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.

Copyright Keeps May Children From Hearing “I Have a Dream Speech”

Martin Luther King, Jr.’s “I Have a Dream Speech” is easily one of the most iconic — if not the iconic — American speech of the 20th century. And thanks to the King Foundation’s ironclad grip on King’s work, many schools cannot allow their students to listen to or watch the speech. Not a few of them use illegal methods to pass on the complete text of the speech to their student.

According to The Washington Post,

All of King’s speeches and papers are owned by his family, which has gone to court several times since the 1990s to protect its copyright; King obtained rights to his most famous speech a month after he gave it. Now, those who want to hear or use the speech in its entirety must buy a copy sanctioned by the King family, which receives the proceeds.

. . .

When King was killed, his family was left without much money. The family earns income from licensing his image and charging fees for the use of his speeches. Some of his papers are free for researchers to look through. The King family did not respond to queries for this article.

Joseph Beck, an attorney for the King family and an expert in intellectual property rights, said, “The King family has always supported providing access to the speech and to the video for educational purchases and encourages interested persons to contact the King Center in Atlanta.” According to the family’s Web site, videotapes and audiotapes of the speech can be purchased for $10, but one copy often is not enough for an entire school, and many schools don’t know what materials are available.

Many schools use the text — often taken in violation of the copyright from the Internet. The King family, however, wants teachers to use the speech and has not pursued legal action against educators, Carson said.

$10/copy sounds cheap until you need fifty copies, and you’re a school on an extraordinarily tight budget. Moreover, Beck’s assertion that the King family isn’t going to pursue certain types of copyright violations isn’t worth the electrons its printed on at the Post’s website. No legal adviser worth anything is going to suggest to a school that they simply go ahead and break the law because the King family probably won’t sue them.

Similar problems have pretty much made the excellent documentary about the civil rights movement, Eyes on the Prize, from use in the classroom in recent years. When it was first made, the producers of the documentary bought time-limited permission to reproduce archival footage. When they went to re-release the documentary, the archival footage owners upped their licensing costs to ridiculous amounts, making it prohibitively expensive to re-release the documentary.

Source:

King’s Fiery Speech Rarely Heard. Valerie Strauss, Washington Post, January 15, 2006.

The Future of Copyright Laws

Today ZDNET writes about Bruce Lehman forming a group to defend the Digital Millenium Copyright Act. Lehman ran the U.S. Patent and Trademark Office for a number of years and was one of the folks who helped write the copyright laws. Now he says the anti-copyright forces are winning the battle over the DMCA.

Unfortunately Lehman and other pro-copyright folks such as Jack Valenti don’t seem to understand why the DMCA is despised so much. The DMCA is an extreme piece of legislation that gives far too much power to copyright holders, who have demonstrated that they are more than willing to use this power in ways that many people find questionable.

Most people I know, for example, find nothing unethical about taking a compact discs they own and copying multiple tracks to a cassette to take the gym. It is the position of most of the major content providers, however, that consumers should essentially pay a fee for every single device they plan to listen to music on. The idea that in the future people will be forced to simply license music is one that many find absurd.

ZDNET mentions another absurdity in the DMCA’s ban on even attempting to circumvent copy protection. The Supreme Court has already made it clear that consumers have a right to make backup copies of software, music, etc., and the DMCA’s pro-copy protection stance strikes me and others as a blatant attempt to make an end run around the rights of consumers. It seems to have the same legitimacy as a law that would say, “Well the Supreme Court says we can’t enjoin speech prior to publication and we have no problem with that, but from now on you’ll have to have a license to buy paper and sign an agreement not to print things we don’t like on said paper.”

The main reason that copyright is coming under such withering criticism is that Lehman and others intentionally hitched the future of copyrights to the DMCA, perhaps thinking their Draconian anti-copying provisions would gain some legitimacy by being portrayed as simply an extension of long standing copyright law. Instead, exactly the opposite happened. People rejected the DMCA provisions and then said, “Wait a minute, if this is what it takes to enforce copyrights, maybe there’s something fundamentally wrong with the concept of intellectual property in the first place.”

MathWorld’s Copyright Problems.

The O’Reilly Network recently featured an article by John McDonald, Treasure Trove Looted, which shed some light on situation surrounding Eric Weisstein’s MathWorld. I had heard the problems involved copyright issues, but assumed they involved the sort of copyright issues that are more common with the Internet where copyrighted material gets posted on a web site. In this case, though, the problem is far more complex and contains a great lesson for authors.

It seems that Weisstein’s site, which contained a lot of valuable information about math-related topics, became so successful that he successfully pitched a book proposal to CRC Press and much of the content Weisstein wrote for the web site became a book, The CRC Concise Encyclopedia of Mathematics.

Here’s where it starts to get weird. After publishing the book, CRC Press informed Weisstein that its contract with him clearly granted CRC Press ownership of any derivative works, and the web site was just such a derivative work. After some back and forth, the site is completely shut down as of this writing. In effect, CRC Press maintains they bought the copyright not to just the book, but to the web site as well, and they don’t want the web site competing with the book.

First, the logic here is completely backward. The web site will only promote sales of the book. Since there is still no good way to electronically access reference materials consistently, its unlikely the existence of the web pages would have cut into sales the book (more likely fans of the site would have made up a substantial number of the book’s buyers).

Second, Weisstein apparently made a huge mistake by not making sure the web site wasn’t considered a derivative work before he signed his publishing contract. I mean I don’t know about you, but if Random House calls and tells me they want me to write a book about overpopulation based on my web site, the first thing I’d want is my lawyer and their lawyers coming to an agreement that the book contract wouldn’t affect the copyright of the web site.

In fact a couple years ago when I was contacted by a publisher who bought the rights to republish an essay I’d written for one of my web sites, I made darn sure that they were not purchasing the copyright as well and my future use of the essay would not be restricted in any way.

As I’ve mentioned before, I’ve stopped working for companies that wanted me to sign away more of the rights for my writing than I was willing to do. Some people I know have looked at me a bit skeptically when I’ve mentioned this, considering it an overreaction on my part. On the other hand it’s cases like Weisstein’s that show just how important it is to understand the legal ramifications of what you’re doing before you sign any sort of publishing contract.