Category: Intellectual Property

Million Dollar Kitty

cat.jpgGrand Central Publishing recently paid a $1.25 million advance for the story of Dewey the Library Cat. Apparently the book

will tell the story of how the kitten was found in the late-night book drop of the public library in Spencer, Iowa, a town in the northwest part of the state, and adopted by Ms. Myron and the other librarians. Slowly, over the course of his 19-year life, Dewey became a town mascot who lifted the spirits of residents hit hard by the 1980s farming crisis.

Dewey’s story will “need to sell at least 250,000 copies in hardcover to cover the cost of the advance.” Which leads me to wonder–what exactly are they paying for here? The co-authors will be “Vicki Myron, the head librarian in Spencer, Iowa; and Bret Witter, a former editorial director at Health Communications, the publisher of the “Chicken Soup for the Soul” books.” Certainly Ms. Myron has the inside scoop on taking care of Dewey, and Witter’s helped churn out buckets of spirit-lifting pablum. But is the advance really about something more, like the “life story” rights?

I’ve always found life story rights a bit puzzling. If a docudrama is basically a retelling of something that has happened, anyone can “use” those facts. But a brief glance at a bit of a sample “life story” agreement reveals some reasons why someone may want to buy “life rights.” Here is some of the language:

(a) Upon exercise of the option, Purchaser shall own the exclusive right throughout the world, in perpetuity, to produce, distribute, exhibit, license and otherwise exploit, in any and all media (now known or hereafter devised), motion pictures, television productions and other audiovisual works of all kinds (the “Works”), including without limitation sequels and remakes, based on or portraying your life story or depicting you, as well as exclusive ancillary rights . . . to use your name, likeness and other identifying characteristics in connection with the Works.

(b) You agree that in producing the Works, Purchaser shall have the right to add to, delete from, modify and fictionalize your life story and you waive all claims arising therefrom, except in the event of intentional defamation of you.

So the real advantage for the purchaser of the “life story” rights is fending off potential defamation or right of publicity lawsuits. One query–does purchase of the life rights of some notable figure also give the purchaser the same right to sue others that the seller agreed not to enforce against the purchaser? Then I could see these agreements being quite potent…for an aggressive purchaser may threaten virtually any rival storyteller in the marketplace of ideas with some kind of right of publicity or defamation suit.

Photo Credit: Flickr/Huxleyesque. No, that’s not Dewey…no way I’m risking a copyright suit with that feline corporate juggernaut.

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Agriculture and the Pharmaceutical Industry

In this policy brief, the Oakland Institute argues that “The enormous public resources invested in agriculture have benefited [pharmaceutical] companies by promoting the sale of [genetically engineered] seeds over and above their actual value and by allowing them to multiply their research efforts at minimal cost through collaborations with public institutions.” It’s an argument that I’ve seen before, although this is perhaps the most reader-friendly version that I’ve seen.

What I find interesting is the framing of subsidies as occuring through the (semi-)public works of “public-private partnerships and the patenting of university generated knowledge,” because it seems analogous to earlier public-works agricultural subsidies: that is, big water projects. What I also find interesting (and maybe it’s because of my relative newness to this field, and my focus more on the agricultural/environmental side of things) is its emphasis on the companies as part of the pharmaceutical industry, rather than on companies as part of Big Agriculture (which is more of what I see in the agricultural literature). I think this further highlights the importance of promoting dialogue between agricultural reform advocates (who often focus more on direct subsidies) and biotech patent reform advocates, as well as a reassessment of earlier public works projects and their unintended detrimental effects.

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More thoughts about Turnitin

Thanks to all who have posted interesting comments about Turnitin. I particularly appreciate the thought behind the comments arguing that Turnitin has no fair use defense, but I haven’t changed my mind. Let me explain why I still think it’s fair use in the limited space this forum permits.

At the outset, I’ll concede factors 2 and 3 for the plaintiffs, although in at least some cases the nature of the copyrighted work may be sufficiently factual (i.e. academic research paper) that 3 isn’t the slam dunk that some have suggested. That having been said, remember that factors 2 and 3 alone are not enough to swing fair use for a plaintiff, as we learned in the Sony case, where factors 1 and 4 insulated widespread wholesale copying of fictional works.

It’s true that Turnitin is engaged in a commercial endeavor, but that alone doesn’t swing a fair use analysis either. In Campbell v. Acuff-Rose, the Supreme Court understood that people create parodies for commercial purposes, but still reversed the lower court’s pro-plaintiff decision. In doing so, the Court astutely observed that commercial use is a factor that weighs against fair use, but that a great deal depends on whether the defendant’s use substitutes for the plaintiff’s. Although the Turnitin’s use is commercial, its purpose in doing so is to produce critical information about the scholarly bona fides of the plaintiff and others, and not to create copies that displace the plaintiff’s work in the marketplace.

Now let’s consider the markets that the defendant’s use might affect. First, it may diminish the plaintiff’s ability to sell papers to people who want to plagiarize. Second, the defendant may diminish the plaintiff’s ability to sell his paper to outfits like Turnitin for purposes of trying to catch plagiarists.

As for the first market, Turnitin’s use does not substitute for the plaintiff’s work. Yes, Turnitin’s use affects that market, but that is because Turnitin produces information that exposes the plaintiff and the plaintiff’s customer as dishonest academics. That’s criticism and comment, and it does not count as affecting the marketplace for the copyrighted work. Campbell stands for the proposition that if people don’t want the plaintiff’s product because of something they learned from the defendant’s alleged infringement, that is not an effect on the market for the copyrighted work. To quote the Court, this is the “distinction between potentially remediable displacement and unremediable disparagement.”

As for the sale of the plaintiff’s work for detection of plagiarism, the effect on the marketplace is small at best. If the plaintiff wants to exploit a market for sale of manuscripts to people who want to plagiarize, the plaintiff will not sell into any market for catching plagiarists. Additionally, the plaintiff cannot claim that he writes specifically for the detection of plagiarism because there’s no demand for a work written for that purpose. A work is valuable for detecting cheaters only if it’s already a published work that someone might find and use, or if it has been sold to plagiarists. There is no meaningful independent demand for works used to catch plagiarists. Thus, its elimination would have no effect on the production of copyrighted works. Accordingly, the effect on this market, even if considered an effect on the market for purposes of copyright, is too small to swing factor 4 to the plaintiff.

Accordingly, I conclude that the defendant’s case in factors 1 and 4 is strong enough to overcome the plaintiff’s strength in 2 and 3.

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Students sue Turnitin

I saw on a listserv that two high school students have sued Turnitin, a service that identifies plagiarism, for copyright infringement. The apparent basis for the suit is that Turnitin archives papers it reviews for purposes of comparison against future papers. The Washington Post story about this suit contains opinions suggesting that the plaintiffs (who seek $150,000 in damages) have a good case.

While Turnitin does appear to violate the copyright holders’ right of reproduction, I think fair use clearly applies. Even if one considers the use commercial (couldn’t one also characterize the use as for purposes of criticism?), there is, in my opinion, no way that the use affects the marketplace for the copyrighted work. Turnitin’s archiving results in no distribution of the works. There is simply no way that this use injures any of the financial incentives associatd with copyright. What person writes a paper thinking “Hmmmm. Maybe one day I’ll get royalties when my paper gets submitted to Turnitin.”? This case reminds me of the one against Google Print, but I think it’s a lot weaker.

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Saving “Peyton Manning”

File this one under “Thank goodness for the courts!”. Yahoo reports that a Judge in Chicago stopped a Bears fan from changing his legal name to “Peyton Manning.” The fan in question, Scott Wiese, lost a bet on the Super Bowl. If the Bears lost to the Colts, Wiese promised he’d change his name to “Peyton Manning.” The judge stopped him on grounds it might be confusing or invade Manning’s privacy.

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Professor Suit Against Joyce Estate Settled

The highly publicized suit by Stanford Professor Carol Loeb Schloss against the estate of James Joyce has been settled. The Yahoo!/Reuters story suggests that the settlement was reached on terms reasonably favorable to Schloss. However, although I congratulate her and those who helped her bring the suit, I’m a little disappointed that law wasn’t made. Professors need concrete guidance about the extent to which scholarly quotation constitutes infringement, and the lack of final judgment preserves the ambiguity that copyright holders sometimes exploit to stifle criticism they don’t like.

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Constructing an IP Curriculum

A major challenge for law schools working with limited resources is the construction of IP course sequences. The three primary courses, patent, copyright, and trademark have each grown to the point that professors talk about making them 4 credits instead of 3. At the same time, there is continued student demand for an IP Survey course, usually of 4 credits, which is valuable to those unfamiliar with IP or who take it as part of a larger corporate law curriculum.

Here are some possibilities for how to structure things. First, have everyone start with an IP Survey course, making it a prerequisite for advanced courses in copyright, patent, and trademark. The problem here is that “serious” IP-focused students find it inefficient and would rather start off with more in-depth treatment, and there is also the inefficienty of unavoidable overlap (e.g. everyone reads certain cases in each course).

Second, have separate tracks. Students can start with IP Survey, or they can start with patent, copyright, and trademark. If one assumes that students who take IP Survey won’t take the other three, then concerns about overlap disappear. However, if someone who takes IP Survey decides to pursue IP as a career, they wind up with a lot of overlap between the two courses, raising an argument that the person who takes IP Survey before the other classes has an unfair advantage (something I’m not too sure about) or should get one less credit for the other courses.

At BC Law, we presently use the first solution, but I’m not entirely satisfied with it. What do others do?

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Viacom sues YouTube

Just up on Yahoo!….Viacom sues YouTube for $1 billion.

I have not seen the complaint for the suit, so I don’t know whether the basis for the suit is contributory infringement, inducement, or some direct infringement theory. The most obvious cause of action would be contributory infringement, but it isn’t hard to find stories that YouTube follows DMCA notice and takedown provisions. This makes me think that YouTube is inside the DMCA safe harbor and unlikely to lose. But perhaps there’s something in the complaint that will make the suit stick.

In the meantime, I imagine that the suit is actually a way for Viacom to “scream and yell” at YouTube, letting them know they want some kind of licensing deal for their content. Any speculation (or informed insight) on what the eventual settlement will be?

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What’s the Analog Hole worth? Twenty-Four Cents

audioports.jpgI’ve overstayed my welcome, so I’ll be signing off with this post. Thanks to Dan and the other permabloggers for letting me participate.

Point a video camera at a television screen, aim a microphone at a speaker, or run a cable from the “line out” to the “line in” ports on the back of your computer, and you’re ready to exploit the so-called analog hole. Just press “play” on one device and “record” on the other, and you can copy a movie, television show, or song, even if the original is supposedly protected by digital rights management technology designed to prevent copying.

The analog hole–which arises from the fact that relatively-easy-to-protect digital content must be converted into harder-to-protect analog signals if we humans are to see or hear them–has given Hollywood and the recording industry a fair amount of heartache, has led them to displays of public consternation, and has even resulted in some proposed legislation.

Despite its frequent appearance in DRM debates, the analog hole is suprisingly unexplored in legal scholarship. Westlaw’s JLR database contains a mere thirty-seven articles that use the phrase, most in passing, and SSRN returns only three hits. Most of the commentary relies on an empirical assumption that has never before been rigorously tested: Exploiting the analog hole creates copies of such low quality as not to be good substitutes for the originals.

Doug Sicker, an Assistant Professor of Computer Science at my University, together with Shannon Gunaji, a grad student, have tried empirically to test this assumption by conducting a series of surveys assessing, among other things, what the analog hole means for the typical music consumer. Doug asked me to help bring the early results to the legal academy, and our little article, entitled The Analog Hole and the Price of Music: an Empirical Study, has been posted to SSRN and will appear soon in the Journal of Telecommunications & High Technology Law.

Our results after the jump.

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Microsoft, Google, and Copyright Scofflaws

I saw in Michael Geist’s BNA newsletter that Tom Rubin, Microsoft’s Associate General Counsel, will accuse Google of having a “cavalier” attitude towards copyright in a speech to the Association of American Publishers. FT.com has a preview of the speech, and WSJ online has the text available to subscribers. I’ve only the read the FT.com preview (I don’t subscribe to wsj.com), but I’m curious how far Mr. Rubin’s speech will go to address the problem of online piracy.

Rubin describes Google as a copyright scofflaw, saying ““companies that create no content of their own, and make money solely on the back of other people’s content, are raking in billions through advertising and initial public offerings”. Rubin will apparently try to distinguish Microsoft from Google by offering to cooperate with content producers to eliminate piracy.

I wonder how far Microsoft is prepared to go in eliminating piracy from the online sites like YouTube. I went to Microsoft’s YouTube competitor Soapbox, and put in searches for “Mariah Carey” and “Ice Age.” Both searches turned up what I presume content providers consider infringement. If Microsoft is offering to police its site for infringement (presumably the behavior most respectful of copyright), they’ve obviously done a poor job. If they’re not prepared to go that far, then they must think that there is some less aggressive behavior that is a reasonable, appropriate response to the problem of user piracy. I hope and would very much like to see what Mr. Rubin’s company thinks is the right thing for sites like Soapbox to do. If Microsoft is not prepared to do everything content creators demand, it has to articulate a theory of what their obligation is. Otherwise, it looks like Microsoft is simply criticizing its more commercially successful rival.