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

1: iCopyright Sues Associated Press For Breach of Contract, Unfair Competition

First off today, content tracking and licensing company iCopyright is now suing one of its former partners, the Associated Press, saying that the news service failed to complete the contract between the two by not promoting its licensing tools and has been developing a competing service using inside information. The AP has denied those allegations saying that iCopyright owes some $130,000 in unpaid fees and that was the cause for the contract termination. iCopyright is seeking an injunction against the AP’s “news registry” and monetary damages. Disclosure: I have done unpaid work with iCopyright and considered their Discovery service in my consulting practice.

2: Eircom Continues ’3-strike’ Policy

Next up today, Irish ISP Eircom has announced that it is continuing its “3 Strikes” procedure where it sends suspected file sharers warning notices when they are notified of infringement. This comes after competitor UPC’s recent court victory saying that such measures were not required under Irish law. However, though disconnection is an option and Eircom is sending out about 1,000 letters per week, the ISP has not disconnected a user and considers such a move to be a last resort.

3: ‘View’ Star Wins Copyright Case

Finally today, “View” co-host Elisabeth Hasselbeck has won her lawsuit against author Susan Hassett, who accused Hasselbeck of infringing on her cookbook “Living with Celiac Disease”. According to Hassett, Hasselbeck’s cookbook, “The G Free Diet” was too close to her own, prompting her to sue. However, the judge in the case disagreed saying that the was no substantial similarity between the two works, dismissing the case.

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.

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

1: Massive Judgment In World of Warcraft Copyright Infringement Case

First off today, Blizzard, the company behind the popular World of Warcraft roleplaying game, won a major judgment against Scapegaming, a company that Blizzard said was running an unauthorized World of Warcraft server. The judge in the case seemed to agree, awarding Blizzard, over $3 million in profits, a bit over $65,000 in attorney fees and $85 million in statutory damages. Scapegaming did not defend the lawsuit, which may indicate collecting the damages will prove nearly impossible.

2: Radio, RIAA: Mandatory FM Radio in Cell Phones is the Future

Next up today, though the RIAA and the National Association of Broadcasters may not agree on whether radio stations should pay royalties to labels, they are both backing a plan to require the installation of FM chips in all cell phones and other handheld electronic devices. According to the organizations, this gives consumers more legitimate choices for listening to music and aids in public safety as emergency broadcasts are sent out over FM frequencies. The Consumer Electronic Association, which represents manufacturers of such devices, opposed the idea.

3: AP Decides Not to LOL

Finally today, the Associated Press, apparently was in negotiations with Pet Holdings Inc. the owners of the I Can Has Cheezburger blog network, to bring the network into their fold. Negotiations supposedly began to break down after Ben Huh, the owner of Pet Holdings, had issues with the wording in the contract and the AP finally walked away after stating concerns about its integrity. Digital deals are becoming more common for the AP, including Yahoo, Google and the Huffington Post among others.

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.

1: Judge In AP-Shepard Fairey Fair Use Suit Suggests Settlement

First off today, the Shepard Fairey case has taken a very dark turn for Fairey as the judge in the case has indicated that the Associated Press, who is suing the artist claiming that his “Hope” poster of President Obama is an unlawful derivative of their photograph of him, will prevail in the case “sooner or later” and encouraged the two sides to reach a settlement. This nudging, however, did not sway the two sides much, with Fairey’s attorneys still saying he has a strong fair use case and the AP saying they wish to seek damages, despite the suggestion they be dropped. Fairey also faces potential criminal charges for evidence tampering in this case for allegedly hiding which image he used in the painting.

2: ‘Hurt Locker’ Sharers: Expect Docs Like this (Photos)

Next up today, the first letters from ISPs and law firms working with the U.S. Copyright Group have begun trickling down to end users and CNet has an image gallery showing what the letters contain, at least in the case of one Verizon subscriber. The notice includes a letter from the ISP about the subpoena and a letter from a law firm representing the U.S. Copyright Group, which in itself includes a settlement offer of $1,500 to avoid a lawsuit. The settlement offer increases to $2,500 in a matter of a few weeks. The person whose letter is being shown claims that his network is secured but he never downloaded the movie in question, “Far Cry” and does not know who could have.

3: China’s Plagiarism Problem

Finally today, Forbes has an interesting article about China’s academic plagiarism problem and how it ties in with the larger issue of intellectual property rights in the country. According to Forbes, the sense of community in China runs counter to much of the rest of the world’s view on intellectual property and that, in turn, leads to a lack of enforcement within the country, both on copyright/trademark/patent issues as well academic plagiarism.

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: Associated Press to build news registry to protect content

First off today, in a story from last week that gained a lot of traction over the weekend, the AP recently announced that it was taking new steps to track its work over the Web, announce its rights to its work and, if needed, protect its content.

The new system will use a series of microformats to affix data to AP content. This information can be processed by AP-certified tools and will be included on all AP-authorized sites. This content will do many things, including allow the AP to track where their content is available and label their work for various kinds of use.

The information is a bit sketchy at the moment, especially around the technical details, but the system has already been much derided and has become the stuff of ridicule. Including at least one parody version of the AP’s chart, which is included as a link in the article above.

2: Copyright Law Worries Game Companies

Next up today, as the new “three strikes” law begins to take effect in South Korea, which threatens to disconnect both file sharers and Web sites after two warnings of copyright infringement, most copyright holders are cheering the change. However, video game companies, which have enjoyed a boost due to online buzz, are worried it might hurt their industry.

The reason is that the industry has been helped by users posting screenshots and videos from various games, something that is now illegal under the law. Violators could have their accounts suspended for up to six months.

This has the potential to seriously hurt the fan sites that have sprung up over the years remixing and reusing video game content, but in a way that helps the industry, rather than hurts it.

3: Pirate Party’s copyright reform cannon could sink copyleft

Finally today, the Pirate Party has drawn fire from a seemingly unlikely source, Richard Stallman and the Free Software Foundation.

Stallman recently pointed out that, if The Pirate party were to get its way and limit the term of copyright to just five years, that would cripple the open source movement by not requiring users to follow open source licenses after just five years. However, proprietary software, which is usually compiled before it is sent out and the source code is unavailable, would face no such restrictions.

Several proposals to address this issue have been made. One would make an exemption for open source software, an idea rejected by The Pirate Party. Another would be to force software creators to release the source code of their applications once they entered the public domain.

This conflict only serves to highlight the intricacies of copyright law and exactly how unattainable quick fixes are to the problem.

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.

1: Associated Press settles case against AHN Media over copying articles online

First off today, the Associated Press has settled its case with AHN Media, the owners of All Headline News, over their copyright dispute. The AP accused AHN of taking AP article, rewriting them and posting them on the AHN site. Though AHN tried to claim fair use protection for their site, the AP argued and won a judge’s verdict based on the “Hot News” doctrine, a 1918 Supreme Court case involving the AP, which determined that news-gatherers can sue when competitors copy their time-sensitive news content, even though facts are not copyrightable.

The settlement calls upon AHN to pay an unspecified amount in damages and to stop the practice. Most importantly for those interested in copyright issues, it allows the “Hot News” ruling to stand, rather than risking it being overturned on appeal.

This makes it much more likely we’ll see more “Host News” cases coming from the AP, and other news organizations, in the near future.

2: EMI sues music site alleging copyright infringement

Next up today, EMI has sued Grooveshark, a music streaming site who makes it possible to “Play any song in the world, free!” after it appears licensing negotiations broke down. Those negotiations, which had been ongoing between the two for over year were similar to ones Grooveshark had struck with labels such as labels like V2 and Nettwerk.

It is unclear what this means for Grooveshark, but most people seem to be saying that their odds of victory in this case are very slim. Grooveshark, which is a small business founded by two University of Florida students, likely lacks the resources to put up much of a fight and, truth be told, doesn’t seem to have much of a case at this time.

However, in Grooveshark’s defense, they do not actually host any of the files, they just stream audio files hosted on other servers. It seems unlikely that distance will help it much in this case, but it seems likely to be an issue that will be raised.

3: On Leaving Google

Finally today, Alexander Macgillivray, the Senior Product and Intellectual Property Counsel to Google is leaving the company. If you’ve filed notices with Google within the past few years, you probably know his name well as he, among other things, is currently listed as their DMCA contact.

Macgillivray is leaving Google to become lead counsel at Twitter, where he will help guide that company through some very interesting and murky waters.

Magillivray has been a force in many of Google’s recent copyright disputes, including the Google Book Search case. Needless to say, he will be deeply missed at Google and Twitter is very lucky to have him on board.

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.

1: High-Court Nominee Mirrors Industry Copyright Stance

First off today, Supreme Court nominee Sonia Sotomayor is having her judicial opinions and history picked apart and one of the elements being analyzed is whether she supports the high potential damages that can be awarded in cases of copyright infringement, up to $150,000 per infringement.

As many debate the constitutionality of such high statutory damages, Sotomayor has, in at least one case during her history, come down on the side of content lobby, finding that a high statutory damages were reasonable in a case where a boxing promoter sued a series of bars and taverns for unauthorized public performance of their event.

Sotomayor has said that she feels the statutory damages, in cases of willful copyright infringement should be high in order to deter copyright infringement and should not be limited to the amount of revenue actually lost.

It is possible, if not likely, that these damages may be tested by the Supreme Court while Sotomayor is a justice should she be seated.

2: AP: tech coming to stop “wholesale theft” on ‘Net

Next up, the Associated Press today is talking more about their upcoming plans to police the Web for their content. They previously had warned about a new upcoming system that would let them track and stop misuse of their work but provided few details. Today, they’ve provided at least a little bit more information.

The AP, in an interview with Ars Technica, explained that their concern is not bloggers that cite a few passages or those who use a paragraph with a link, but rather “wholesale theft” of their work, namely full articles. Their new system, which they will be launching soon, is designed to look for such misuses and then then forward on the instances to a lawyer or paralegal who makes the decisions about what action should be taken. Everything is handled on a case-by-case basis.

The AP also took steps to distance itself from the Drudge Retort controversy and to explain that it is a supporter of fair use, largely because they use it so much themselves. However, I have to wonder how Shephard Fairey views that statement….

3: Endless original, copyright-free music

Finally, for those who are tired of paying licensing fees for background music or are sick of short, mind-numbing loops, the University of Grenada has developed a new application that can, with very little input, generate pleasing and copyright-free music.

The idea is that this application can replace music played in the background of stores, office buildings and other places, saving money and reducing the risk for copyright troubles.

There is no word yet whether ASCAP or other licensing boards are at all worried about this invention.

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.

1: Wizards Pulls PDFs, Sues Eight for Copyright Infringement

First off today, a company known by nerds and geeks the world over (myself included), Wizards of the Coast, has pulled its purchasable PDFs from its site and filed suit against eight people that it accuses of sharing those aforementioned PDFs via file sharing networks.

If you do not know who Wizards of the Coast is, meaning that you are probably reasonably popular and socially adjusted, they are the makers of Magic the Gathering card game as well as the Dungeons and Dragons role playing game. The PDFs in questions were downloadable handbooks for their games, which they apparently have a way to tie back to the individual that uploaded them as they claim that all eight of these people purchased copies and then made them available via file sharing networks.

2: National Federation for the Blind protest at Authors Guild in NYC today over Kindle text-to-speech

In more serious news today, the controversy between the Author’s Guild and Amazon over the Kindle 2 text to speech feature is continuing. Weighing in this time are the National Federation for the Blind and the Reading Rights Coalition, an organization that represents people who cannot read print.

According to the organizations, the complaints by the Author’s Guild, which resulted in the Kindle’s text-to-speech feature being enabled only on books that permit it, will hinder access to books to those that can not read printed words, including those who are blind or dyslexic.

The groups protested outside of Amazon’s New York headquarters yesterday in an attempt to make their arguments heard.

3: Some questions related to Google News and the Associated Press

Finally today, in response to some of the AP’s comments talked about in yesterday’s 3 Count, Google has filed a response, saying that it works closely and even partners with news agencies to display the content that it does and, for the uses that aren’t licensed, it feels fair use protects it.

Google went on to say that they, “Drive traffic and provide advertising in support of all business models — whether news sources choose to host their articles with us or on their own sites, and whether their business model is ad-supported or based on subscriptions.”

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.

1: Associated Press cuts fees, acts to protect copyrights

First off today, the Associated Press is “Mad as Hell” and is going on the offensive against those who it says are using their work, “under some very misguided, unfounded legal theories.” The move also comes as the AP is reducing its fees to newspapers by another $35 million dollars, on top of a $30 million reduction that took effect this year.

It is unclear at this time exactly how they will engage in this fight or exactly what sites they are talking about, but it is clear that the AP will be ramping up their efforts in the coming months to combat what they see as piracy.

2: Congress looks abroad to curb piracy

Next up, even as the manhunt for the leaker of the new Wolverine movie continues, the House of Representatives Committee on Foreign Affairs held a meeting with representatives from the movie industry about how to help curb piracy across the world.

The result of these conversations is a promise by the committee to work more closely with other nations to help them buttress any weak spots in their copyright laws as well as potentially an effort to incorporate more IP-related issues onto free trade agreements.

Though obviously nothing solid was promised in the meeting, these types of meetings can illustrate the future direction for such matters.

3: New Copyright Law Causes Uproar Among Bloggers, Internet Companies

South Korea, long-heralded as one of the most wired nations, has passed a tough new anti-piracy law that allows the government to shut down, for up to six months, message boards and other sites that post copyright infringing material (after two warnings) and also disconnect file sharers from the Web.

A related bill has also called for services to require real names of posters before allowing them to host a site, meaning that bloggers will have to have their real names available, at least to the government.

Both of these bills go well beyond the controversial Section 92a law that was discarded in New Zealand due to backlash from ISPs and users. The votes on these bills were close, but outcries of bloggers and others was not enough, in this case, to turn the tide.

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.

So I’m going to take a few words here to talk about this case, what my thoughts on it are and the likely outcomes seem to be. I’m going to try and keep this brief, even though it is a complicated case with a lot of elements in play at once.

The Story

The basic story of the lawsuit is well-known by now. Shepard Fairey produced the now-iconic poster of now-President Barack Obama back when he was in the early stages of his Presidential campaign. The poster, which is shown in part above, was based on a 2006 AP photo taken by Mannie Garcia, who was what he calls a “temporary hire” for the AP at the time.

This was in contrast to many earlier reports that it was based on a Reuters photo.

Some time within the past few months, though it seems to be unclear exactly when, the AP discovered that the poster was based on their image and has sued Fairey for copyright infringement. Fairey is being represented by Anthony Falzone, Executive Director of the Fair Use Project at Stanford University.

The case, obvious, is still pending.

Problems with the AP’s Case

In the short period of time since the case has come to the public light, there have been several issues with it that have been raised:

1. Copyright Ownership: Mannie Garcia has come forward and said that he was not a full-time employee of the AP at the time the image was taken and that causes doubt as to whether or not the AP even has the copyright in the image as the work-for-hire and contractual issues are unclear.
2. Fair Use Issues: Fairey’s use of the photo raises serious fair use issues. The use of the image was almost certainly transformative, so much so that the AP didn’t recognize the image for quite some time, was for a political purpose, the most protected form of speech typically, and was non-commercial in nature. Though there are elements against Fairey, such as the use of the whole image and arguable damage to the market for Obama posters, Fairey does seem to have a reasonable fair use argument.
3. Lack of Assets: Since Fairey did not earn any revenue from the poster, a claim he has repeated many times, and does not seem to have a large amount of assets of his own, the odds of the AP collecting on any large judgment is slim, at least not for quite some time.

In short, the Associated Press has to first answer very serious questions about ownership, defeat a relatively strong fair use argument and then find a way to collect from a source that, from all appearances, does not have enough assets to cover any major judgment.

The end result is that the AP has an uphill climb in this case. Though it certainly is possible that they can win, there are a lot of obstacles making this case a difficult one, especially if they hope to actually collect on it.

The AP’s History

This is not the first time that the AP has found itself at odds with the Web on issues of fair use. Many will recall their battles with the Drudge Retort, briefly covered here, over snippets of their content appearing on the site. The AP has been notoriously aggressive about narrowly defining fair use, even being banned on TechCrunch for their previous actions.

With this noted history of trying to having a very narrow view on fair use, the AP comes into this with a lot of users on the Internet already looking for blood. This lawsuit seems to have divided the Internet community pretty sharply, causing some photographers and artists to applaud the AP’s move while others are sharply condemning it and using it as a call for copyright reform.

Of course, this use and whether or not is it is infringing already plays well into the existing paradigm of fair use. The judge and/or jury in the case will have the chance to decide this issue, no reform needed.

The real question, for me, is why the Associated Press took this case on so willingly. Between all of the legal issues in the case, it seems unlikely that they are going to recover enough damages to make it worthwhile, especially when one factors in the PR damage and general ill will this case has already created.

Typically, this type of problem comes about when the lawyers deciding what cases to take are insulated from the business and PR people. Lawyers look at the damages they will possibly receive versus the expenses they will likely create and make a decision to move forward, unaware or uncaring about how it affects the rest of the business.

Either the business heads at the AP are making some very questionable decisions, or the lawyers are too insulated from how this is impacting the company in other ways. Either way, on the surface at least, it appears to be a classic case of being penny-wise but pound foolish.

Conclusions & Predictions

Normally I would say that this is where the two sides will sit down and work out an agreement. That may still happen, but I had the good fortune of meeting Anthony at a conference in the Netherlands. He is a very smart and dedicated attorney that believes strongly in his cause.

He defended Ben Stein and the movie Expelled against a lawsuit by Yoko Ono Lennon and EMI, the Harry Potter Lexicon against J.K. Rowling and many other cases. He hasn’t always won, no attorney has, but he’s always fought and he’s always gotten rulings that bode well for fair use (the Lexicon ruling is an example of a loss that still bode well for fair use in general).

Falzone will represent his client well but he will not roll over and allow the AP to write its own version of fair use. Whether or not this particular poster is found to be an infringement, I would expect Falzone to push for a judgment that would benefit the notion of fair use as a whole.

So, in the end, it seems likely that this case will be fought out in courts for at least some time. Though there is a lot of debate about the likely outcome, the hope is that it will answer some questions about fair use and, perhaps, better define it in a way that everyone can better understand and take advantage of it.

However, this episode is a true abomination, for the first time in well over a year I am not on the podcast and Chris is going solo. If the horror is too great to bear, take comfort in that I still provided the show notes, though I am writing this before I leave for my trip, leaving plenty of room for Chris to go “off script”.

On that note, we do have lots of updates on a variety of stories including the AP controversy, the Jammie Thomas Case and the French “three strikes” system.

All in all, there were eighteen stories this week including news from all over the copyright world including our “Weird Story of the Week”.

This week’s stories include:

• The AP “Resolves” its DMCA Dispute
• RIAA Drops Another Case
• Kid Rock Encourages P2P
• MPAA Goes After DVRs
• Intellectual Property Museum Opens
• And Many more…

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

Also, a special thanks to our friends over at the Copyright and Fair Use Center at Stanford in their site. It is a great honor to be there!

Show Notes

[audio:http://media.libsyn.com/media/plagiarismtoday/copyright20eps64.mp3]