The Dark Knight Gets A "Clean Slate": Lawyers, Batgirl & Fictional Technology

Wonder why lawyers seem so "anal" over intellectual property rights?  Here's an example.

Dirksen Building - home of 7th Circuit Court of Appeals

During the mega-hit movie "The Dark Knight Rises," Catwoman extracts a promise from Batman for her help -- a "clean slate" removing her entire criminal history from every law enforcement computer in the world.  After her contribution to saving Gotham, Bruce Wayne makes sure Catwoman's criminal history is erased from every computer.

But suprise! There actually is a product called Clean Slate.  And Fortres Grand, maker of the software, has lawyers.

And those lawyers sued Warner Brothers asserting that the fictional "clean slate" alluded to in the movie would cause confusion with its own software, a utility that "cleans" the history from your web browser.

The U.S. 7th Circuit Court of Appeals in Chicago held for the film makers, ruling that there was not a substantial risk of confusion cause by the fictional reference to a clean slate in the Batman movie. Judge Manion, writing for the Court, found that the software company's allegation of reverse confusion was "implausible."

So Warner Brothers won. But at what cost?  First there are lawyers fees that can ratchet up at $500 to $1,000 an hour for big firm partners.  There there are expenses.  In addition to lawyer time, court reporters will charge perhaps $1,200 or more for the transcript of a day-long deposition. Then there are the hidden costs of lost time, productivity and energy of executives, in-house lawyers, risk management people, and others involved in the project who are dragged into the lawsuit.

The real lesson is that even the most innocent of references, even to a fictional "product", can bring down the wrath of intellectual property litigators and patent trolls.  It is why lawyers are often so cautious, even to the point of being perceived as "anal," in finding problems and issues where most people, including writers, see none.

While many lament that a lawyer "can find a gray cloud in every silver lining." that is often the most important part of what lawyers do.




photo credit: <a href="https://www.flickr.com/photos/kenlund/11004376983/">Ken Lund</a> via <a href="http://photopin.com">photopin</a> <a href="http://creativecommons.org/licenses/by-sa/2.0/">cc</a>

Justice Department to Side With Publishers Against University Libraries?

A subtle legal filing last week has many in the university community gnashing their teeth at the prospect of the Department of Justice siding with publishers in a major case headed to the U.S. Supreme Court which may help define the boundaries of "fair use."

The DOJ filed a motion for extension of time to file a brief in the case of Cambridge University v. Becker, otherwise known as the Georgia State Copyright Case.  While not conclusive, the fact the DOJ filed this motion signals that the DOJ may enter the case on the side of publisher.

And that possibility has disappointed, upset, and in some cases, terrified university librarians and university communities across the country.

The case is complex.  The District Court's decision on May 11, 2012 was 340 pages long. That's effectively a book on copyright and fair use.

In essence, the case is about 99 examples where the Georgia State University library electronically copied portions of hardcover books used in classes at the university -- so-called e-reserves.  For many, the galling part of this litigation is that it was brought by Cambridge University Press and two other university presses.  Many consider that these university presses are simply carrying water for bigger for-profit publishers, who have used the non-profit university presses to present a more sympathetic case.

The District Court held in favor of Georgia State in 94 of the 99 copies at issue. The Court found a presumption that if the copying involved less than 10 percent, it was fair use.  However the Court set out the possibility that if publishers established a reasonable cost structure for limited copying of books, that universities (and others) may be required to pay for their copying, even if it was less than 10 percent of the book.

The case is another example of the inherent conflict between fair use and protecting the property interests of publishers and authors, brought on by technology, specifically scanning and the ease of electronic copying. 

For a good detailed account of the reaction in academia, take a look at Scott Jaschik's report on the Higher Ed website.  CLICK HERE.

*photo credit: <a href="http://www.flickr.com/photos/donkeyhotey/5789848847/">DonkeyHotey</a> via <a href="http://photopin.com">photopin</a> <a href="http://creativecommons.org/licenses/by/2.0/">cc</a>

Plagiarism Detection Tools

In times past, plagiarism was very difficult to detect.  But no more.

Plagiarism tools are just a mouse click away *

Now an Internet connection and the click of a mouse can detect the plagiarist in seconds.  And they are getting faster and more proficient every day.  And it is no longer a service restricted to those those with financial resources.  Many of the online services that detect plagiarism are free.

For eons, teachers and professors often suspected students of plagiarizing their work.  Sometimes the phrasing of papers in a class was just too similar, or the student who had difficulty determining subject from verb suddenly turned in a paper that sang with stylish prose.  But except for the student who simply copied from a book in the high school library, or tried to claim the words of Emily Bronte as her own, the teacher had a difficult time proving her suspicions.

The problem was exacerbated in the 1990s as services selling term papers over the Internet proliferated.  For $50, you could purchase an "A" paper from a university on the other side of the country, download it, print it off on your own computer - even adding a spelling mistake or two to allay suspicion.

But no more.

The past decade has seen the development of a myriad of plagiarism detection systems.  Whether it's protecting your own work, or making sure that the work submitted by others is truly original, these are useful tools and the bane of the lazy student.

How do the programs work?  They all have their differences, but essentially they create a huge database of student papers and other known works, as well as capabilities of searching online resources.  A student, teacher or publisher then submits the new material.  The computers run a check and determine if there are large segments of text that are copied exactly or nearly from all the text in the database.  The system then spits out a report on the likelihood of copying, and the source from which the copying may have occurred. 

Among the pay resources available:

Turnitin - an online service by iParadig used by many schools, colleges and universities

Attributor - for protecting authors and publishers from unauthorized use of content

Veriguide

PlagScan

Copyscape (for checking online use of your copyrighted material)


Among the free resources for plagiarism checking:

Plagium.com

Chimpsky - developed by the University of Waterloo

eTBlast - provided by Virginia Tech



*  photo credit: <a href="http://www.flickr.com/photos/andormix/4866867005/">Andormix - Isaac Torrontera</a> via <a href="http://photopin.com">photopin</a> <a href="http://creativecommons.org/licenses/by-nc-sa/2.0/">cc</a>

Handy Tool to Determine Copyright Status

Have a question about the copyright status of a particular work?  The internet provides two quick and easy references to give you a quick answer.

Illustration through Open Source Art, Royalty free license

Digital Copyright Slider is a nifty little online tool for giving you a quick idea about the applicable copyright status of any published work. The Digital Copyright Slider is a tool developed by the American Library Association, and available for sharing pursuant to a Creative Commons Copyright.

Click here to link to the site.  Then you just slide the cursor down the scale until you  hit the applicable type of work and date. 

This little tool does not provide a detailed legal anaysis of copyright for any particular work, but it does give you a quick at-a-glace, rule of thumb.

A second more detailed resource is the flowchart developed by Sunstein Intellectual Property Group.  At first glace, it is a little more complicated.  But it provides a more detailed anaysis which you might expect from a law firm website.  Click here to link to the flowchart. 

For researchers, writers and educators, they are both useful tools to have in your internet toolbox.

The Long Arm of Facebook Shuts Down Page for Copyright Violations

It was the long arm of Facebook, not the law, which shut down The Cool Hunter Facebook page for repeated copyright violations.

The Cool Hunter is an interesting website (click here) that features artsy-fartsy photos of architecture, art, travel, clothing, and even advertisements.  According to its founder, Bill Tikos, The Cool Hunter's Facebook page was growing by 1,500 to 2,500 "likes" per day.

But no more.

Not sure this has long-term ramifications for writers.  But this is another example of the conflict that continues to bubble and percolate at the intersection of technology, social media, and copyright law.



 
photo credit: <a href="http://www.flickr.com/photos/27718575@N07/4308584630/">Oliver Hine</a> via <ahref="http://photopin.com">photopin</a> <a href="http://creativecommons.org/licenses/by-nc-nd/2.0/">cc</a>

Can Computers Replace Writers?

Will computers replace writers?

Nonsense, you say?  Well look a little closer and you will find that writers already are being replaced by computer programs.
 
Remember the old legend about an infinite number of monkeys with typewriters, given an infinite amount of time, would replicate the complete works of Shakespeare?  Well now those monkeys are automated - and educated.  And they write in millions of "keystrokes" per minute.

Robo-writing industry leader Narrative Science (click here) says that its software "turns facts into stories and insights."

The program does exactly what it touts.  It takes facts and converts them into stories.  It markets itself in three areas: (1) media and publishing, (2) business communications, and (3) data companies.  The computer will take data, such as a box score, stock market report, or financial sheets, and convert them into readable stories.

It isnt' the Pulitzer Prize.  Not Yet.  But it does work for stories on the local high school sports teams or for writing business memos gleaned from sales reports. With the financial pressures on newspapers, one can envision a sports or business departments of a local newspaper -- departments that once employed half a dozen reporters -- being reduced to a single editor who spends most of his time editing computer output.

Narrative Science isn't alone.  Much of the writing and editing of Wikipedia is now done by ClueBot NG.  For a article detailing how ClueBot NG works, check out "An Online Encyclopedia That Writes Itself" in Technology Review (click here), or "Meet the 'Bots' That Edit Wikipedia" on the BBC News Magazine (click here).

Klint Finley has an excellent online article for Tech Crunch titled "Coders Can't Put Writers Out of Work Yet, But We Better Watch Our Back. (click here).  It's goes into detail about sophisticated programs that portend real inroads into writer employment by sophisticated computer programs.   The quality of the work may suffer, but economics may be the overriding factor. 

Can a computer some day write the latest thought-provoking column by NY Times columnist Thomas Friedman or literary fiction such as Water for Elephants or current bestseller Gone Girl?  I don't think so.

But  I could see a computer whipping out (pun intended)  Shades of Blue, Shades of Purple, Shades of Chartreuse, etc.  And I actually expect that within two or three years, we may see formula books being written by computers. 

But while computers may be able to replace the writer in some circumstances, they can NEVER REPLACE WRITING ! ! !

At the recent Midwest Writers Conference, Shamus-award winning author Terence Faherty (http://www.terencefaherty.com) passed on a sage piece of advice.  "Don't be a writer if you can be anything else."  At first this takes you back a step.  Then you realize the truth in it.

Writers write because they have to,  because they live with words inside them that they have to get out.  And no computer program, however sophisticated, will replace that.

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. 

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.