Thursday, August 30, 2012

Copyright Defenders - Are They After You?

I've spent some space the past two weeks talking about copyright, discussing questions that have been raised about its place in the future and the risks in unauthorized use of copyrighted material.

Well now comes a new spin.  And I guess it depends on which side of the equation you find yourself at any given time:  creator or user.

A fellow small firm lawyer in a small Midwestern town who primarily handles intellectual property matters recently received an unsolicited email from Copyright Defenders, Inc.  It was seeking to enlist his firm in the legal network for Copyright Defenders.  They would find the culprits violating film and music copyrights, and his firm would go after them.

Copyright Defenders, Inc. (Click Here) is a Nevada corporation that uses computer technology to locate and track violations of copyright on peer-to-peer networks.  It then  sics its stable of IP law firms on the offending party.  While the target seems to be movies, videos and music, the fact that such a company exists, and the technology it uses, must give us all something to think about.

I looked up Copyright Defenders and found a LinkedIn page for its president, Ralf Pytlik.  The aggressiveness of language and reference to technological resources should give anyone pause before downloading that unauthorized copy - or maybe any copy -  of Hunger Games or Taylor Swift's latest song.

Here's what it says (in part):

"Copyright Defenders, Inc. is a leading company in identifying copyright infringements on Peer-to-Peer networks (P2P) for the software, film and music industry.

Thanks to our specially crafted software and cutting edge technological knowledge, we are able to automatically recognize, analyze, determine and archive copyright infringement evidence on P2P networks following the forensic standards as required for the legal system."

Certainly holders of copyrights have the right to make sure that their intellectual property is not being pirated.  As writers, we should stand up for protection of intellectual property.  We certainly don't want people stealing our work.

But still . . . there's something Jason Bourne-ish about "cutting edge" computer software checking constantly, recognizing and analyzing internet traffic for the smoking guns of intellectual piracy.   Something about this smacks of the deepest recesses of the Patriot Act.

Are they checking up on me? Do they know I streamed that NC17 movie from Netflix?  Do they know about that book I borrowed from the library in 6th grade and never returned?  OMG, I must owe half a million dollars in fines by now!  

So as you go to sleep tonight, know that someone - or something - is out there going beep in the night, scanning through the ether, taking note of each bit and bite as it passes through the internet.

Makes you feel cozy all over, doesn't it?

*In case you're wondering, all images used on this blog are either (1) my own, (2) in the public domain (such as the copyright symbol), or (3)  used pursuant to purchased rights or licenses (such as the Greetings from Jersey image, or the one above).

Wednesday, August 29, 2012

"You Wrote It" May Not Mean "You Own It"

Just because you wrote it (or said it), doesn't mean that you own it.

That's the lesson of the current fight over catch phrases created by "The Situation" on the popular M-TV show Jersey Shore.  It is also a lesson for writers who sign contracts or do work for hire.  Your words may no longer be your own.

Viacom, parent company of M-TV, has sued Michael "The Situation" Sorrentino and MPS Productions (his brother's production company) over the rights to such timeless phrases as "twinning"  (having sex with twins) and "GTL" (gym, tan, laundry) - apparently "The Situation's" daily routine.

The lawsuit is covered in an online article in the Hollywood Reporter (Click HERE).  Viacom claims that when Sorrentino signed on to Jersey Shore, he signed away his rights to all “all ideas, gags, plots, texts…and other material" created on the show, including catchphrases.  Complicating the matter, MPS Production has signed contracts with Reebok for the marketing some of those catchphrases on Reebok apparel.

The Situation isn't new to the world of intellectual property - as strange as that pairing may seem.  MPS apparently is engaged in a legal battle with clothing company Abercrombie & Fitch over its tee shirts that say "The Fitchuation."  

I must admit, I've never seen Jersey Shore.  I've seen clips of drinking and brawling, and a tiny person named Snooky with an accent so thick it seems faked.  I just don't get it.

But of all the things I've seen people fight over in court, "The Fitchuation" may be the most bizarre.

However there is a valuable lesson in all this.

Writers need to take heed.  Those contracts that an author may be so eager to sign are not just pieces of paper.  They contain language that impacts the author's rights.  As in the case with the Jersey Shore contract, it may give away rights in ways that the author simply doesn't perceive.

The small print does make a difference.  Authors need to make sure they understand the consequences of any contract or agreement before signing. Otherwise you might find yourself in the same situation as, well, The Situation.

Sunday, August 26, 2012

Cut, Paste and Copyright

I've been exploring the seeming demise of the copyright, particularly when it comes to internet usages.  But while technology has erected obstacles to the effectiveness of enforcing copyright, those rights do exist.  And if you violate them, you may be the recipient of a nasty letter from a lawyer demanding compensation.

Images and articles on the internet are not fair game to copy and use as you see fit.  This is true even if the item does not contain a copyright notice or symbol.  In fact its even true for such websites as Pinterest, which exists entirely for the purpose of reposting images from the internet.

A question came up at a recent writers conference about using images off the internet. Unfortunately some of the answers were not quite on target.

Copyright protection applies to “original works of authorship fixed in a tangible medium of expression.” That's it.  No other requirement.  No copyright registration is required, nor does the author have to use the  © symbol, or any other type of notice.

No attribution is needed for copyright to apply.  And even a mistake attribution of "anonymous" or "traditional" or "author unknown" does not provide immunity to copyright protection.

One group recently learned this lesson the hard way.  A speaker at its annual conference used a poem which he found on the internet - a poem largely attributed to "anonymous -- in both his materials and his presentation."   A few weeks later, the organization received a demand for payment from the attorney for the author of the poem.  It seems the author has a bit of a cottage industry tracking the use of her poem on the internet then having her lawyer send demands for payment for its use.

The lesson is simple. Seek permission or purchase the rights.  Remember, as a writer, you have all copyright ownership in your works.  But so does every other writer, artist or photographer.

For a worthwhile article on copyright, take a look at "Just Because You Can Copy It Does Not Mean That You May Copy It" by Mintz Levin.

But what about fair use?  What about just quoting a few lines? How does copyright differ from plagiarism?  Those are some of the topics I'll be taking a look at in the next couple of weeks.

Friday, August 24, 2012

Copyright is a Contaminant - A Glimpse at the Bleak Future for Copyright Protection

Copyright is a contaminant, an impediment to free global access and the progress of digital commerce.

This isn't some radical hacker's viewpoint.  This is the prevailing view in academia among copyright scholars and students, according to a fascinating MUST READ article in the July 23 issue of Fortune Magazine.

Roger Parloff's article, MegaUpload and the Twilight of Copyright, is amazingly well-written, well-researched, and frightening as hell for copyright holders.   

The starting point is the criminal prosecution of internet multi-millionaire Kim Dotcom (not the name he was born with) and his MegaUpload file "locker" business consisting of enough servers to store three times the content of the Library of Congress.

Dotcom's business is to provide lockers for uploading and downloading content.  His lawyers equate the business to Dropbox and other cloud storage services.  But the reality is that over 90 percent of its customers only download -- movies, music, television shows and ebooks.  And none of the people downloading pay anything other than download fees to MegaUpload.

But prosecutors may have a hard time convicting Dotcom.  The Supreme Court's hallmark 1984 decision in Sony v. Universal Studios effectively immunized providers from liability for illegal use by customers provided that the product could have a legitimate use.  That was the case that tried to hold Sony responsible for its customers using Beta videotape to copy Universal's movies.

The principle set out in Sony has remained unchanged.  And the much touted Digital Millennium Copyright Act did not change this principal of law, and in fact has done little to add protection to those holding copyrights.

Parloff's article goes in to a great discussion about the contrasting positions of those who seek more copyright protection, and the growing majority who view copyright as a "contaminant."  It's war.  Lined up on one side are those who create and distribute content, every one from Disney, Dreamworks, the entire recording industry and the big five publishing houses, to the solitary author self-publishing her first book.  Lined up on the other side are the distributors, not just Kim Dotcom and some computer genius in his college dorm, but also Google, Paypal, and AT&T.  But also lined up with the distributors are the tens of millions of users whom the distributors serve -- those people who have become accustomed to finding any content they want for free on the internet.

The Dotcom / MegaUpload case will be worth following.  But the increasing view appears to be that copyright is a "containment."   It is an increasingly dominant view in business, academia and in the eyes of the general public which downloads millions of  illegal files every month.  This cannot help but be troubling for anyone who is involved in writing or the creative arts. 

Wednesday, August 22, 2012

Technology, Copyright and the Future

In 1970, Alvin Toffler wrote Future Shock.  It is one of the most far reaching and prophetic books ever written.

Toffler, who at 84 is still thinking and writing about the future, dissected the exponentially growing rate of change and the impact it would have on psyches and society.  According to Toffler, as knowledge grows at faster and faster rates, people know less and less of the knowable universe, and with that comes a dramatic impact on the ability of people to feel grounded and secure in the world around them.

Over the past decade, this has hit full force for writers, publishers and others who live in a world of words.  The internet, the demise of brick and mortar book stores, and the the growth of ebooks have changed publishing and writing forever.

Publishing and writing is experiencing much of what the music industry encountered a decade ago with streaming, Napster, infringement lawsuits, and finally Itunes andIpods.  It was the genius of Steve Jobs and his little devise that showed the industry a way to make money in the age of portable digital music.

Kindle and Amazon have slipped into the place Steve Jobs created within the music business. We have seen the future and it is digital.  Hell, we are in the future.

Which brings us to writing, publishing and copyright in our electronic future. Tim Parks has written a wonderful essay, "Does Copyright Matter,"  in the New York Times Book Review.  The article challenges writers -- and everyone -- to think about the concept of copyright in this modern world.  It's not a new battle.  As Parks points out, Charles Dickens battled his own unauthorized versions.  But today's landscape is much different.

In today's world, it is so easy to find something on the internet, to copy and paste with a couple of clicks, and post whatever you find, no matter how extensive, to the entire world.  In such a world, what does copyright mean? 

In this digital present, we need to ask two important questions:

(1)  Are we ourselves guilty of this unthinking use of the intellectual property of others;  and

 (2) Are we degrading the value of our intellectual work product, imbuing upcoming generations with a value system that says "if it's on the internet, I can use it."

I don't have a crystal ball and cannot see the future - certainly not as well as Alvin Toffler.  But for those of us who write,  it is  worth some thought. 

Friday, August 17, 2012

"Like" On Facebook Is Not Speech Protected by the 1st Amendment

Is "like" free speech?  Apparently not, at least not in Virginia.

An interesting issue has evolved at the crossroads of technology and the First Amendment.  Is clicking "like" on Facebook protected speech?  The case should be of interest to many writers who use Facebook and other social media to promote their work.

A federal judge in Virginia has ruled that "Like" is not speech and therefore not protected by the First Amendment.

The issue, as do so many First Amendment / Civil Rights issues, arose out of a political campaign and a rabbit-eared sheriff.  For some reason, many First Amendment issues arise in the context of sheriffs, who sometimes view themselves as being the unassailable law of their domain.  (The seminal U.S. Supreme Court case on the First Amendment -- New York Times v. Sullivan -- involved a sheriff).

Daniel Ray Carter, Jr., along with several other employees of the Hampton, VA Sheriff's Department, went on Facebook and clicked "like" on a page for a candidate for Sheriff.  The problem was the candidate was running against their boss, long-time Sheriff B.J. Roberts. 

When Sheriff Roberts saw that Carter and the others had "liked" the Facebook page of his opponent, he fired them.

Carter sued for violating his First Amendment rights and his civil rights.  But Federal District Judge Raymond A. Jackson sided with the Sheriff, holding that
 "clicking" on a Facebook icon was not sufficient speech to warrant First Amendment Protection.  Specifically, his opinion stated:

"No such statements exist in this case. Simply liking a Facebook page is insufficient. It is not the kind of substantive statement that has previously warranted constitutional protection. The Court will not attempt to infer the actual content of Carter’s posts from one click of a button on Adams’ Facebook page. For the Court to assume that the Plaintiffs made some specific statement without evidence of such statements is improper. Facebook posts can be considered matters of public concern; however, the Court does not believe Plaintiffs Carter and McCoy have alleged sufficient speech to garner First Amendment protection."

My personal view is that this decision shows a remarkable lack of understanding of both the expanse of the First Amendment and current technology.  I am unaware of any other case that determines that something isn't "enough speech" to warrant First Amendment protection. 

Freedom of speech and association goes beyond standing on a soap box in the public square.  It encompasses all manner of expression - except apparently "Liking" on Facebook while in Virginia.
Carter has appealed to the 4th Circuit Federal Court of Appeals, and both Facebook and the ACLU have filed briefs in support of Carter.  

For news coverage, take a look at the Washington Post article: A Facebook Court Battle.  

For a detailed analysis of the case, check out the Citizens Media Law Project by CLICKING HERE. 

Monday, August 13, 2012

Why a Blog on Law for Writers?

So in a universe populated by nearly as many blogs as stars, why another blog?

The simple answer is, "I want to."  But perhaps a slightly expanded answer is in order - if not for prospective readers, then for myself.

At writing conferences I've noticed three things:

1.  Hostility toward lawyers as a useful profession (nothing new there).

2.  Writers and prospective writers who have both legal-related questions and  misconceptions about the law.

3.  Agents (and others) trying to play lawyer who offer legal advice and answers to legal questions, many of which are wrong.

This led me to believe there is a need for a blog dealing with Law for Writers.

This, and the inspiration drawn from presentations by Jane Friedman, a frequent writers conference speaker & now editor of a literary magazine at the University of Virginia, gave rise to my idea to write this blog. 

Speaking of me -- which I hope not to do very often -- here is just a little bit about me.

I am a lawyer for more than 30 years and a writer in one form or another since grade school.  Visions of John Grisham and Scott Turow dance in my head.

As to my practice, I have seen almost every side of the legal profession.  I spent 13 years in a 200+ law firm where I was a litigation partner.  I spent another 13 years at a 7-person firm.  Now I have my own solo practice - Terrell Law Office in Indianapolis.

I have extensive experience in civil litigation -- jury trials, federal litigation, appeals in state and federal court.  I have handled numerous types of matters that impact writers, including  first amendment dispute, pre-publication review, intellectual property cases, invasion of privacy matters, civil rights litigation,  and access to public records.  I also have extensive experience in drafting and reviewing contracts of all types.

I've represented media clients, authors, individuals and small businesses in everything from contracts, to real estate, to estate planning.

I started my career as a journalist.  Over the years, most of my writing has been for professional journals and papers for seminars and legal conferences on a wide range of law-related topics. The article which received the most response was a followup to an article about depression and lawyers.  It focused on one of my best friends who on a cold Montana night committed suicide.

But I also write just because, well, because I write.

My first novel, Stars Fall, a self-published legal thriller, is getting a great response on Amazon (and elsewhere).  My short story "Visiting Hours" won the 2011 Manny Award for best short fiction at the 2011 Midwest Writers Workshop.  I was selected as a 2011 Fellow for the Midwest Writers Workshop Retreat.

So, as I start along this blog adventure, I hope to provide useful information that will help writers of all types.  I also hope to improve your image of lawyers as a useful profession.  And finally, just help with my writing Jones.

We'll see how it works out.