(via Michael Geist) The architect of the DMCA Bruce Lehman admits "our attempts at copyright control have not been successful." He also "he lays much of the blame at the feet of the recording industry for their failure to adapt to the online marketplace in the mid-1990s." You give the big guys more monopoly power and they innovate less. Who'd have thunk it?

Yesterday's New York Times had an obituary for Calvert DeForest aka "Larry (Bud) Melman" of "Late Night With David Letterman" fame. It reported, as some of you may remember, that NBC claimed ownership of the Larry (Bud) name when Letterman moved to CBS ---- and Calvert was barred from using the name again. Another example, perhaps small, of the evils of intellectual monopoly. link here

(via Slashdot) The EFF managed to get a patent revoked see link here

AP Reporting -

Activist groups sued the parent company of Comedy Central on Thursday, claiming the cable network improperly asked the video-sharing site YouTube to remove a parody of the network's "The Colbert Report."

Although the video in question contained clips taken from the television show, MoveOn.org Civic Action and Brave New Films LLC argued that their use was protected under "fair use" provisions of copyright law.

They said Viacom Inc. should have known the use was legal and thus its complaint to YouTube to have the video blocked amounted to a "misrepresentation" that is subject to damages under the 1998 Digital Millennium Copyright Act.

The challenge, filed in U.S. District Court in San Francisco, came about a week after Viacom filed its own, $1 billion lawsuit against YouTube, claiming that the wildly popular Web site is rife with copyrighted video from Viacom shows, including "The Colbert Report."

Neither YouTube nor its parent, Google Inc., was named in the latest lawsuit, filed on the plaintiffs' behalf by the Electronic Frontier Foundation and Stanford Law School's Center for Internet and Society.

Viacom spokesman Jeremy Zweig had no immediate comment.

Under the DMCA, YouTube and other service providers are generally immune from copyright lawsuits as long as they promptly respond to copyright complaints, known as takedown notices. According to the lawsuit, a takedown notice was sent to YouTube last week, and the video was blocked almost immediately.

Service providers are not required to investigate claims under the DMCA and in fact could lose their immunity if they take too long to respond. The law does give users the right to sue the issuer of the takedown request when it contains misrepresentations that an item is infringing. Such lawsuits are rare, though.

"People just shoot off a takedown notice without really giving a second thought to the material being taken down and whether it's really proper to be taken down," said Corynne McSherry, a staff attorney with the EFF. "A lot of people cave in because they don't realize they can push back or they can't afford to push back."

The lawsuit seeks unspecified legal costs and damages on grounds the plaintiffs' free-speech rights were harmed.

"With this lawsuit, we are making clear that corporations like Viacom must not be allowed to muzzle independent video creators and censor their free speech," said Eli Pariser, MoveOn's executive director.

The parody "Stop the Falsiness," a play on host Stephen Colbert's use of the term "truthiness," was jointly produced by MoveOn and Brave New Films, an activist production company that has made documentaries on the Iraq war, Wal-Mart and the Fox News Channel.

I'm often on opposite ends of political matters with MoveOn.org, but kudos to them for this move. It is about time that Viacom was called on the carpet for its Copyfraud. Additional kudos to the EFF which often does great work.

[EFF's legal documents and press release about the case here.]

More general information about Copyfraud can be found here.]

One question though: Colbert is a "parody" show. If you make a parody of a parody, does it then become a "satire"?

There has been much media coverage over this independent political ad created by Philip de Vellis.

Question: While the media has brought up the implications of the ad as a loophole to campaign financing restrictions, why is there no media analysis of the copyright implications?

The ad was a re-working of a commercial for Apple Computers. I happen to think that reworking the original commercial for political speech ought to be fair use. But the current state of stifling IP laws clearly seem to hold otherwise. If more in the media were to point that out, it might spur a discussion towards changing one of the many unfortunate aspects of our copyright laws.

News outlets refer to the Hillary Clinton/Apple ad as a “spoof”. But is it a “parody” spoof? Or a “satire” spoof? It seems insane to have to answer this question, but the insane state of our laws compel us to.

The courts have held that “parody” of a work falls under fair use, but “satire” does not. I have long held that you cannot legitimately distinguish between the two. Making such distinctions requires a purely subjective artistic analysis – something that should have no place in the determination of substantive law.

For instance, some argue that a recent Yiddish reworking of “Dick and Jane” should be considered unlawful “satire” since it doesn't directly "comment" on the original work as a “parody” does. I hold that it is clearly attempting to parody the WASP norms put forth by the Dick and Jane characters. Just as I hold that the “Cat NOT In The Hat!” work directly commented on Dr. Seuss's original work by making fun of Seuss's own norms in children's literature by tailoring the story to a famous murder trial. So who is right? Who knows?? It depends on your artistic viewpoint. But it is insane to have the law make distinctions in this realm.

In one instance, it is a case of free speech protected by the Constitution. In the other case, it is an unlawful act that can subject you to a six-figure fine among other penalties. It all depends on how broad a judge's personal sense of humor and/or art is. But some attorneys insist that the legal community is uniquely qualified to draw such lines.

Does the fact that Apple has refrained from claiming copyright infringement mean that it tacitly endorses the anti-Hillary ad? (and, by implication, endorses the Barack Obama campaign?) Or does it merely imply that it feels that the ad is protected speech? It would be disturbing to think that such an ad could exist for several months and generate political discussion, only to have Apple file a complaint later down the road and try to suppress the work.

This is merely the analysis in relation to a potential copyright claim by Apple. There is also the analysis for copyright infringement by the George Orwell estate. After all, the Hillary Clinton/Apple ad is also still a derivative work of 1984, right? Shouldn't Orwell's estate have a say if this ad should be able to exist or not? I don't think it should. But copyright maximalists no doubt feel otherwise.

According to the Wall Street Journal "compact-disc sales for the first three months of this year plunged 20% from a year earlier." Now I'm not sure why anyone would care: presumably sales of LP's, 8-track and cassette tapes has been zero for some time, and nobody seems especially out of sorts over it. Will the WSJ have an article about the sad decline of the buggy whip market next?

Buried deep within the article is the real news "Overall, sales of all music -- digital and physical -- are down 10% this year. And even including sales of ringtones, subscription services and other 'ancillary' goods, sales are still down 9%, according to one estimate; some recording executives have privately questioned that figure, which was included in a recent report by Pali Research." While perhaps not so dramatic as 20%, 9% - which seems to be the real number - is still a substantial fall.

If you want to understand why the fall in sales, I don't think you have to look much further than this To summarize:

I must admit to being completely flummoxed. There I sat, a loyal music fan who has shelled out actual money to a business that is supposed to be having financial problems, and the best they can do is tell me to wander the streets of Seattle looking for different internet providers who might allow me to download the music that I have already paid for, music that I have spent the better part of three house trying to listen to, and which is still unusable?

Apparently the music industry takes the maxim "no one ever got poor underestimating the intelligence of the marketplace" a little too seriously. Nobody ever got rich by offending their best customers either.

If that fart doll that you wanted to buy happens to be more expensive this year, you can thank the 7th Circuit Court of Appeals based on its decision today in JCW Investments Inc. v. Novelty Inc. (Note how the court is careful enough to include the ® trademark sign in its decision when it refers to "Pull My Finger Fred". Do they do the same if they mention the Academy Award Oscars® in a decision?):

Meet Pull My Finger® Fred. He is a white, middle-aged, overweight man with black hair and a receding hairline, sitting in an armchair wearing a white tank top and blue pants. Fred is a plush doll and when one squeezes Fred's extended finger on his right hand, he farts. He also makes somewhat crude, somewhat funny statements about the bodily noises he emits, such as “Did somebody step on a duck?” or “Silent but deadly.”

Fartman could be Fred's twin. Fartman, also a plush doll, is a white, middle-aged, overweight man with black hair and a receding hairline, sitting in an armchair wearing a white tank top and blue pants. Fartman (as his name suggests) also farts when one squeezes his extended finger; he too cracks jokes about the bodily function. Two of Fartman's seven jokes are the same as two of the 10 spoken by Fred. Needless to say, Tekky Toys, which manufactures Fred, was not happy when Novelty, Inc., began producing Fartman, nor about Novelty's production of a farting Santa doll sold under the name Pull-My- Finger Santa.

Tekky sued for copyright infringement, trademark infringement, and unfair competition and eventually won on all claims. The district court awarded $116,000 based on lost profits resulting from the copyright infringement, $125,000 in lost profits attributable to trademark infringement, and $50,000 in punitive damages based on state unfair competition law. The district court then awarded Tekky $575,099.82 in attorneys' fees. On appeal, Novelty offers a number of arguments for why it should not be held liable for copyright infringement, argues that Illinois's punitive damages remedy for unfair competition is preempted by federal law, and contends that the attorneys' fees awarded by the district court should have been capped according to Tekky's contingent-fee arrangement with its attorneys. For the reasons set forth below, we affirm.

Somewhat to our surprise, it turns out that there is a niche market for farting dolls, and it is quite lucrative…

[Hat-tip: Decision of the Day Blog]

Via the Legal Theory Blog, Suffolk University law professor Stephen M. McJohn has released an interesting paper entitled Patents: Hiding From History.

A summary:

This essay considers how patent law doctrine clouds the historical record of technological development. The essay first surveys a recent book that relied heavily on patent records to reexamine acutely the role of intellectual property in economic development, "The Democratization of Invention," by B. Zorina Khan. The essay's second part discusses how patent law today likely distorts patents as primary historical sources. The law encourages an inventor not to accurately disclose her invention and its place in technological development, but rather to submit vague and overbroad invention descriptions and claims. In describing the invention, some case results perversely favor what one commentator has called "intentional obscurity." Other aspects of law governing disclosure encourage inventors not to define their terms; or identify the category of invention in the preamble; or limit the claims to the actual invention. Likewise, inventors can be at a disadvantage if they explain the advantages of the claimed invention or submit software code used to implement the invention. Even keeping up on technology in the field may hurt the patent applicant. Reform of such rules could help the patent system today, and, as a byproduct, tomorrow's history.

Download the entire essay here.

If you are interested in keeping detailed track of all of the contested litigation over music file sharing, there is no better blog than the Recording Industry vs. The People blog.

It features many of the actual motions from cases that are slowly winding their way through the courts - waged by the brave few who refuse to kowtow to the RIAA.

Lawrence Lessig writes that the Viacom-YouTube suit is the result of judicial interference in a matter of law that Congress had already decided link here. It injected the courts into what everyone thought was settled law the safe-harbor provision of the DMCA through the use of take-down requests when it entered the Grokster case twenty months ago. That decision expanded liability under the Copyright Act to cover wrongfully providing technology that induces copyright infringement. The similarity of the Viacom-YouTube case seems pretty clear. Lessig expects the case to be long and expensive for the public. The alternative is a move by the Congress to reassert its authority over copyright as laid out in the Constitution.