewal was properly filed, filed by the correct party in a prompt manner. As such, the work may have long since slipped into the public domain.

The list of potential issues go on, but, despite the possible legal challenges, the song continues to rake in millions per year. The reason is that it is cheaper to license the song, even at the high rates, allegedly as high as $10,000 per use in a movie, than it is to litigate and possibly lose.

In short, answering the question of HBTY’s copyright status would cost more than the licensing fee, making it cheaper and much faster to pay up and move on.

Bottom Line

Is HBTY really copyrighted? No one knows for certain. Though it seems doubtful and as if there might be some very strong legal challenges to the copyright, until someone takes the matter to court and gets a judge to rule on it, there is no solid answer.

What is clear is that Time Warner has a money printing machine in the song. Two million per year is a tidy sum of money for a song with roots that go back well over a century. However, because of this, how we interact with and use the song is severely limited. That, in turn causes people to evaluate how much the copyright system we have benefits the pubic and if it is being used fairly.

The good news is that we don’t have to worry about paying royalties when we sing the song at our family table. This means that my aunt is safe from getting a letter from ASCAP.

Disney, on the other hand…

1: Embedding a YouTube Video May Cost You a Bundle in ASCAP Bills

Emboldened by a recent court victory that found YouTube liable for back royalties audio used in its videos, ASCAP, American Society for Composers Authors and Publishers, has in turn begun to hit up Web sites for royalties based upon their embedding of YouTube clips.

To be clear, ASCAP has said it will not be seeking licenses from those who embed YouTube clips in solely personal blogs, but those who embed such clips on commercial sites, such as Jason Calicanas’ Mahalo, might be expecting a letter in the mail.

The matter has already broke out on Twitter, where Calicanas first announce he had received the letter, leading to a new hashtag #ascapfail. Others have reproted receiving similar letters. Previously, YouTube told recipients of such letters to just direct ASCAP to YouTube but now it is much less clear if YouTube will be of much help.

2: Hackers Undermine Piracy Evidence With Hadopi Router

According to some hackers in France, the country’s new three strikes law, in addition to a constitutional hurdle that the new law is designed to overcome, may have yet another issue. According to the report on Torrentfreak, they have created a tool that is designed to crack passwords on secure wifi access points and use those for file sharing.

The law, as it is written now, allows a judge to file an Internet use up to 1,500 euros and disconnect them for four weeks if they are negligent in allowing their network to be broken into and use for piracy. This router, theoretically, would allow hackers to use the access of non-negligent wifi users, thus confusing things further.

3: Look Familiar?

Finally today, to end Friday on a lighter note, Brandon at iCodeBlog has a very amusing tale of copyright infringement.

As do many coding blogs, Brandon’s blog uses tutorials to help teach some of the basics. To that end, Brandon posted a sample of a very simple iPhone “Tennis” game with instructions on how to make it.

So imagine his surprise when he found that exact application for sale for 99 cents in the app store.

According to Brandon, a company by the name of BlaBlaIncTech uploaded his app as a wholly original work and was selling it. The application is no longer available in the App store, likely pulled due to the copyright issues.

Still, it says some pretty negative things about the iPhone App Store when a quick tutorial app can get put online and charge a dollar per download…

Suggestions

That’s it for the three count today, we’ll be back tomorrow with three more copyright links. If you have a link that you want to suggest a link for the column or have any proposals to make it better. Feel free to leave a comment or send me an email. I hope to hear from you.

Want the Full Story?

Tune in every Saturday morning for the live recording of the Copyright 2.0 Show or wait and get the edited version Monday morning right here on Plagiarism Today.