Sorry, Coop, You Can't Have Our IP

The Harvard Cooperative Society — also known as our campus bookseller (also a Barnes & Noble) — has been claiming that it has an “intellectual property” right in the ISBN numbers and/or prices of the textbooks that we as faculty assign to our students. We’ve got an op-ed in The Crimson this morning disputing their IP claims. It’s fairly certain that The Coop can kick students out of their store for many reasons, but the claim of IP in the facts of what books I and others are assigning to our students is off the mark. I for one certainly never conveyed such a right to the Coop.

And the stated concern that “if we don’t have a monopoly on selling textbooks to Harvard students, we won’t sell them at all” seems unlikely to be right. I suspect someone, if not the Coop, (which, to be clear, has a long and storied tradition — starting with few students getting together to sell books in the late 19th century — and from whom I have bought many books as an undergrad, law student, and otherwise), will be willing to sell books to Harvard students.

Community Organizing Around Takedowns

Jim Moore has reposted, on Google Video (heh), the “offending” work that prompted the nastygram from Viacom today. It’s hard to imagine what might have prompted the take-down. As JZ asks in the comments from an earlier post, what can we surmise about the tactic in getting to 100,000 take-downs? Was some bot scanning for keywords in titles, say “Redbones”?

Perhaps we can get to the bottom of it by aggregating other misfires from in this massive take-down push. At TopTenSources (please see my disclosures), here’s a page where you can add a link to your video or enter comment about the take-downs, as well as an e-mail address — [email protected] — to which you can send word of your taken-down video. Is Jim’s video the only one that shouldn’t have been flagged? Or are there others out there — possibly with no offending content, or possibly where a fair use defense might apply?

How Many Jim Moores Are Out There? Viacom's Cease and Desist Letters … for Home Videos?

Jim Moore has received a cease and desist letter from Viacom for a home video that he shot. (I love Jim, but the video’s pretty bad. Highly unlikely to be affecting any market that Viacom cares about, among other things.) The DMCA’s Section 512 has a provision that allows for counter-notification for people, like Jim, who believe that their works that do not infringe copyright have been taken down without cause. Of course, there might be *something* in a home video that is infringing someone else’s rights; perhaps; but no court is making this decision. It’s one company (Viacom) writing to another company (Google/YouTube) and poof — the video is gone, off the web. No judge, no jury. I have to say that I don’t blame YouTube for complying quickly with the demand, as the law makes them more or less blameless if they do so, even if that policy hurts their users.

The operative question related to this 100,000 c&d day: How many Jim Moores are out there?

And take a look at the page where the video used to be. The take-down notice results in language that reads: “This video has been removed at the request of copyright owner Viacom International Inc. because its content was used without permission.” Really? Watch the video for yourself. It sure looks like that assertion is untrue.

Viacom should recall what happened to Diebold when they over-reached on copyright. The DMCA can also provide for damages back to the legitimate copyright holder when someone’s cease-and-desist letter falsely accuses them. The relevant language reads:

“(f) Misrepresentations.— Any person who knowingly materially misrepresents under this section—

(1) that material or activity is infringing, or
(2) that material or activity was removed or disabled by mistake or misidentification,
shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.”

Stipulate that Jim Moore holds all rights in his video, and Viacom none. And stipulate further that Jim Moore is far from alone. One presumes that Viacom’s argument is that they did not issue these misrepresentative notices “knowingly.” I wonder how many home videos have to have been caught up — and taken down — in this sweep before one could say that it was “knowing” on the part of Viacom? Combine that with the mash-ups that may include some of Viacom’s material, but where a fair use analysis will vindicate the alleged infringer. Could a human being have looked at each of these 100,000 videos? Might a court say: “You ought to have known that if you crank these notices out automatically and not checking each one, you must know there’s some non-infringing material in there”?

Cease and Desist from YouTube to TechCrunch

Mike Arrington is reporting that he’s received a cease and desist letter from YouTube. Mike writes: “Buried in my email this evening I found a cease and desist letter from an attorney at Wilson Sonsini Goodrich & Rosati, representing their client YouTube. We’ve been accused of a number of things: violating YouTube’s Terms of Use, of “tortious interference of a business relationship, and in fact, many business relationships,” of committing an “unfair business practice,” and “false advertising.” The attorney goes on to demand that we cease and desist in from engaging in these various actions or face legal remedies.”

The key issue here seems to be the ability to use a Terms of Use to override other rights that the public might have. Lessig has more. At least this one should be a fair fight, if Mike decides to take it on; in addition to his clout and being on the side of the angels, Mike used to work for the firm that sent him the C&D.

Totally brazen typosquatting in Mass Governor's Race

The Independent candidate for governor of Massachusetts, Christy Mihos, is typosquatting at http://www.kerryhealy.com. His Republican opponent, Kerry Healey (note the extra “e”), must not be too amused. The people of Massachusetts aren’t in too much danger of actually electing Mr. Mihos in November — the race is plainly between Healey and the Democratic nominee, Deval Patrick (I support Mr. Patrick) — but his typosquatting antics certainly don’t help the case for his candidacy. Who wants a governor who cheats — or whose staff cheats — in such an obvious, silly way?

China's Karaoke police, and dogs dancing jazz

An extraordinary piece in the LAT, (via John Bracken), on the crackdown on free expression in China. The story’s lead, written by Mark Magnier, goes like this:

“BEIJING — With their control over newspapers, television, magazines and the Internet secure, censors in China are now turning their attention to the dim recesses of the nation’s karaoke parlors.

“The state-run Beijing News reported Wednesday that the Ministry of Culture has issued new rules to prevent ‘unhealthy’ songs from ringing forth in the singalong bars, which are so popular here that people joke that overseas, Chinese join church choirs only because they miss karaoke so much.”

It reminds me of Lawrence Lessig’s famous example of Sony and the Aibo. Sony did not want you to teach your Aibo to dance jazz, which a site called Aibopet told you how to do.
This story also joins the topics of our work on the OpenNet Initiative (looking at censorship and surveillance on the Net) with the Digital Media Exchange (the idea of an alternative compensation system for digital expression).

David Hornik on the Web 2.0 TM Controversy

David Hornik, famous as the VC at August Capital who made some of the first true web 2.0 investments, is actually a lawyer. And a good one. Not to mention a Harvard Law School grad. (Who now teaches at a business school.) He has the go-to post on the web 2.0 trademark controversy, in which a conference promoter (CMP) sent a cease-and-desist letter to an Irish non-profit with a plan to hold a conference using the term “web 2.0” in a manner that CMP believed violated their rights. Equally important, to be sure, is Tim O’Reilly’s summation/apology post (CMP works with O’Reilly on the huge conference with the relevant name.) The NYT piece, by Sara Ivry, is also good.

My view: this issue is another example of IP-law-gone-silly. And I agree with David when he writes:

“… I believe Intellectual Property needs to inform business decisions, not dictate them. Entrepreneurs should never take on risks that they don’t understand and appreciate fully. But that is not to say that entrepreneurs should never take on risk — they should just choose to take on that risk after fully exploring its scope. In some cases that risk is Intellectual Property risk (will my ability to enforce my trademark be diminished by my failure to enforce it in this instance?). In other cases that risk is pure business risk (will my long-time supporters turn on me if I enforce my trademark in this instance?). Or perhaps a mixture of the two.

“I am quite certain that had CMP fully appreciated the potential business risk of sending a Cease and Desist letter to [email protected], they would not have done so. More importantly, I am certain that if Tim O’Reilly had had the opportunity to consider and comment upon the risks of such aggressive trademark enforcement by CMP, he would have urged them to think better of it. But, alas, whoever ultimately made the decision to crack down on the use of the ‘Web 2.0’ service mark (I suspect it was a lawyer, not a business person) did not fully consider the ramifications of doing so and the result of that action have reverberated throughout the blogsphere.”

The big distinction here is between having IP rights (separate conversation: debating the merits of whether the scope and duration of the rights are too big) and seeking to enforce them — in every instance — against others who may possibly be infringing them. That’s where business people should call the shots, not the lawyers. The point is not that you shouldn’t have IP rights, nor that you shouldn’t ever enforce them. It’s that there’s an art to know when to press your case and when to use other tools at your disposal to get your way, whatever that might be — or even to make the decision to look the other way, or to give away your rights to embrace the community’s embrace of something to which you have the rights.

As an aside: likewise, what do you think that the PR firm in the Lance Dutson case in Maine would give for a do-over? Or Diebold? Alas, no mulligans in IP law (and related) enforcement matters.