The Faculty Lounge

Digital Copyright Law: What Authors Want ...

cross posted from madisonian.net

With the second movie in the Twilight series (New Moon) imminently about to appear on the big screen, I found myself getting interested in this pop culture phenomenon, particularly as I strolled around a bookstore this afternoon and found just about every magazine cover devoted to the exploits of the teenage vampires and werewolves in the small town of Forks.

One part of the Twilight story, or at least the story of its author Stephenie Meyer, provides an interesting commentary on copyright law in the digital age.  The original Twilight novel is told from the perspective of its young heroine, Bella Swan, as are the next three novels in the series.  Bella famously falls for a young vampire called Edward and their forbidden and dangerous love is the focus of the narrative.  However, at some point during the writing process, the author became interested in how the story might look if she told it from Edward’s point of view.  She thus started a project entitled Midnight Sun – a retelling of the first book from the vampire’s perspective.

As she was working on Midnight Sun, production was on full swing on the first of the movies.  She released some draft chapters of the book to members of the production team (and possibly other people as well) to assist with character development on the Twilight movie.  Unfortunately, as seems to be the case with any work now made available in a digital format, the uncompleted draft of Midnight Sun was eventually released virally over the Internet.

Ms Meyer’s reaction to the unauthorized release and the storm of online commentary that followed is very instructive for those interested in finding out what many authors really want from digital copyright law.  And, perhaps surprisingly for some, it isn’t all about the money.  Ms Meyer’s response to the unauthorized release is described on her website.  And out of deference to her concerns about loss of control of her own material online, I won’t cut and paste slabs of her comments here.

What is interesting about her reaction, though, is she seems more concerned about loss of control of the fruits of her artistic labors, and feels that the unauthorized posting was an intrusion into her creative process that has so significantly interfered with her process that she may now be unable to finish the book.  While she would undoubtedly have made lots of money out of completing and publishing the book, this is likely a secondary concern given how financially successful she has been with the first four books, a new book series she has started, and the films of the books.  So are we seeing a significant divide here in practice between a successful author’s interests and potentially the commercial interests of her publishers?  While publishers would presumably be more concerned with money, the author here is more concerned with artistic integrity.  Does this suggest we need to more closely revisit the question of moral rights in the United States?  Might we have lost track of what authors are really concerned about?

It’s also interesting that this is effectively a case of a derivative work created by the author herself.  What would happen if fans disappointed at Ms Meyer’s decision to put the book on hold decide to create their own derivative works, telling the story from Edward’s (and perhaps other character’s) perspectives?  How would this fare under copyright law?  (And think of fair use factor 4 – would the fans be infringing into a potential market of the author if, say, she decided that she would NEVER complete the works, and if the fans did not themselves make any profits from making up the derivative storylines.)

Yale Law Journal Online

From the editors of the Yale Law Journal Online:

=======================================

The Yale Law Journal is pleased to present its new online platform, The Yale Law Journal Online (http://www.yalelawjournal.org/).  YLJ Online will continue the Journal's mission of providing accessible and substantive scholarship through the online medium.  It offers original essays on timely and novel legal developments and responses to articles in the print Journal, as well as adapted lectures and recordings/podcasts of featured pieces.  When the Journal launched The Pocket Part in 2005, it was the first law review to establish an original online companion; as the Journal nears its 120th anniversary, YLJ Online represents the next step in that endeavor.

The launch of YLJ Online's original content section features an essay by Hiro N. Aragaki, addressing the Hall Street v. Mattel litigation and manifest disregard, as well as responses by selected scholars to Michael Stokes Paulsen's The Constitutional Power To Interpret International Law (118 Yale L.J. 1762 (2009)).  In the coming weeks, YLJ Online will present a variety of essays and features on marriage, property, and corporate law, as well as a selection of pieces from the Hon. J. Harvie Wilkinson III and other participants in its inaugural Washington, D.C. conference on the Supreme Court’s certiorari process (http://www.law.com/jsp/article.jsp?id=1202433962900).

Among the many features that YLJ Online offers are Essays (4,000-6,000 words), Commentaries (under 2,000 words), Responses, adapted lectures and solicited pieces.  More information can be found on the Submissions page (http://www.yalelawjournal.org/submissions.html).  All YLJ Online publications are available and fully searchable through LexisNexis and Westlaw.  The Journal also provides all YLJ Online pieces in PDF/reprint format, and podcasts on its website/iTunes for selected pieces.

For questions regarding YLJ Online, please contact the Journal's Managing Online Editor, Jeff K. Lee, at [email protected].

Now available on YLJ Online:

Essay

Hiro N. Aragaki, The Mess of Manifest Disregard, 119 Yale L.J. Online 1 (2009).

Responses

Julian Ku, The Prospects for the Peaceful Co-Existence of Constitutional and International Law, 119 Yale L.J. Online 15 (2009).

Peter J. Spiro, Wishing International Law Away, 119 Yale L.J. Online 23 (2009).

Margaret E. McGuinness, Old W(h)ine, Old Bottles: A Response to Professor Paulsen, 119 Yale L.J. Online 31 (2009).

Robert Ahdieh, The Fog of Certainty, 119 Yale L.J. Online 41 (2009).

=======================================

More on Facebook and the Perils of User Generated Content

According to CNN, the U.S. Secret Service asked Facebook to suspend the use of an application that allows users to create online polls when someone created a poll asking whether the president should be killed.  The possible answers were "yes", "no", "maybe", and "if he cuts my healthcare".

(Cross posted to madisonian.net)

Things We Take for Granted

It used to be that when you wanted to find a law review article, you looked it up in the Index to Legal Periodicals, and then you went to the shelf, found the volume, and read or photo-copied it. Today, you might first Google it, to see if there is a free version online, and if not, if you have LEXIS/Westlaw/HeinOnline/JSTOR access, you might go and search there. If I don't know what article I want (ie, if I need to search by keyword or title), I'll use Lexis or Westlaw first (as they I find their search interfaces to be more efficient), but then if I find an article I want to assign to my students, I'll link to the JSTOR or HeinOnline version because I like the layout better than the text based versions found in Lexis or Westlaw.

This morning I was looking for an additional piece to assign to my Property Theory class on anticommons theory. I wanted something that not only allowed me to further explore anticommons theory, but that would also introduce a new theoretical construct to the students (in this case, the explicit notion of private ordering). I chose Kieff and Parades, Engineering a Deal: Toward a Private Ordering Solution to the Anticommons Problem. I found it in my search results on Lexis (though I had read it before, it didn't come to mind when I was trying to decide what to add as the final piece of reading for this section).

The Lexis page looked like this (click on it to increase the size):

Citation: 47 B.C. L. Rev. 111, January 2007. I went to HeinOnline and looked up Boston College Law Review volume 47. There was no article that started on page 111. I looked again. The HeinOnline database shows that volume 47 is for years 2005-2006, and that volume 48 is for years 2006-2007. I checked volume 48, and there it was, properly listed for page 111 (click image for larger version):

Citation: 48 B.C.L. Rev. 111 (2007).

So, which is it? What is the "authoritative" way to find the citation? I went to the Boston College Law Review page and found this (click for larger version):

For those who dislike Roman numerals, XLVIII translates to 48. What I would then think of as the definitive source, the publication itself, tells us that 48 is the right number (I was pretty convinced of this from the HeinOnline site, which uses page scans, but wanted to check just to be sure).

If this had been for research and not for class, I might not have used the scanned version from JSTOR or  HeinOnline, especially if I wasn't going to print the piece in question. Format doesn't matter to me as much in that case, I just need quick access to the data. I might have used the wrong citation for this piece, and if the law review where my piece was going to be published also used Lexis to check cites, then it would have gone into print that way. And none of us would have had reason to doubt the citation. That is, until someone called it into question because they couldn't find the publication as listed.

I'm not sure what the upshot of this is; I was surprised more than anything else (not shocked, mind you, just surprised). It's an error, for sure, and a clear one at that, but not one that would have caused any loss of life, so I don't want to dramatize it. Do we just overlook it? Do we now need to use both Lexis and Westlaw, or go to the actual volume of a law review, to check on citations? Thoughts or responses much appreciated.

Are Online Networks Company Towns, Shopping Malls, or Neither?

The Southern District of California District Court held last week that the First Amendment does not apply to stop Sony from removing people from its "Playstation 3 Network" based on their speech. Erik Estavillo sued  Sony seeking $55,000 in damages, alleging that (among other claims) the First Amendment's guarantee of free speech precluded Sony from kicking him off of the Network. The District Court held that because Sony was not the government (and thus was not a state actor for First Amendment purposes), nor a "company town" (an exception to the state action requirement of the

First Amendment), nor maintained a sufficient structural or functional nexus to the government (a second "exception" to the state action requirement of the first amendment), the plaintiff could not maintain an action against Sony based on a claim of infringement of free speech rights. [note: the case is Estavillo v. Sony Computer Entm't Am. Inc., 2009 U.S. Dist. LEXIS 86821; as of this writing I cannot locate either a Westlaw version or a free online version; it seems the Southern District of California does not publish its opinions online]

The result really isn't too surprising, as the "company town" exception to a private property owner's ability to control speech unhindered by the First Amendment relies on the notion that the company not only owns the land in question, but takes over the responsibilities usually associated with a municipality (according to the U.S. Supreme Court in Marsh v. Alabama, 326 U.S. 501 (1945)). The Supreme Court has refused to extend the doctrine to cover shopping malls in many situations, for example, though some state courts and legislatures have done just this (and it is consistent with Supreme Court precedent in the area).

Even given its rather brief rejection by the District Court, however, the argument is not entirely without merit. It has also been made (though not in this precise context) in a 2004 law review article [pdf] by Yale Law Professor (and Balkinization blogger) Jack Balkin:

“Although [the online community owner] does not take over “the full spectrum of municipal powers” in real space, it does exercise all of those functions in the virtual world. If any private entity could be regarded as a company town, it would be a virtual world. This is especially so because the whole point of the virtual world is to create community (or communities), and action in the virtual world occurs through the exchange of ideas.”

Balkin points out that not every attempt at creating an online "space" (my word, not his) will end up creating a space to which the First Amendment should apply. Rather, those where the space is created "to form communities or create channels for general public communication" could be subject to the First Amendment's requirements. Whether Sony's Playstation 3 Network meets this criteria would involve much more discussion about how it functions and what its purpose is (knowing what I do about it I doubt it does), but I see another problem that isn't explicitly addressed in the case or in Balkin's article.

Cloud computing? Maybe not . . .

The "next big thing" in Internet applications is called "cloud computing" (there's even a Cloud Computing Journal). The idea is rather simple: you (the user) carry around a computer that has a web browser on it. Using the web browser, you access the software you want, including things like word processors (now available through Google Apps, for example) and sales software (the "big example" of cloud computing). You no longer need to install, upgrade and diagnose faulty applications. You pay for the service (it's sometimes referred to as "software as a service" or SaaS), and not the software.  IBM's newest effort is described like this:

The new IBM Smart Business Desktop on the IBM Cloud is a subscription service for virtualizing desktop computing resources, providing a logical, rather than physical, method of accessing data, computing power, storage capacity and other resources.

Some people think this is the "wave of the immediate future" and that all things will be "cloud" based. Others wonder about security and still others worry about privacy. Me, I worry about this scenario (after the jump):

A Self-Referential Book Review: On Blogs and Blogging

At the risk of sounding like a coffee table book about coffee tables in the shape of a coffee table...

I have just completed Scott Rosenberg's new book, Say Everything.  If you have the time, it's a really interesting history of the development of blogging, and of the criticisms launched at blogging over the years.  As someone who teaches cyberlaw and is trying to update a casebook for the Web 2.0 generation, it has some really useful thoughts that build upon commentaries and criticisms about the early Internet.  Will the ability to communicate online polarize us all in our views rather than broadening our horizons? Does the Internet spell the death of traditional media and, if so, why?  Can the Internet in general, and blogging in particular, ever be successfully commercialized?  Should it be?

The book also contains an impressive amount of information gleaned from interviews with bloggers and from blog archives over the years that range from early blogging, to military blogging, to mommy-blogging, and to being "dooced" (ie losing your job because of something you said on a blog).

I particularly liked the last few chapters where Rosenberg makes analogies between blogging and other forms of corporate and social media over the years - the telephone, the television, Twitter (miniblogging), and online social networks.  Really good food for thought - and there might be a few potential cyberlaw essay questions lurking in there.

Strange Copyright Claims: Copyright and Train Schedules

I was, for awhile, trying to collect strange (ie, largely indefensible) copyright claims. I didn't get a lot of feedback on this, so the project died. You can, of course, always visit Chilling Effects to find these kinds of cases, but there are also reasonable (even if objectionable) claims there, as well. Sometimes, however, when one of these comes to my attention, I have to bring it up. This is one of those times.

A dispute has been simmering for the past week or so over Chris Schoenfeld's creation of an iPhone app to show the train schedules of the NYC Metropolitan Transportation Authority. Schoenfeld also runs the website "StationStops", which focuses on transportation issues north of NYC (and is often critical of the MTA).

According to reports (there are now many, including video), the MTA started with a phone call threatening to "take down" Schoenfeld's site, but then backed off and insisted by letter only that he remove his iPhone app, which they claim was using their copyrighted schedules without a license. Schoenfeld, for his part, says he's willing to license their schedules, but there are two sticking points: 1) the MTA wants royalties for his past use, and a $5,000 up front fee. 2) Schoenfeld wants database access for schedule updates (which he current does not have, which means he manually recreates the schedules himself). The MTA, according to Schoenfeld, is unwilling to negotiate.

I held off blogging about this for awhile because I was sure I was missing something. The MTA's claim sounds in copyright, but I cannot find any way to make myself believe that the MTA has any colorable copyright claim here. In the U.S., "facts" are not protectable under copyright. You might arrange facts in a particular way and gain protection for your arrangement of them, but you cannot copyright facts as such (this is based on the famous, or perhaps infamous, doctrine that grew from the U.S. Supreme Court case of Feist Publications, Inc. v. Rural Telephone Service Co., which involved people's names, addresses and phone numbers in a telephone book). As with people's names and phone numbers, the time a train is scheduled to leave and depart a particular station is a fact. According to the latest reports, Schoenfeld is in negotiations with the MTA over the situation, and the EFF has also been in touch with him.

I hope that all the MTA is now negotiating for is access to their database, and that they're no longer continuing to assert their "copyright" claims.

via SlashDot

Search Engines: Origins (Trivia)

Here's a trivia quiz about the history of Internet search engines.   Do you know how the following search engines got their names?

1. Archie
2. Lycos
3. Yahoo!
4. Overture
5. Google

Answers below the fold...

Thinking about persistence

I would like to thank Dan Filler for inviting me to join the Faculty Lounge this month. I used to blog at "Displacement of Concepts,"  but found that trying to teach, conduct traditional scholarly research, and perform service to the school and the community precluded maintaining a blog on my own. The current iteration of that site is mainly a placeholder. I simply did not have enough time to articulate interesting things. So I'm very happy that Dan asked me to join the Lounge for the month of August, and I'm looking forward to contributing to the conversation.

On a related note (though the relation may take awhile to get to),  back in 2008 I wrote a piece entitled, "Growing Up Digital, Control and the Pieces of a Digital Life" (PDF), which appeared as a chapter in the book, "Digital Youth, Innovation and the Unexpected." I argued that the digital media of today change things qualitatively from the past in terms of the chances that something stupid you do will be caught in a photo, on an audio tape, or in a video. If that happens, the potential for embarrassment is high, just as it always has been. But what differs today, especially for young people, is that these gaffs, exposures, and embarrassing moments may follow them through life. Forever (or at least as long as they live). I refer to this as "pernicious persistence."

Put another way, it would be difficult for someone to find a photograph of me from when I was a child, let alone an embarrassing one. They are in boxes in my closet, or in my dad's basement. To find one would be a time intensive task, without promise of success. If someone had found such a photo twenty years ago, when I was in my twenties, they would have been able to show it to their friends, and that would likely have been it.

Skynet Comes to Hillsborough (the machines really are taking over)

Well, I was up Hillsborough recently to check out some of the historical sites up there.  (I wrote a little bit about Thomas Ruffin's grave not too long ago.)  On the way back, there was a crew working on the power lines.  And you know what?  They had a machine directing traffic: the machine was a portable stop sign, which eliminates the need for a person to stand there with a sign and shift from stop to slow.

So I grabbed my camera and took a picture of it. I'm not sure if the guy on the right in the background is controlling the arm or not--which I suppose has some bearing on just how similar this is to Skynet of Terminator fame.  However, it certainly seems like the NC Department of Transportation has figured out some more ways of cutting costs and human jobs.  Now that computers are taking over the role of college counselors and traffic signals at road construction, they're probably not too far behind taking over law professor jobs, too.

Hey, the New York Times is reporting that scientists are worried about this.  So one question I'd have about this is, how do we start making nice with the machines before they get too angry with us?

The Aeronaut in the Garden: A New (Old) Case on Foreseeability

Well, this is, so far as I can tell, the anniversary of my oldest memory.  I recall running up the stairs in our house to call mom to come down and watch the television--a little black and white set--because we were about to land on the moon.   

So, in honor of what Kim Krawiec has termed "Moon Day," I thought that I'd post about an obscure early nineteenth century case, of a balloonist.  The court referred to him as an "aeronaut."  He went up in  a balloon -- but not very far.  And as the balloonist -- who had fallen from the carriage-- dragged along the ground, he called for help.  Spectators ran after it ... into a neighbor's garden and trampled the crops in the garden.  The garden's owner sued the balloonist for damages and won in the New York.  The damages were upheld on appeal in Guille v. Swan, 19 John 381 (NY Sup. 1822).  

The syllabus from the reporter tells the story:

Swan sued Guille in the Justices' Court, in an action of trespass, for entering his close, and treading down his roots and vegetables, &c. in a garden in the city of New-York. The facts were, that Guille ascended in a balloon in the vicinity of Swan's garden, and descended into his garden. When he descended, his body was hanging out of the car of the balloon in a very perilous situation, and he called to a person at work in Swan's field, to help him, in a voice audible to the pursuing crowd. After the balloon descended, it dragged along over potatoes and radishes, about thirty feet, when Guille was taken out. The balloon was carried to a barn at the farther end of the premises. When the balloon descended, more than two hundred persons broke into Swan's garden through the fences, and came on his premises, beating down his vegetables and flowers. The damage done by Guille, with his balloon, was about 15 dollars, but the crowd did much more. The plaintiff's damages, in all, amounted to 90 dollars. It was contended before the Justice, that Guille was answerable only for the damage done by himself, and not for the damage done by the crowd. The Justice was of the opinion, and so instructed the jury, that the defendant was answerable for all the damages done to the plaintiff. The jury, accordingly, found a verdict for him, for 90 dollars, on which the judgment was given, and for costs.

And Chief Justice Spencer's conclusion that the balloonists was liable for the consequences:

[I]t is certain, that the Æronaut has no control over its motion horizontally; he is at the sport of the winds, and is to descend when and how he can; his reaching the earth is a matter of hazard. He did descend on the premises of the plaintiff below, at a short distance from the place where he ascended. Now, if his descent, under such circumstances, would, ordinarily and naturally, draw a crowd of people about him, either from curiosity, or for the purpose of rescuing him from a perilous situation; all this he ought to have foreseen, and must be responsible for. Whether the crowd heard him call for help or not, is immaterial; he had put himself in a situation to invite help, and they rushed forward, impelled, perhaps, by the double motive of rendering aid, and gratifying a curiosity which he had excited. Can it be doubted, that if the plaintiff in error had beckoned to the crowd to come to his assistance, that he would be liable for their trespass in entering the enclosure? I think not.

Now there's a case we could have some fun with in torts!  (And in fact Dean Wigmore used to have fun with it; it's in his 1912 casebook.)  Makes me wonder what other cases are out there waiting to be rediscovered.

I talk more about the law in the garden in the antebellum era -- and especially about depictions of property in art and their relationship to property law in "Property and Progress: Antebellum Landscape Art and Property Law."

The image is from the Library of Congress; it is of Thaddeus Lowe in an observation balloon during the Civil War. Another image, from Harper's Weekly in 1861, is here.

Safe To Visit China Again!

From The Telegraph:

China has outlawed the use of electric shock therapy to treat internet addiction, after a scandal at a hospital in the Northern province of Shandong.

 

Internet addiction has become a growing problem in China, where officials believe as many as four million people spend more than six hours a day online.

Several clinics have sprung up, offering parents the chance to "cure" their children of the uncontrollable urge to blog or play online games.  (emphasis mine)

HT (Al Roth)

Your Faculty Email: Lessons From Enron?

How’s the traffic on your faculty listserve these days?  Quiet? Active?  The answer, along with other information about inter-faculty email traffic, may hold the key to predicting both your school’s social health and impending crises.  Consider, for example, how the logs of DePaul and Villanova may have looked in recent months.

“EMAIL logs can provide advance warning of an organisation reaching crisis point. That's the tantalising suggestion to emerge from the pattern of messages exchanged by Enron employees,” says this article in New Scientist. 

In a new paper, Identification of Organizational Tension Using Complex Networks, presented at the International Workshop on Complex Networks in May, Ben Collingsworth and Ronaldo Menezes analyze records (but not the content) of 517,000 emails sent by 150 Enron senior staff to around 15,000 employees during the company's final 18 months.  They found that:

the number of active email cliques, defined as groups in which every member has had direct email contact with every other member, jumped from 100 to almost 800 around a month before the December 2001 collapse. Messages were also increasingly exchanged within these groups and not shared with other employees.

Menezes thinks he and Collingsworth may have identified a characteristic change that occurs as stress builds within a company: employees start talking directly to people they feel comfortable with, and stop sharing information more widely. (emphasis mine)

From the abstract of what appears to be the referenced paper, but with a slightly altered title:

When an organization is in trouble, we observe social tension among its employees. That being the case, one should be able to discern this tension by examining properties of a social network of the employees-the network should reflect the employees’ mood; the fears, worries, gossips that are circulating, the good and the bad, are all reflected in organization’s social network. One of the best representations of the true social organizational social network can be constructed from email exchange. The issue we investigate in this paper relates to timing: when does the network exhibit social tension when it is known to be present in the organization? In this paper, we provide a temporal analysis of the email social network constructed for the Enron Corporation and show that changes in network characteristics strongly correlate to real-world events in that organization. More importantly, we show that this correlation is time-shifted and appears in the network before the event becomes common knowledge; our hypothesis is that we can use the anomalies in the network to identify social tension in the organization and consequently help mitigate its consequences.

New Scientist concludes, however, that replicating the study’s findings may be difficult.  Because of privacy concerns, e-mail logs are rarely made available to researchers.

Nerd Fun

From Wired:

Unix weenies everywhere will be partying like it's 1234567890 this Friday.

That's because, at precisely 3:31:30 p.m. Pacific time on February 13, 2009, the 10-digit "epoch time" clock used by most Unix computers will display all ten decimal digits in sequence. (That's 6:31:30 Eastern, or 23:31:30.)