Pulling a quote from the UK Pirate Party’s manifesto, which encourages the legalization of private file sharing but wishes to to give artists the first chance to profit from their work, the blog asks “What would there be to stop one person buying a song, film or book legally and then sharing it with everyone else in the world legally, leaving the original artist with only one sale?”

The question is an interesting one and the comments below, which include at least some higher ups in the UK Pirate Party, but the commercial use question is an age old one that predates the Web.

But the basic problem is a simple one: Non-commercial use often has dire commercial consequences. Just because a user isn’t selling or profiting from a work doesn’t mean they aren’t hindering the creator’s ability to do so.

This, in turn has implications for the laws and ethics that govern copyright as well as the licenses people choose to distribute their works under.

Nailing Down Commercial Use

Simply defining what is and is not a commercial use is thorny enough without additional complications. This is so much so that, back in 2009, Creative Commons posted a very interesting study as to what users thought commercial use was and was not.

However, even if we only look at the most clear-cut cases of non-commercial use, such as file sharing, there are still commercial implications to be found. The reason is that the idea of commercial vs. non-commercial use looks at the actual use itself, not the impact it has on the creator and/or copyright holder.

For example, though the actual commercial impact of file sharing is hotly debated, it almost certainly has an impact, no matter how large or small you believe it to be.

This, in turn, creates problems and conundrums for lawmakers and rightsholders alike and raises difficult questions about what copyright should protect and how.

The Challenge This Creates

The disconnect here is best illustrated by the Jammie Thomas-Rasset case, where a woman has been hit with damage awards anywhere between $54,000 and $1.5 million based on her sharing of 24 songs. This, despite the fact she never sold a single track.

The juries and even the judge looked at the perceived commercial harm her non-commercial her sharing did and decided on a damages award based upon that. It works that way because the entire system of statutory damages is designed to do just that, award damages when they can’t be calculated or proved based on a variety of factors.

Licenses also suffer from this issue as well. For example, using any Creative Commons License, even a non-commercial one, is likely not a smart move if you are commercially exploiting a work, especially if that exploitation involves selling copies of it.

However, the biggest challenge this issue creates revolves around the copyright debate itself. Copyright reformers routinely view only the act itself where copyright maximalists see only the harm, or potential harm, of it.

This causes two sides, which often have overlapping goals, to see the same act in very different ways and often clash very strongly rather than try to work out the differences.

Sadly, there’s no easy way to see this problem, not when two sides are looking at it from such drastic angles they can’t see the other’s viewpoint (at least not well enough to take it seriously).

Even worse, this problem is only going to grow as the Web continues to make non-commercial copying easier and cheaper.

In short, this battle is one that has just begun.

Bottom Line

If there’s one thing in my opinion in copyright that has changed over the past 6 years, it’s been that I’ve started seeing the world in shades of gray. Very few cases are truly as black and white as the sides involved want to paint it.

Both sides, at their extreme, try to simplify the issues and paint their pictures from one simple perspective. The commercial use is just one of those examples. Where one side sees millions in declining revenues and potential lost sales, another sees a single mom innocently sharing a few songs with friends. Both views are right. Both views are wrong.

I don’t have an answer to this problem nor do I see an easy way to resolve it. However, overcoming this perspective challenge, and others like it, is going to be critical to creating a better copyright future for everyone.

Sadly though, it doesn’t seem that too many people are willing to try and the few who are find themselves enemies of both sides of the debate.

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

1: Rihanna Facing Another S & M Lawsuit From Second Photographer

First off today, the musician Rihanna and her label are facing a second copyright infringement lawsuit over the her music video for the song “S&M”. Photographer Phillip Paulus sued the singer after settlement negotiations broke down claiming that the video too closely imitates several of his photographs, recreating key elements of them, including the set and staging. Paulus follows in the footsteps of another photographer, David LaChapelle, who sued Rihanna for similar reasons in February. Rihanna and her label had no comment on the suit.

2: Site Admin To Pay $185,000 Damages For Providing Keywords

Next up today, a Frenchman by the name of Sébastien Budin is being ordered to pay some 130,000 euros ($185,000) in damages to the movie studios for a site he used to run, Station-Divx. The fine, which was recently upheld by an appeals court, is unusual because Budin never provided links to infringing material nor did he offer files for download on his site. Instead, his site was a guide for keywords that one could search for on the eMule file sharing network. Budin has been convicted now in two courts of contributory copyright infringement for his actions and, in addition to the damages, faces a 3,000 euro ($4,200) fine and a 1 year suspended sentence. Budin plans to appeal the decision to the EU courts.

3: Righthaven Says It Owns News Articles It’s Suing Over — for Real This Time

Finally today, after suffering setbacks in three of their cases, Righthaven is asking the judge to reopen its case against Democratic Underground claiming that they have amended their contract with Stephens Media and have grounds to sue now. According to the company, which has filed over 200 lawsuits against websites that have reused content from the Las Vegas Review-Journal and the Denver Post, the agreement between them and Stephens Media, the mutual parent of them and the Review-Journal, has been amended to give them the needed standing to sue, the grounds on which the judge previously tossed their claim. However, the judge in earlier hearings did not seem to impressed with the changes, calling them “cosmetic” making it debatable if the new agreement is adequate in her eyes.

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: US Man Pleads Guilty to Music Piracy Charges

First off today a California man, Richard Franco Montejano, has plead guilty to conspiracy to commit criminal copyright infringement due to his involvement for over 5 years in a “warez” scene that specialized in releasing music before it was commercially available. Montejano was a member of the “Old School Classics” warez group, which achieved notoriety in 2007 for leaking Kanye West’s album “Graduation a week before it went on sale. Two accomplices of the group, the ones who obtained the CDs from the factories, have already plead guilty and were sentenced to three months each in prison. Montejano is due to be sentenced July 25.

2: Perfect 10 Sues Giganews for Copyright Infringement

Next up today, adult content company Perfect 10, most famous for its failed lawsuits against Google, Rapidshare and others, has now decided to file a lawsuit against Usenet service Giganews for copyright infringement. According to Perfect 10, they sent Giganews a DMCA notice with some 800 images but Giganews said that, based upon the information provided, it was unable to identify where the allegedly infringing images were. Perfect 10 also sued 100 “doe” defendants and Livewire Services Inc., a company that resells Giganews content. Perfect 10 is seeking a total of $25 million in damages.

3: IP-Address Is Not a Person, BitTorrent Case Judge Says

Finally today, a judge denied a subpoena request made by Canadian adult content company VPR Internationale preventing them from getting information from ISPs as part of their lawsuit against over 1,000 “Doe” defendants they accuse of illegally sharing their content online. According to the judge in the case, a computer’s IP address does not equal the person responsible for the file sharing and providing information about the IP address owner could prompt people to settle cases quickly to avoid embarrassment. There is no word if VPR plans on appealing the ruling.

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.

The issues around business models online are thorny because the Internet has clearly changed how many artists earn a living from their work, but what is much less clear is just how. Societal norms are still largely being settled on the Web and laws are constantly in flux. The Web, for content creators, is still largely unsettled and uncharted territory.

However, there are two very strong and loud voices on the issue of business models, at least when it comes to what would traditionally be referred to as piracy. One side encourages all content creators to embrace all copying wholesale, using it to their advantage, and the other seeks to use laws to stop unauthorized copying or at least severely mitigate it.

But, in my view, both sides are wrong and both sides are right. The problem is, they both try to cast a broad net and tell nearly everyone what’s best for them. However, with a near infinite number of content creators producing an equally infinite number of works, there is no correct single solution to the problem, old or new.

Instead, there’s a near infinite number of answers to the problem and copyright has to enable creators to experiment with their business models and let the superior ones win out over time. Without that, we’re arguing over hypotheticals and over single success stories/failure, not letting the market determine what’s best.

In this regard, copyright business models have a great deal in common with a grassy field at my old college.

Tramping the Grass to Pave the Path

Years ago, as part of a green space initiative, my college tore out two small parking lots near the library and turned them to grassy fields with a few trees. For a student body hungry for parking, any parking, it was a controversial move but most agreed it did help beautify the area, which was near the center of campus.

As one would expect, students began to walk across the grass on their way to class. At first the paths were erratic and made little sense but, over time, a handfull of paths began to emerge, easily visible in the parts of the grass that were worn.

The paths that were settled upon seemed obvious in hindsight but weren’t clear before. Since there was a parking lot there previously, students hadn’t pondered how they would cross that area on foot. Once those paths were set, the school then went back and paved over the paths. The result was that very few students crossed the field on the grass and the beauty of the area was preserved nicely.

To be clear, there are two ways you can read this analogy. On one hand, it could be showing that we need to empower content creators to find their own paths online by providing strong copyright protections, and then reinforce the rights that are actually needed for the various business models while weakening other rights. The other is that we need to have minimal protections, let content creators find their paths and then support those models with new copyright legislation.

Either way though, one point stays the same: We don’t know what the business models look like right now but we do know that there won’t be any single answer for every artist and creator. The grass just isn’t trampled down enough.

As such, anyone who is selling silver bullets, whether they are pro-copying or anti-copying isn’t telling or seeing the full picture.

In short, there is no single business model that every creator needs to follow, but a slew of possible ones to take, all of which have been enabled under copyright law.

How I See It

Whenever a new artist or other creator comes to me and seeks advice on how to enforce their copyright, I ask them a series of questions:

1. Where is the artist in their career? Are they just starting out, established or somewhere in between?
2. What kind of content do they create, how likely will it be pirated and by what means?
3. What audience is this content intended for? Is it for general consumption or a more niche audience?
4. What possible means do they have to earn revenue from it and how can copyright support those means, if at all?

When you answer these questions, you see that no two artists are in the same position and their approach to both their business model and copyright enforcement have to be different. For some, embracing piracy is easily the best route, for others, a more traditional route is needed.

There is simply no “one right way” to handle these things and no easy answers to be fund.

The only thing that is certain is that artists now have to put serious thought into what their business model is going to be, rather than simply trying to follow the traditional tracks to success.

Continuing the Conversation

On that note, I’d like to hear more from others about their business model successes and failures. Whether they involved traditional tracks, more pirate-friendly paths or something else altogether.

By talking openly about these issues and admitting that we don’t have the one right answer, we can actually generate new ideas and maybe come up with some new answers that can help some, but not all, creators.

In the end, there are no easy answers and we are going to have to embrace new business models. However, there’s no reason every artist has to embrace them exclusively. The old ones still earn money too and will continue to do so for a long time. There are also likely other new models that will be even better than the current proposals.

It’s up to the creator to figure out what’s best and, to do that, we need to work together and talk with each other, regardless of philosphy on issues of copyright.

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

1: Lime Wire Judge Limits Recordings for Which Music Labels Can Seek Damages

First off today the judge in the ongoing Limewire case has limited, somewhat, the number of works the record labels suing the company can seek statutory damages for. According to Judge Kimba Wood, the record labels can claim statutory damages for each individual track infringed but only as long as the track was not solely sold as part of an album. For example, tracks sold individually on iTunes or AmazonMP3 can each receive statutory damages even if they were originally on the same album. However, those only sold as part of the album are eligible for one statutory damage award for the whole compilation. The record labels have been ordered to produce a final list of tracks they are seeking damages for by April 15th. The trial, which is on the subject of damages only, with Limewire already being found liable, is scheduled for May.

2: “Operation In Our Sites” Will Continue Seizing Domains

Next up today, ICE director John Morton has stated before the U.S. House of Representatives that “Operation In Our Sites”, the seizing of domains that are believed to be for the purpose of counterfeiting and copyright infringement, will continue. Morton also brushed aside questions of constitutionality of the seizures, saying that the process was developed with the Justice Department to ensure compliance. The hearing, outside of Morton’s testimony, focused largely on Google and whether it could do more to stop online infringement. The hearing was part of run up to new legislation aimed at seizing suspected “pirate” domains.

3: Vermont State Rep.’s House Floor Speech Wasn’t All His

Finally today, Vermont State Rep. Tom Burditt turned many heads last week with a speech he gave on the House floor in which he railed against single-payer healthcare calling it “communist”. However, it also appears that much of the speech, including the controversial passage, was plagiarized from an earlier essay by Dr. Lawrence Huntoon, president of the Association of American Physicians and Surgeons. Burditt, when confronted by the similarities said that he didn’t see anything wrong with the copying, saying that, “There’s nothing wrong with having the same opinion as anyone else.” This, in turn, has called for some leaders in the Vermont House to start plagiarism training for representatives.

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.

This is no April Fool’s joke, it is Friday again and that means that it is time for another episode of the Copyright 2.0 Show.

If you’re in the mood for a completely joke-free conversation about copyright law then this is the podcast for you (Well, a few jokes but none on you). We have a lot of news to go over including a major victory for those who want to mass-litigate against pirates, Amazon launches a new cloud streaming service and Righthaven manages to file a lawsuit over an article about one of their lawsuits, nearly causing the universe to implode.

All in all there were eight stories this week including:

• Washington Judge OKs Mass P2P Lawsuits
• Amazon Launches Cloud Music Streaming, Sans Label Permission
• Zediva Gets Creative with DVD Streaming
• Righthaven Embarrasses Itself
• EMI and Bluebeat Settle
• Much, Much More!

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.

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

1: Mass-Suing of Pirates Gets Shot In Arm Thanks to DC Judge

First off today, a DC judge handed a significant victory to the U.S. Copyright Group, ruling that its mass litigation campaign against suspected file sharers can continue, setting aside objects of procedure, jurisdiction and free speech made by varius ISPs, who are having their records subpoenaed, and groups such as the EFF and Public Citizen. According to the judge, the U.S. Copyright Group, which represents various independent movie studios, can move ahead with its massive lawsuit against suspected file sharers in DC, even though many, if not most, of the potential plaintiffs don’t reside in the jurisdiction. The judge also ruled that file sharing does have elements of speech that may be protectable under the first amendment but that those elements will not likely play a major role in these cases as little original expression was involved.

2: Is Zediva’s New-Release Movie Streaming Service Legal?

Next up today, legal questions are swirling around the new movie streaming service Zediva, which claims to have found a way to legally stream DVDs via the Web. According to the company, it legally purchases DVDs from suppliers and then plays them in physical players, turning the user’s computer into a remote. Each DVD is only streamed to one person at a time, at a cost of $2. However, many are sketpical of Zediva’s claims of legitimacy, citing an earlier case that involved a video rental store renting out booths to watch movies. In that case, the renting was found to be an unlawful public performance.

3: Baidu VS Copyright Fighters Talks Go Fruitless

Finally today, talks between the Chinese search engine Baidu and the Copyright Protestant Alliance, which represents authors in the country upset over Baidu’s book and document service, have ground to a halt. The alliance had proposed a four-point plan for Baidu to make things right in their eyes namely a public apology, a compensation of loss, a stop of copyright violation and a legal operating model it and its partners. Baidu did announce yesterday that it would be using anti-piracy software to filter out infringing works on these services, but did not say if that move was a direct result of these negotiations.

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: Lime Wire Settles Copyright Suit with Publishers

First off today, the former file sharing service Lime Wire has settled one of its ongoing cases, this one involving some 30 music publishers. The details of the settlement are not available but this case, filed in June of last year, had already forced the closure of Lime Wire as a service last year and was against both the company and its founder Mark Gorton. However, a separate lawsuit involving another group of publishers is still ongoing and is due to head to court on May 2nd, leaving intact the possibility of a court verdict.

2: Google Fined In French Court For Not Stopping Video Copyright Abuse

Next up today, Google suffered a legal setback in France where a court ruled that Google owed €430,000 in damages to a documentary filmmaker named Mondovino who claimed that one of his works kept appearing both in Google Search and Google Video despite his desire for it not to. The EU, of which France is a member, does have a safe harbor provision similar to that in the U.S., one that prevents hosts from being liable for when users upload infringing material, but the court ruling seems to hinge on the fact that the work kept reappearing on the sites, even after all parties were notified. Details on this case are scant at this time and I will have more as I learn it.

3: Supremes to Decide if Public Domain Works Can be Re-Copyrighted

Finally today, the Supreme Court will be taking a look at the Uruguay Round Agreements Act, which changed the way the U.S. approaches the copyright terms on certain foreign works, including pulling some works out of the public domain in the U.S. that had been there previously. Specifically at interest is the works by many Russian composers, which had no copyright protection in the U.S. before the act was passed but were given it after the fact. This lead to what many are calling a free speech issue and are suing to have those works placed back into the public domain.

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: Twitter Does Not Mean Copyright Free, Court Rules

First off today, photographer Daniel Morel has won a key victory against the wire service the AFP and, along the way, a victory for those who post images on Twitter. The AFP had used one of Morel’s photo of Haiti earthquake in a story. After Morel claimed sued for copyright infringement, the AFP claimed that Morel had relinquished rights in the photo after sharing it on TwitPic. However, the court shot down that argument saying that posting via Twitter is not the same as relinquishing ownership. This paves the way for Morel’s lawsuit to continue and lets other Twitter users breathe a sigh of relief.

2: Porn Purveyors Target 13,000 More Does in P2P Lawsuits

Despite setbacks in late 2010 for other plaintiffs, the porn industry seems to be rolling out more lawsuits than ever with various smaller companies combining to file some 13,000 estimated lawsuits against “Doe” defendants all over the country. A similar lawsuit by the Adult Copyright Group targeting some 7,000 Does was thrown out for lack of enjoinder, meaning that there wasn’t sufficient reason to lump the lawsuits together. However, the new cases are arguing that the act of sharing files via P2P is a cooperative effort deserving of such enjoinder. Without it, all the lawsuits would have to be filed separately, greatly increasing the time and expense.

3: What Could Have Been Entering the Public Domain on January 1, 2011?

Finally today, January 1 marked Public Domain Day, the day in which expiring works lapse into the public domain. However, in the U.S. no works were to lapse into the public domain domain the the Center for the Study of the Public Domain instead ran a list of the titles that would have entered the public domain on January 1 2011 if it had not been for the Copyright Act of 1978. This year those works included “The Lord of the Flies”, “Horton Hears a Who” and “Creature from the Black Lagoon” among many 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.

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

1: Major File-Sharing Sites Go Dark To Protest Anti-Download Law

First off today, as Spain’s government prepares to debate revisions to its copyright laws that may make it illegal to host a file sharing site, many of the country’s most popular sites protested the laws by replacing their homepages with a black page with a warning that it might be the future of those sites if the law is passed. The law in question, the Sustainable Economy Law, will likely pass today and close a loophole that allowed file sharing sites to operate within the country so long as they meet certain criteria, including not earning a profit.

2: US Gov Spending Millions to Teach Foreign Judges About Copyright

Next up today, the U.S. Government, as well as other nations, will be spending millions of dollars in 2011 to educate judges and other officials about intellectual property law. The money will go to Interpol as well as countries such as Brazil, Mexico, Peru, Philippines that are seeking to crack down on intellectual property issues.

3: DiMA reacts to CRB’s proposals for Internet radio performance royalties

Finally today, in a story that I missed, the Copyright Royalty Board in the U.S. declined to raise royalty rates for Internet streaming sites, despite please from royalty collecting services such as Soundexchange. The Digital Media Association (DiMA), an organization that represents online music streaming services and retailers, applauded the decision citing the more than three-fold increase in royalties from the past three years.

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.