Stop Embedding My YouTube Videos!

This Weblog Tools Collection post by Mark Ghosh from earlier this year had me shaking my head.

The short version: YouTube users upload videos and don’t alter privacy settings, so YouTube displays an embed code. Ghosh and his cohorts embed them on one of their sites. Angry YouTube users then email and complain that Ghosh, et al are infringing on their content! Ghosh wondered,

To take this one step further, if you display embed code on your blog or website (think ShareThis), are you implicitly allowing your content (whatever the embed allows direct publish access to) to be republished elsewhere? If you do not allow sharing of your content without permission, are you just displaying certain types of social media tools that prevent wholesale copying of content? I know I personally never factored this into my thought process. Anyone else run into these issues? I wonder what the traditional media with electronic outlets are doing?

Interesting. Personally I would think the person clueless enough not to see the embed code on their own damn video is probably not functionally intelligent enough to retain a lawyer for a lawsuit, so I would just ignore these. But that’s just me.

Fortunately enough, the EFF addressed a related issue back in 2007 in the context of copyright infringement — what if I embed a YouTube video that is ultimately found to be infringing,

Taking a look at the actual code makes one thing obvious: no copy of the YouTube video is being stored on your server (only the HTML code for the embed). The video stays on, and is streamed from, YouTube’s servers.

That makes the embedded YouTube video essentially indistinguishable from the in-line image links that are used all over the Web, including in Google’s Image Search. In the recent Perfect 10 v. Amazon ruling, the Ninth Circuit made it very clear that where in-line links are concerned, there is absolutely no direct copyright infringement liability. So, for purposes of direct infringement, the answer to one question will generally resolve the issue: where is the copy hosted?

On the other hand, I can imagine a number of cases where I would want not want my YouTube video embedded. One can imagine, for example, a porn splog that embedded a popular video simply to throw up ads around it. Maybe those already exist and I’m behind the curve, but regardless those sort of sites would seem to violate other parts of YouTube’s TOS.

The Copyright Status of Robert E. Howard’s Works

If you want to understand just how complicated it is to determine whether or not a work is still copyrighted in the United States, check out Paul Herman’s analysis of the copyright status of works by Robert E. Howard who died in 1936 but had many works published posthumously (in some cases, several decades after his death).

The United States Copyright Office

All Copyright Office records prior to 1978 are currently available only in hardcopy at the Copyright Office Search Room in Washington DC. No online access is avialable. Over the course of several visits, a review has been made of the US Copyright Office records with regard to REH works first published prior to 1964, looking for original registrations and renewal registrations, to see if a valid copyright could still exist. A review of notices within the actual original publications has not been completed yet, and as stated earlier, if notice is flawed, the work could still be injected into the PD, regardless of having proper registration and renewal.

The result of this review was that a large number of REH works subject to the rules of the 1909 Act either did not have original registrations, or no renewal registrations were filed where required. These works are therefore by law in the PD. A listing of these PD works is provided below.

Renewal Problems

An additional legal matter, only select classes of people and entities can file for the renewals. The courts have almost always said that if the renewal is made by an incorrect entity, the renewal is invalid, and the work PD. About the only exception is when the only error is leaving a joint author off the renewal, or if it was impossible for a person to know they were a rightful renewer (such as with an illegitimate child with no knowledge of the parent). Failure to file when the time was right is no excuse, nor is ignorance of the law.

A number of REH works had renewals filed by an incorrect person or entity. Because of this, more works are also PD. Of special interest, the renewals filed with regard to Weird Tales are of interest, and it may be that while at first blush they correct party did not file the renewals, it may be that it can be shown that they in fact were. The current owners are working hard on this issue. Accordingly, I have removed those works from this list, until some sort of resolution is reached. Regardless, a fair portion of the WT works are still PD, for failure to file any renewals at all. Further, due to no registrations and/or no renewals, a great amount of the poetry that REH sold or otherwise had published during his lifetime is PD.

Got that? In some cases whether or not a work is in the public domain in the United States comes down to technicalities in how the registration renewal was filed (or not filed). The cost of tracking that sort of information down is one of the main reasons there are so many orphan works — works that no one is actively publishing or exploiting, but that which remain out of print because of the difficulties in establishing whether or not they are truly in the public domain.

On the other hand, the European Union has created a special law that allows works in the public domain to gain additional copyright periods,

In March, 2007, Paradox published a very small print run of a volume titled THE LAST OF THE TRUNK OCH BREV I URVAL. This was published in Sweden, with a print run of eleven copies. As with the publication of a tiny print run of a couple volumes of material by the previous owners in 2002, this was an attempt to take advantage of a special copyright law. In this case, in the European Union, there is a rule regarding works that have gone PD without ever being published. That rule states that if the owner of such a work gets that work into print first in the European Union, they will be granted a 25-year “publication right”, which for most purposes is the same as a copyright. This new book by Paradox attempts to include all the previous unpublished works of REH, prose, poetry and letters, and appears to meet all requirements. Hence, most or all of the works listed below as PD in the US that were unpublished in the US as of 1/1/2006 are likely back under copyright in most of Europe, for the next 25 years.

But at least they’ll enter the public domain again in 2031. As Herman notes, some of Howard’s work — remember, written in or before 1936 — will not enter the public domain in the United States until 2072! Assuming, of course, there are no further copyright extensions.

James Boyle’s New Book ‘The Public Domain’

Yale University Press has just published James Boyle’s new book about the damage being wreaked by intellectual property laws, The Public Domain: Enclosing the Commons of the Mind. Boyle also has a website for the book at ThePublicDomain.org, where the book can be downloaded for free as a PDF (the book is available under a Creative Commons Attribution-Noncommerical-Sharealike license).

According to the web site,

Our music, our culture, our science, and our economic welfare all depend on a delicate balance between those ideas that are controlled and those that are free, between intellectual property and the public domain. In The Public Domain: Enclosing the Commons of the Mind James Boyle introduces readers to the idea of the public domain and describes how it is being tragically eroded by our current copyright, patent, and trademark laws. In a series of fascinating case studies, Boyle explains why gene sequences, basic business ideas and pairs of musical notes are now owned, why jazz might be illegal if it were invented today, why most of 20th century culture is legally unavailable to us, and why today’s policies would probably have smothered the World Wide Web at its inception.

. . .

With a clear analysis of issues ranging from Thomas Jefferson’s philosophy of innovation to musical sampling, from Internet file sharing and genetic engineering to patented peanut butter sandwiches, this articulate and charming book brings a positive new perspective to important cultural and legal debates, including what Boyle calls the “range wars of the information age”: today’s heated battles over intellectual property. Intellectual property rights have been viewed as geeky, technical and inaccessible. Boyle shows that, as a culture, we can no longer afford the luxury of this kind of willed ignorance.   The “enclosure of the commons of the mind” matters and it matters to all of us. “Boyle has been the godfather of the Free Culture Movement since his extraordinary book, Shamans, Software, and Spleens set the framework for the field a decade ago,” says Lawrence Lessig,  “In this beautifully written and subtly argued book, Boyle has succeeded in resetting that framework, and beginning the work in the next stage of this field. The Public Domain is absolutely crucial to understanding where the debate has been, and where it will go. And Boyle’s work continues to be at the center of that debate.”

Uri Geller Should Have Seen This Coming

I definitely have regrets in my life and things I’d like to do over, and at the top of the list is the time when I was about 12 years old and checked out and read the entirety of Andrija Phuarich’s ridiculous biography of Uri Geller. I’d really like that week back. What’s always amazed me about Geller is not that he is a fraud but that was such a hack of a fraud — and yet, got all that media attention anyway.

Anyway, Geller’s fraud is trivially easy to expose and you can find videos on YouTube pointing out how he does all his magic tricks. That apparently pissed Geller off, so he sent a DMCA notice to take down one compilation of clips that had been posted on YouTube, asserting that the compilation contained 8 seconds of a clip from a Geller-owned video.

EFF filed suit against Geller’s in 2007, and later a Geller-owned company named Explorologist also got involved. On August 4, however, the EFF announced that not only had they settled the lawsuit with Geller and Explorologist, but as part of the settlement Explorologist agreed to license the disputed footage under a non-commercial Creative Commons license so its free to use to criticize Geller’s nonsensical claims.

Or, in other words, Geller and his company caved after the ridiculousness of their position became clear. For once, I suspect Geller really did get bent out of shape.

Writing for Maximum PC Means Never Having to Do Any Research

So I’m flipping through the September 2008 issue of Maximum PC and come across an article by Quinn Norton called “IP Rights Fairy Tale.” The title is intriguing, but as I read on it becomes apparent that Norton is clueless about even the most basic concepts she’s writing about. From top to bottom the article gets pretty much everything wrong.

Then, I read the mini-bio at the end of the article that says,

Quinn Norton writes about copyright law for Wired News and other publicatons. Her work has ranged from legal journalism to the inner life of pirate organizations.

Wow. Apparently you can go a long way with very little knowledge.

Anyway, the article is about Blueport Technologies. In Norton’s version, Blueport sold a piece of software to the Air Force. The Air Force then basically stole the software. When it was sued for copyright violations, however, the Air Force invoked sovereign immunity and got off scott free. It’s a lot more complicated than that, but for now just accept that at face value (as I did the first time I read through Norton’s article). Here’s how Norton describes sovereign immunity (emphasis added),

. . . But the Air Force had an ace up its sleeve — the “Uh uh, no you don’t” defense. It asked the judge to throw out the case based on sovereign immunity. Sovereign immunity is a legal principle that states that no one can sue the government unless the government gives them permission. In the 18th century, when the country was just a wee whippersnapper, we passed the 11th amendment to create sovereign immunity.

Someone who can write something as idiotic as that last sentence, shouldn’t be allowed to get anywhere near “legal journalism.”

First, sovereign immunity is a very old legal principle in English law that predates the formation of the United States. Moreover, the United States did not need to pass an amendment to assert that the federal government was immune from lawsuits. That idea was essentially imported into U.S. law thanks to our adoption of the English legal system.

Second, the 11th amendment had nothing to do with sovereign immunity involving lawsuits against the federal government (and in the Bridgeport case, as Norton herself notes, it was the federal government being sued). Rather the 11th amendment was concerned with whether individual states have sovereign immunity from lawsuits brought by citizens of other states and other states themselves.

In 1793, the Supreme Court ruled in Chisolm v. Georgia that federal courts had jurisdiction over lawsuits filed against states. The 11th amendment nullified that decision, saying that

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

Norton’s bizarre belief that the 11th amendment created sovereign immunity in the United States made me wonder if her description of the Blueport case was accurate.  Not surprisingly, she leaves out a few important details.

Norton writes,

Not very long ago, in a land not at all far away, there was a little company called Blueport. It held the copyright on a piece of software that the US Air Force liked using for logistics. Blueport protected its software with a time bomb — a bit of code that made the software self-destruct when the license expired. That date was approaching, and Blueport wanted to negotiate a new license with the USAF –a nd you know, get paid.

Instead, it got a bit of the ol’ shock and awe. The Air Force not only didn’t pay up, it paid big contractor SAIC ($2.5 million in lobbying in 2007) to reverse engineer Blueport’s program and disable the time bomb. The Air Force also paid SAIC to rewrite the program, and by rewrite I mean simply cut and paste any of the original code that seemed useful.

. . .

It [sovereign immunity] doesn’t have anything to do with who’s right, just who’s allowed to sue. The government can waive immunity, but nothing in the DMCA or copyright law says, “Yeah, OK, we’ll play by these rules too.”

Again, anyone who can write the nonsense in the last sentence shouldn’t be writing about copyright law. She is correct about the DMCA — the federal government is exempt from that on sovereign immunity grounds. Courts have held that there is no implicit exemption to sovereign immunity, so anytime a new law like the DMCA is passed, Congress has to pass an explicit sovereign immunity waiver if it wants there to be any exception.

But the federal government has waived almost all of its sovereign immunity in copyright cases in 28 U.S.C. § 1498(b) which was added in 1960. The law does include a few exceptions to the waiver of sovereign immunity related to copyrights owned by federal employees (emphasis added below on one of those exceptions),

(b) Hereafter, whenever the copyright in any work protected under the copyright laws of the United States shall be infringed by the United States, by a corporation owned or controlled by the United States, or by a contractor, subcontractor, or any person, firm, or corporation acting for the Government and with the authorization or consent of the Government, the exclusive action which may be brought for such infringement shall be an action by the copyright owner against the United States in the Court of Federal Claims for the recovery of his reasonable and entire compensation as damages for such infringement, including the minimum statutory damages as set forth in section 504 (c) of title 17, United States Code: Provided, That a Government employee shall have a right of action against the Government under this subsection except where he was in a position to order, influence, or induce use of the copyrighted work by the Government: Provided, however, That this subsection shall not confer a right of action on any copyright owner or any assignee of such owner with respect to any copyrighted work prepared by a person while in the employment or service of the United States, where the copyrighted work was prepared as a part of the official functions of the employee, or in the preparation of which Government time, material, or facilities were used: And provided further, That before such action against the United States has been instituted the appropriate corporation owned or controlled by the United States or the head of the appropriate department or agency of the Government, as the case may be, is authorized to enter into an agreement with the copyright owner in full settlement and compromise for the damages accruing to him by reason of such infringement and to settle the claim administratively out of available appropriations.

So if the government has waived its sovereign immunity in most copyright cases, why was sovereign immunity invoked in the case involving Blueport Technologies?

The program at issue was written by a Sergeant Davenport employed by the Air Force. Davenport wrote the program, tested it on Air Force time, and then freely distributed it within the Air Force.  The Air Force was apparently impressed, and arranged for Davenport to provide training for using the program at different Air Force facilities. Almost 20 months after writing the program, it dawned on Davenport that maybe he could make some money from it, so he formed Blueport Technologies with a relative and registered a copyright for the program.

The Air Force was not amused at efforts by Davenport to attempt to license back what the Air Force believed was software it already owned, and so hired SAIC to reverse engineer the software. At that point, Blueport Technologies sued.

So sovereign immunity was invoked because the courts agreed with the government that the software in question met the criteria of what might be called in other context’s a work for hire. That, in other words, it was clearly a “copyrighted work prepared by a person while in the employment or service of the United States, where the copyrighted work was prepared as a part of the official functions of the employee, or in the preparation of which Government time, material, or facilities were used” and as such fit one of the exemptions of the waiver of sovereign immunity in 28 U.S.C. § 1498(b).

So, in other words, the government tends to have a lot more leeway in appropriating the work-related intellectual property that its employees produce. That may or may not be a good idea, but it is a long way from Norton’s patently false claim that,

The government cannot ever be sued for violating its own DMCA or infringing on copyright.

Well, there is certainly an IP “fairy tale” in there. Perhaps for future analysis of copyright issues, Maximum PC might want to ditch Tinker Bell and find a real expert.

Smallville Hit By Copyright Kryptonite

Brian Cronin does an excellent job of explaining the very odd legal situation that DC Comics has found itself in over the copyright to the Superboy character.

DC owns the copyrights and trademarks to Superman, Clark Kent and the other characters created and derived from Jerry Siegel and Joel Schuster’s famous creation.

But a funny thing happened to Superboy — in 1976 the U.S. Congress extended the term of copyrights from 28 years to 47 years. It also made provisions so that copyright transfers originally made for 28 years could be cancelled after that period and the additional 19 years could revert to the original owner.

Suppose, for example, that you created a character in 1948 and transferred the copyright for what then would have been 28 years — i.e., the copyright would have expired in 1976. Under the new provision, you could file to regain the copyright in 1976 and decide who to sell the remaining 19 years of copyright protection to.

In 1947, a judge ruled that Jerry Siegel was the sole owner of Superboy, who had first appeared in comics in 1943. In 1948, Siegel and Shuster signed away all their Superman-related rights, including Superboy, to DC for $100,000.

In 2002, however, citing the provisions of the 1976 copyright provision, Siegel’s estate informed Time Warner, which owns DC, that it was reclaiming its right to Superboy.

Unfortunately for DC, it now has a hit show called Smallville which focuses on a young Superman. What a trial court will now have to decide is whether or not Smallville is a series about Superboy, as the Siegel estate contends, or a young Clark Kent, as DC and Time Warner contend.

And the situation is even more complex, since DC and Time Warner are the sole owners to the Superboy trademark, meaning no one could market Superboy-related comics or other media without DC’s approval.

What a weird mess, and frankly one that DC deserves given the shabby way it treated Siegel and Shuster for creating characters that made the company literally hundreds of millions of dollars.

Source:

Judge Says Siegels Own Superboy. Will It Affect “Smallville”. Brian Cronin, ComicBookResources.Com, April 6, 2006.