Blogcritics Author: Rich Frankel

Announcement: Short-content feeds

Phillip Winn — Sun, 26 Aug 2007 12:00:00 EDT

Sunday, August 26, 2007, marks the switch of all Blogcritics.org article feeds from full-content to short-content. This is the result of several converging factors, and is unfortunately a permanent decision (as permanent as any decision can be on the web, that is). We are aware of all of the reasons that this is a Bad Idea, and we are aware that some of you will be quite upset about having to click on something to read the free content, and we're sorry. Unfortunately, despite great effort, full-content feeds are not currently economically viable. Two other factors are involved: full-content feeds have resulted in an unprecedented level of content theft, with BC content appearing on many websites, usually spam sites, without attribution or permission. This duplicate content causes a cascading set of problems, not the least of which is that search engines generally aren't favorable to duplicate content, and don't always guess correctly. Finally, our RSS advertising partner is strongly in favor of short-content feeds. We hope that you'll continue to subscribe to BC via RSS, and when an article grabs your eye, it's only a click away, still free on the BC website. Thank you for your understanding.

CEA, EFF Announces "Digital Freedom Campaign"

Rich Frankel — Wed, 25 Oct 2006 12:28:31 EDT

The Consumer Electronics Association (CEA), in connection with the Electronic Frontier Foundation (EFF) and several other groups, today announced the launch of the Digital Freedom Campaign. The stated goal is to kick start a grass roots effort to restore balance to copyright law, which they believe has swung too far in favor of protecting the interests of publishing agencies at the expense of consumers, creators, and manufacturers. The initial funding will come from the CEA, with the hopes of encouraging grass roots support as the advocacy effort gains momentum in its aggressive campaign.Derek Slater of the EFF stated at the press conference that the entertainment industry has treated its fans like criminals by proposing “draconian restrictions” on their use of media, and that the efforts have done little to curtail piracy but have had the effect of trampling fair use. Slater further advocated that part of this campaign would be to push Congress to restore the traditional values of copyright law.As an initial effort by the campaign, CEA’s CEO and spokesperson Gary Shapiro announced the launch of a new website, which will serve as an educational tool and critical piece of Digital Freedom’s grass roots efforts. As a matter of introduction, three vignettes, available on the website, were played for the members of the press. It showed an entrepreneur who had been unable to develop his product due to the work of the entertainment industry, a filmmaker who had been sued for including a five-second clip of the nightly news in his film project, and a young woman how had been stifled for being unable to transfer her media between devices in her own home.The video was a bit on the theatrical side, but it certainly served the admitted purpose of advocacy well.Part of the goal of the campaign is to expand what has been traditionally a battle between manufacturers and innovators, and the entertainment industry. As pointed out by Slater, this battle has been going on since the landmark decision in Universal Studios Inc. et al. v. Sony, commonly known as the “Betamax” case. In that case, the movie industry was railing against Sony’s innovative product, which allowed television shows to be recorded and watched later. The Court held that this was acceptable, and the result has been an industry of personal media portability from VCRs through Tivo. The Digital Freedom Campaign hopes to expand this battle to include three types of individuals: innovators, creators, and consumers. All three of these groups are negatively affected by the current copyright climate, which restricts every aspect of media and seeks to prevent devices that allow for open use of media from even being made.Essentially, the Campaign makes clear that what is needed is a new vision for copyright, where content no longer belongs just to large companies, or even to small filmmakers, but to everyone. As was pointed out, we live in a nation where the penalty for downloading a song in your home is greater than for stealing the entire CD at retail. Something has to change - let’s hope that this new initiative adds the muscle to make it happen. For more information, check out the newly launched website.

An attorney, musician, and gaming fanatic, Rich Frankel practices law in the greater Philadelphia area to support his music habit.

Copyright to Public Domain: A Battle Cry

Rich Frankel — Wed, 18 Oct 2006 14:58:09 EDT

I am declaring war on copyright. I declare war not as an attorney, or as a musician and writer, but as a member of society.The corporate interests, which hold the majority of copyrights in our country, have distorted copyright beyond all constitutional recognition, and replaced it over the years with something that does little to “promote the progress of science and useful arts.” When the public domain is filled with diverse works, our society as a whole benefits. When there is an absence of input, we suffer as a culture and risk irrelevance. As a result of the modern climate regarding copyright, this is exactly what is happening to our culture. The very concept of copyright has become distorted over the course of modern history by a narrow interest with little desire to contribute to the cultural pool. This is contrary to the plain meaning of the Constitution's copyright clause.Because the reality of modern copyright is so far beyond the scope of the Constitutional framers' original intent, I believe that the only way to recapture the creative arts for the benefit of society is for artists and writers to voluntarily give up their exclusive rights long enough to put the advocates of ever expanding property rights in intellectual works in an uncompetitive position. Tall order. Copyright is not a property right. It just isn’t. By some interpretations of “securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries…” an argument could be made that this is, in fact, a time-limited property right, but copyright is a bundle of different rights, and as such, is something altogether different. First, a brief history lesson:Just after the United States Constitution was ratified, the First Congress got to work on enacting its missives. In 1790, Congress passed the cleverly titled: “Copyright Act of 1790, An Act for the Encouragement of Learning, by Securing the Copies of Maps, Charts, and Books to the Authors and Proprietors of Such Copies.” This act gave authors exclusive rights to their work (mostly regarding printing and publishing) for fourteen years, with the option to renew that term for another fourteen years. The point of this limited monopoly was to encourage authors and scientists to do what they did, by offering the promise of an exclusive financial carrot if they came up with something worth buying. In 1831, Congress extended the term to 28 years, with a fourteen-year extension. The next big expansion of authors' rights came in 1909, when Congress extended the categories of protected works to all works of authorship, (except choreography, but that’s a different article), and made the term 28 years with a 28-year renewal. If you check out my source for this history, you will see an interesting quote from the congressional record addressing just what they were wrestling with at the time.In 1976, the "Copyright Act of 1976" was passed which gave us the modern concept of copyright. “Secure for a limited time,” was reinterpreted to mean the life of the author plus 50 years, or 75 years in the case of a work made for hire. In 1992, Congress again restructured copyright to make the renewal of a copyright term automatic. Works that were about to expire, suddenly received a 67-year bump (in the case of corporate owned copyrights) that automatically triggered if the work was in its first term in 1978. This means that affected works will not become part of our cultural canon until Sunday, January 1, 2045. That’s a long time to go before we have a public domain again, eh? So, what exactly are the rights contained in Copyright? Section 106 of the Copyright Act has the answer. An author has the exclusive right to: Reproduce the work, prepare derivative works, distribute copies of the work, to publicly perform the work (where applicable), or to perform the work publicly by “means of a digital audio transmission” [obviously what the constitutional framers were thinking of when they wrote this clause]. These are not property rights. They have a property connotation inasmuch as the author can divide, sell, or give them away; but property denotes ownership, and the very concept of “for a limited time” frustrates this concept. The right to information, the property right of culture, rests with the public. Congress has the power to lease that right to the original authors of these works, for a limited time, and only to promote the progress of science and the useful arts. The author never has a property right in his or her work, but instead has the exclusive right to use that property for a limited time. This makes the right more properly a contract right. The author contracts with society, agreeing to create original works, in consideration for the right to profit from them exclusively for a limited time. This concept has been changed over the years as powerful interests have reformed the concept of copyright to something that may be indistinguishable from a property right, and Congress may yet make these rights perpetual. Nonetheless, copyright is still not a property right. What’s the big deal? The big deal is that even with this rapid expansion of exclusive rights to the detriment of the public domain, there have been safeguards carved out by the law. Fair use and time shifting are two such safeguards. Now, even these are under attack. The Internet has had a huge impact on the reassertion of the public desire to have an open culture. As such, the concept of fair use has become more troublesome for copyright holders, since it is now possible to make a flawless digital copy of an original work that is indistinguishable from the original work. As has been frequently reported in connection with peer-to-peer file sharing, the major copyright owners have taken an aggressive approach to the expansion of their rights. Successful lobbying succeeded in causing the Digital Millennium Copyright Act (DMCA) to get passed, and a public “us vs. them” campaign has repainted anyone who treads on the rights of a copyright holder as a criminal. For the first time in our history, violating the sanctity of copyright has become a criminal matter. (See 17 U.S.C. § 506, 18 U.S.C. § 2319).Ladies and gentlemen, enter Reefer Madness. Two anecdotal examples of corporate copyright holders’ reaction to the difficulty in policing copyright are the High Definition Multimedia Interface (HDMI) cable, and the recent story concerning Creative Labs, succumbing to industry pressure and removing the ability to record FM radio from their MP3 players’ feature set (mind you, they’re not even doing this with future models, but actually crippling the feature in already purchased players via an update). The very idea of the public domain is under attack, and copyright has gone from being a temporary monopoly to encourage creation, to a perpetual property right with corporate interest holding exclusive control of our society’s most valuable assets. What to do... We live in an era where decentralized networks allowing users to exchange files and information are being shut down because users can utilize these networks to exchange copyrighted files. Think about it -- the idea that such a network might exist for the purpose of exchanging data in the public domain is not a relevant enough argument to sway our courts. Who can blame them, there is almost no public domain! It is doubtful that enough people would be able to get together and overwhelm the lobbying and persuasive power of interests like Disney and Time Warner. Likewise, the protection of personal use in trading of digital music is all but a lost cause, and fair use has been dealt critical blow after blow. Organizations like the Electronic Frontier Foundation (EFF), are working hard to change the way we look at these issues, and alternative licensing as pioneered by the open source movement, and the GNU general public license, have worked to refine the way author’s release content. There is nobility left in leaving a creative offering at the feet of our culture. That’s where we authors come in, and why this is a call to arms. As I see it, the only way of combating a copyright system run so far off the rails is to make the system unprofitable. This can be accomplished by flooding the market with alternatively licensed works that reinforce the public domain. Many authors think that the current copyright system protects their interests. However, not only are the major copyright holders fiercely defensive of their exclusive rights, but they step beyond their defensible positions by trying to control the means of distribution as well. This absolutely adversely affects the "little guy" trying to get his or her work out into the stream. To this end, I’ve set up an experiment for myself. I’m releasing a boatload of my songs into the stream for other artists to re-record, modify, or for listeners to enjoy and share. Like forcing myself to put a little money away with every paycheck, I keep the songs I know that I’m absolutely going to use on a project, and send the rest out into the world. I’m also going to start doing this with written works, although as a blogger, I already give most of my writing away. I may go into more depth on the technical aspects of how I'm releasing these works, but the short answer is The Internet Archive and various peer-to-peer networks. It is a controversial solution to the problem. As authors, we all want to create that one work that will put our kids through college and let us retire early. Unfortunately the balance between society and authors has grown too skewed against society. It is difficult to imagine a modern world in which fair use of works and a reasonable monopoly for authors can co-exist. All social change requires sacrifice, and no less so, the quiet struggles for the ways we define ourselves as a society; our cultural identity. Until that balance returns, I am declaring war on copyright.

An attorney, musician, and gaming fanatic, Rich Frankel practices law in the greater Philadelphia area to support his music habit.

Copyright And The Blogger Syndicate

Rich Frankel — Tue, 3 Oct 2006 12:52:12 EDT

This week, our own Blogcritics mailing list was abuzz with the issue of copyright infringement. Not the kind that only happens when kids use their grandparents’ computers to download the latest Black Eyed Peas tune; but the darker kind, namely: taking the work of an author, say, a talented Blogcritics contributor, and reprinting that work, under your own name, without proper attribution. This is a topic that is near and dear to the hearts of journalists, and as a result, one that doesn’t often get very balanced coverage. As writers, we believe that our creative work is sacred, and the United States, and International Law assures us that we retain certain rights in that work, including the rights to copy, alter, and distribute the work. In order to get published though, we often have to give up some of those rights, to let the websites, journals, and publications printing our work do their thing. One of the side effects of this process, at least in the blogosphere, is that our creative works are distributed via feeds to loads of other sites and individuals who, in turn, reprint the feeds in their own formats. To a certain extent, bloggers acknowledge this when they publish a work on a site with syndicated feeds (a la Blogcritics.org). In fact, part of why we write is to reach the largest possible audience; heavy syndication and high marks on social bookmarking sites like Digg, Reddit, and Technorati, are exactly what we want.However, one of the problems we run into when dealing with this incredibly loose flow of works, is the potential dilution of authorship. In its simplest form, it may be that the author of a work is not immediately apparent; however, most feeds link back to the original source. More troubling however, is the out-and-out lifting of one author’s work and the reprinting under a different name (by troubling, I mean rolled-up newspaper across the nose bad). This is of course, a very bad thing, and the toad who steals someone else’s work for their own, should be sent to bed without supper. As an author though, what can you really do about it? 1. Protect your blog to begin with. How you go about this depends largely on whether you’re a contributor to a larger site that handles your formatting, or you run your own blog. If you run your blog via Wordpress, your job is easier.This plugin by Angsuman Chakraborty, adds a copyright tag to your RSS and Atom feeds; just set it up, and forget about it. If you aren't a Wordpress user, the bottom line is that you want to include a direct copyright notification in your blog’s tag. Additionally, if you don’t want anyone to publish the full contents of your article without your permission, publish only the summary feed, instead of the full-text feed. Personally, I’m only a limited fan of the summary feed idea, as long as your work is properly attributed. It really depends on how important it is for you to drive traffic back to your site. That being said, your publisher might look at this differently, in which case, the summary-feed is fantastic. 2. Defend your rights. Invariably, your work will end up somewhere it doesn’t belong. Some fantastic ideas for keeping track of your work, and combating infringers came out of the Blogcritics discussion. To figure out where your work is being printed, you can put a unique quote from your work into the advanced search in Google or Yahoo, both on the subject line, and where it says: "articles that include this exact phrase" (thanks, Jet). You can also use Copyscape, which will work some search magic, based on your article's URL (thanks, Gem). Instead of re-writing what has already been said better, check out ”What to Do When Someone Steals Your Content,” by Lorelle VanFossen. It is simply a profoundly useful document. As a lawyer I’m hard-wired to cringe when someone says we’re not needed, but, for the most part, I agree. It just takes time and determination to protect your rights. There are simply too many bloggers out there and in turn, too many sites reprinting material (with varying copyright restrictions), to get lawyers involved in every case. I do think a lawyer is still a good idea if the infringement has caused you a financial loss. We lawyers tend to be good with the whole “damages” concept. There’s also a totally philosophical element to all of this.When we publish a blog that is in turn submitted to feeds, which in turn offer individuals the ability to receive real-time updates of what’s being written about the issues they care about as they’re published, we implicitly part with some of the rights that are traditionally associated with copyright. It can be argued that from the moment you allow your blog to ping any site, such as Technorati (which has a well written summary of their policy concerning works governed by the DMCA), et al., you inevitably lose the ability to control where your post ends up. From the perspective of a site administrator, they would be hard-pressed to interrupt a particular feed to analyze the copyright of each post, and to exclude those posts which do not give explicit permission for reprinting on their page (even trying to explain it is a mouthful). That being said, they should still oblige the copyright holder who notifies them of an infringing work on their site, and remove the work, if asked. The Internet is changing the nature of copyright, as it is changing the way we collect, share, and use information as a society. Some proponents of copyright reform, have taken an idealist approach to this change, with the mantra: information wants to be free. Others have fiercely fought the change, threatening that if the current trend continues, art will disappear, creativity will collapse, and this basket of puppies will be run over by a train. (For a fantastic overview, see Vaidhyanathan, Siva “The State of Copyright Activism”).The truth, as always, is somewhere in the middle. As writers, and as bloggers, we are a new breed of authors. We have made our voice heard, and have already begun reshaping the world of information. Major media outlets, and brick and mortar media like Newsweek run segments on what we’re saying. Stories are broken by independent bloggers, elections are shaped, and devil-worshipping high school girls are outed for the 19-year-old would-be starlets they are. How we choose to shape copyright is no different. We’re not only redefining how information is used, but what value it carries. To major media outlets, this is scary stuff; to one another, and to our readers, it’s an exciting time to be informed. But we have to strike a balance between the access widening purpose we serve, and the attribution and credit we deserve. My suggestion is this: If a writer quotes you, be flattered, and be active, contribute to the dialogue. If a site reprints your article, make sure they link back to the original, and give you proper credit for your work. But, if they have an identity crisis, and think that they’re you, follow the steps in Lorelle’s excellent article. When you’re done with all of that, kick back, read some blogs, and remember, it’s an exciting time to be copied.

An attorney, musician, and gaming fanatic, Rich Frankel practices law in the greater Philadelphia area to support his music habit.

RIAA v. LimeWire: The Counterclaim

Rich Frankel — Thu, 28 Sep 2006 13:25:55 EDT

LimeWire, one of the last commercial P2P holdouts in the RIAA’s ongoing war against file sharing networks, has answered the RIAA’s complaint and counterclaimed against the RIAA on a number of grounds. The counterclaim itself is interesting for a number of reasons. For one thing, it clearly describes what LimeWire believes is the reason for the recording industry’s feverish pursuit of applications, which enable their users to trade files regardless of their status under copyright law.The counterclaim states that the recording industry had a business model based primarily on the manufacture and distribution of physical media, such as CDs. This goes a long way to explain why the recording industry has not only fought against file sharing, but also against CD-Rs, iPods, time shifting satellite radio products, and anything else that might mess with that business model.The counterclaim also highlights the difference between a true P2P application like LimeWire and services such as first-to-fall Napster and others that use a centralized server to facilitate searching and communication between users. This could be the single most important distinction in these "inducement to infringement" cases that the RIAA has brought against P2P applications. In the first instance, with applications like Napster, where there is a centralized server, there is every opportunity for the hosting company to learn of its patrons infringing uses, and further, to stop infringement.In a true P2P environment, where there is no centralized server, and as such, limited involvement or oversight of the originating company, this element of knowledge as to exactly what their users are sharing is gone. This is why the RIAA is suing primarily on “inducement to infringement” grounds (i.e. “psssst, hey, kid, check this out… if you push this red button, you can get the latest Usher for free. While you’re doing that, can I interest you in some Cialis?”).Here’s where it gets interesting: LimeWire states the impetus for the Industry’s push to shut down P2P services as, "[T]o destroy any online music distribution service they did not own or control, or force such services to do business with them on exclusive and/or other anticompetitive terms so as to limit and ultimately control the distribution and pricing of digital music, all to the detriment of consumers." (See Arista Records, et al. v. LimeWire, Deft’s Answer and Counterclaims, p. 18.)LimeWire states in the complaint that they did this by “unlawfully” extending their exclusive rights in the sound recordings they produced, in order to “cartelize” the network for the online distribution of music.This particular piece of the claim will probably fail, although it is a clever argument. The problem is that the Industry is more than welcome to decide to whom they license their intellectual property for distribution. If they wanted to refuse to license their music online at all, they would technically be within their rights as copyright holders. However, LimeWire makes what I think is a better case in their next point, arguing that the industry has engaged in price fixing measures by developing “MusicNet” and “Pressplay” as the sole means for online distribution of all four major labels, preventing price competition between these companies.The counterclaim also mentions various class actions, and investigations by the New York Attorney General and others, CD price fixing (already admitted), and handing out payola money to radio stations for airplay (also admitted).The major problem with LimeWire’s counterclaim, frankly, is I don’t see how they’re a proper Plaintiff. In order to sue somebody in our country, you need to be someone who has actually been damaged in some way by the wrongful conduct. In other words, just because you see something really wrong going down, it doesn’t mean you can take it to court, unless you personally are affected.LimeWire tries to establish they attempted to compete with the major labels in online distribution. They mention a plan they had in place for distributing copyrighted digital rights managed files, through their “Magnetmix” initiative. They state that this would have allowed for copyright owners to be compensated and there would have been a “hash based filter” discouraging users from illegally downloading copyrighted content. They then accuse the major labels of “declining to participate” for anticompetitive and wrongful purposes.I’m rooting for LimeWire. Just as I don’t think the industry had any right going after iPods or VCRs, I don’t believe the makers of an open ended technology that allows for decentralized file sharing, should be shut down because some of its users choose to use the technology for infringing purposes. But, unfortunately, the problem is far more subtle. It is not the technology itself under attack, but the commercial gains made as a direct result of users’ infringing use.The argument stands that LimeWire induced users to use the service to download copyrighted materials, and benefited financially by the use through the placement of ads throughout the service. If someone created a P2P network with no financial purpose at all, for example, Utorrent, or some other app, maybe with a built in search function, then there would be no ground for the industry to sue.Like I said, I’d like LimeWire to win this case because their service truly is decentralized, and I believe a loss here would have a further chilling effect on the technology. But I think it’s a long shot. It's pretty well known that people downloading Lime Wire to collect music sans payment drives people to the service, and directly benefits LimeWire financially.As long as this is the case, they’ll have an uphill battle. Nonetheless, the LimeWire counterclaim is a powerful indictment, and while it’s a little dry (no more than this article), serves as a great read to bring us up to date, on the “story so far” in the world of the RIAA vs. the People. It’ll be one to watch.

An attorney, musician, and gaming fanatic, Rich Frankel practices law in the greater Philadelphia area to support his music habit.