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The Electronic Frontier Foundation has published its latest "Takedown Hall of Shame" installment, listing three companies that used baseless and stupid legal threats to censor the Internet. The current crop includes Kern's Kitchen in Louisville, which claims a trademark on the common term "Derby Pie" and threatens bloggers who post their family recipes for the classic desert -- they also target WordPress.com for their threats (one victim changed the name of the recipe to "Mean Spirited Censorship Pie").
Another inductee is Time Warner Cable, who went after a critic who put up a site making fun of the company's terrible customer service, trying to get its YouTube, Twitter and other social media sites taken down.
Finally, there's Fox, which earned a place in the Hall of Shame by sending out fraudulent takedown notices over my bestselling novel Homeland, swearing on pain of perjury that it represented me (it doesn't).
Best selling author and native Yiddish speaker Michael Wex has launched an indiegogo campaign to translate what he is calling the most important work of world literature that you've probably never heard of. The book, written by Joseph Opatoshu in 1921 when he was a young Polish immigrant living in New York City is an historical novel about 19th century Jewish Eastern Europe:
A vast panorama of Jewish life in Poland during the 1850s, Opatoshu's novel concentrates on backwoods Jews who live among gentile peasants rather than in Jewish communities in cities or shtetlekh. Touching as it does on hasidism, heresy, pre-Christian Polish folk customs, wife-swapping, messianism, and Polish nationalism, this book will change the way you think about Jewish life in Poland.
When he completes the work in about a year the translated novel will be released under a Creative Commons license. Wex hopes that a new translation will bring Opatoshu's 1921 novel to a broader audience. "It'll change everybody's views of Jewish life in Poland,' Wex writes. 'If this campaign works, it'll also help other translators find a way to fund their own projects and establish a whole library of world literature that hasn't been translated into English before or has never been translated properly. Raising the money in advance means that the translators can work full time; since the finished product doesn't cost anything, they don't have to worry about a book's commercial potential. It's like a grassroots Guggenheim."
Judge Wright has issued his long-awaited ruling in the case of Prenda Law, the notorious porno copyright trolls who used fraud and bullying to extort millions from Internet users by threatening to sue them for downloading pornography videos with embarrassing titles. Prenda used a combination of offshore shell companies, obfuscation, and even identity theft to disguise the ownership of their con, and when they landed before Judge Wright, it all started to unravel.
The judge has fined Prenda $80,000 ($40K in fees, doubled for punitive measure) and asked the FBI to investigate them for racketeering. He held that their operation was a fraud, that they had committed identity theft, and, importantly, identified Steele, Hansmeier, and Paul Duffy as the "de facto owners" of Prenda. He's asked the lawyers' bar associations to have them disbarred. And he made a lot of Star Trek references!
Nevertheless, it is clear that the Principals’ enterprise relies on deception. Part of that ploy requires cooperation from the courts, which could only be achieved through deception. In other words, if the Principals assigned the copyright to themselves, brought suit in their own names, and disclosed that they had the sole financial interest in the suit, a court would scrutinize their conduct from the outset. But by being less than forthcoming, they defrauded the Court. They anticipated that the Court would blindly approve their early-discovery requests, thereby opening the door to more settlement proceeds.
As for penalties, they begin with attorneys' fees. Prenda will have to pay these to the two defense lawyers who have been instrumental in this case: Morgan Pietz and Nicholas Ranallo. Wright awards $36,150 in fees to Pietz, $1,950 in fees to Ranallo, as well as legal costs (copying and filing fees, for example) to both. He then doubles the amount "as a punitive measure," arriving at $81,319.72. In a footnote, Wright says that the sum "is calculated to be just below the cost of an effective appeal"—a final dig at the Prenda business model of settlement offers just below the cost of defense. The Prenda folks have 14 days to pay up.
The harshest penalties are saved for last. First, Judge Wright suggests the Prenda lawyers should be disbarred, writing "there is little doubt that Steele, Hansmeier, Duffy, [and] Gibbs suffer from a form of moral turpitude unbecoming an officer of the court." In many states, including California, crimes reaching the standard of "moral turpitude" lead to automatic disbarment. Wright will be referring the four lawyers to every state bar in which they are admitted to practice...
Third, though Plaintiffs boldly probe the outskirts of law, the only enterprise they resemble is RICO. The federal agency eleven decks up is familiar with their prime directive and will gladly refit them for their next voyage. The Court will refer this matter to the United States Attorney for the Central District of California. The [court] will also refer this matter to the Criminal Investigation Division of the Internal Revenue Service and will notify all judges before whom these attorneys have pending cases.
Prenda hammered: Judge sends porn-trolling lawyers to criminal investigators [Joe Mullin/Ars Technica]
Natalie Jubb comes out to many of my events in Toronto with her charming kids, and while I knew she was an artist (mostly lovely mosaics), I hadn't had a chance to get a good look at her work until today, when she tweeted a link to "The Story of a Piece of Paper," a board-book she wrote and drew with the help of her daughter Katya. Natalie and Katya have released their book as a CC-licensed PDF (it's a picture book, so they needed to control the layouts pretty closely). It's a fabulous read, and has my favorite kids' book origin story: the bedtime-story-become-a-book.
The Story of A Piece of Paper was commissioned by my older daughter Katya one bedtime when she was four. “Can you tell me a new story?” she said. “Make one up yourself. What about? Oh, just a piece of paper.”
So I made up this story with the girls’ help, and they were quite pleased with it. So pleased that they kept requesting that same story again and again. I personally didn’t think the story was all that great. But clearly I have a poor grasp on what literature appeals to children.
For the girls’ birthdays this year, I decided to illustrate their story and make it into a book. I thought that it would make a memorable birthday present and also that seeing characters from their imagination on a pages of a real book will encourage my kids to keep inventing stories and creating things.
Robbo sez, "Molly Crabapple's first major solo show, SHELL GAME, closed last Tuesday. Yesterday she released hi-res versions of the works under Creative Commons Share-Alike Non-Commercial. In her words:
"Without the support of hundreds of people online, Shell Game would never have happened. The internet believed in me, believed in the promise of my art, and showed that in concrete ways.
The internet gave me Shell Game.
I want to give them something back.
Today is May Day. The day of workers, immigrants, beautiful young girls, and rebellion. I'm releasing all the art from SHELL GAME on Creative Commons. Share. Remix. Make art. Wheatpaste the world."
Earlier this month, the Electronic Frontier Foundation asked the US Patent and Trademark Office to turn down six broad, bogus patents on 3D printing that could pave the way for even more patent-trolling on the emerging field of 3D printing. They worked with the Cyberlaw Clinic at Harvard’s Berkman Center for Internet and Society and Ask Patents, as well as with its own supporters to gather evidence on the prior art that invalidates these applications. It's part of a larger project to systematically challenge patents in emerging fields -- next up is mesh networks -- providing a layer of vigilance and common sense atop the reckless and indifferent patent office.
Here are copies of what we submitted to the Patent Office. The good news is that so far, the Patent Office has accepted our submissions (because of that, if you're thinking of making your own preissuance submissions, you might want to use these as a model). Now we wait to see whether our input influences the examiners.
Our work doesn’t stop here. Next we’re going to investigate a number of pending applications that impact mesh networking technology—another area with an extremely active open development community and with tremendous potential. We’ll be asking you to help us again soon. Stay tuned!
Just one more way that EFF is making the future a better one.
Remember ACTA, the terrifying, secret SOPA-on-steroids copyright treaty that the US government tried to ram down the world's throat? Well, it's back, only this time it's called the Trans-Pacific Partnership, and it's limited (for now) to the Pacific Rim. The TPP negotiators are meeting (in secret, natch) in Peru to twirl their mustaches and cackle, and EFF has posted a great infographic summing up their nefarious plan (see the whole thing after the jump):
The TPP is likely to export some of the worst features of U.S. copyright law to Pacific Rim countries: a broad ban on breaking digital locks on devices and creative works (even for legal purposes), a minimum copyright term of the lifetime of the creator plus seventy years (the current international norm is the lifetime plus fifty years), privatization of enforcement for copyright infringement, ruinous statutory damages with no proof of actual harm, and government seizures of computers and equipment involved in alleged infringement. Moreover, the TPP is worst than U.S. copyright rules: it does not export the many balances and exceptions that favor the public interest and act as safety valves in limiting rightsholders’ protection. Adding insult to injury, the TPP's temporary copies provision will likely create chilling effects on how people and companies behave online and their basic ability to use and create on the Web.
My latest Guardian column is "Trademarks: the good, the bad and the ugly," and it looks at why trademark, at its best, does something vital -- but how trademark can be abused to steal common words from our language and turn them into a twisted kind of pseudo-property.
Trademark lawyers have convinced their clients that they must pay to send a threatening notice to everyone who uses a trademark without permission, even where there is no chance of confusion. They send letters by the lorryload to journalists, website operators, signmakers, schools, dictionary publishers – anyone who might use their marks in a way that weakens the association in the public mind. But weakening an association is not illegal, despite the expansion of doctrines such as "dilution" and "naked licensing."
When called out on policing our language, trademark holders and their lawyers usually shrug their shoulders and say, "Nothing to do with us. The law requires us to threaten you, or we lose our association, and thus our mark." This is a very perverse way of understanding trademark.
The law is there to protect the public interest, and the public interest isn't undermined by the strength or weakness of an association with a specific word or mark with a specific company. The public interest extends to preventing fraud, and trademark uses the motivation of protecting profits to incentivise firms to uphold the public interest.
A "Snowball" is a poem "in which each line is a single word, and each successive word is one letter longer." Nossidge built an automated Snowball generator that uses Markov Chains, pulling text from Project Gutenberg. It's written in C++, with code on GitHub. The results are rather beautiful poems (these ones are "mostly Dickens"):
Rogue archivist Carl Malamud sez,
One agency of the federal government has issued a takedown notice to another agency of the federal government, which in turn demanded that we remove a film from the Internet. Not knowing what to do, I have appealed for your help.
I hereby bring this plea before the Court of Appeals for Wonderful Things, appealing to a jury of my peers, all happy mutants, for their verdict. Here are the facts of my case:
* After the assassination of of John F. Kennedy on December 23, 1963, the United States Information Agency (USIA), with the assistance of citizen Gregory Peck, produced a 90-minute film called John F. Kennedy: Years of Lightning, Day of Drums.
* The film was shown overseas to rave reviews. The Daily Mirror of Manila described it as a "work of art." The Times of India said "Each and every shot of this one and a half hour long film is so effective and heart touching that the spectators remain spellbound to the last minute." The Star of Johannesburg said "This film makes one want to be an American."
* The USIA was prohibited by law from distributing films in the United States as it was then illegal for the government to propagate domestic propaganda.
Read the rest
A Second Circuit Appeals Court judge has handed down a landmark fair use decision in Cariou v. Prince. Prince, a collagist, remixed some of Cariou's photos and sold them for large sums. Cariou argued that the new works were not fair because Prince did not create his collages as a comment on the original (one of the factors judges can consider in fair use cases is whether the new work is a commentary or parody). The lower court agreed, and ordered destruction of the show catalogs and a ban on hanging the new works. But the appeals court overturned, and held that a use can be fair even when it doesn't comment on the original.
"We conclude that the district court applied the incorrect standard to determine whether Prince's artworks make fair use of Cariou's copyrighted photographs," writes Judge B.D. Parker in the decision, which was released this morning. "We further conclude that all but five of Prince's works do make fair use of Cariou's copyrighted photographs. With regard to the remaining five Prince artworks, we remand the case to the district court to consider, in the first instance, whether Prince is entitled to a fair use defense."
"This decision absolutely clarifies that the law does not require that a new work of art comment on any of its source material to qualify as fair use," attorney Virginia Rutledge told A.i.A. by phone this morning after a preliminary survey of the decision.
"This is a major win for Prince on at least two counts," NYU art law professor Amy Adler told A.i.A. via e-mail. (She consulted on the case but was speaking for herself.) "The court decided that artwork does not need to comment on previous work to qualify as fair use, and that Prince's testimony is not the dispositive question in determining whether a work is transformative. Rather the issue is how the work may reasonably be perceived. This is the right standard because it takes into account the underlying public purpose of copyright law, which should not be beholden to statements of individual intent but instead consider the value that all of us gain from the creation of new work."
Richard Prince Wins Major Victory in Landmark Copyright Suit [Brian Boucher/Art in America]
Kyre sez, "The Free Culture Foundation has posted a thorough response to the most common and misinformed defenses of the W3C's Extended Media Extensions (EME) proposal to inject DRM into HTML5. They join the EFF and FSF in a call to send a strong message to the W3C that DRM in HTML5 undermines the W3C's self-stated mission to make the benefits of the Web 'available to all people, whatever their hardware, software, network infrastructure, native language, culture, geographical location, or physical or mental ability.' The FCF counters the three most common myths by unpacking some quotes which explain that 1.) DRM is not about protecting copyright. That is a straw man. DRM is about limiting the functionality of devices and selling features back in the form of services. 2.) DRM in HTML5 doesn't obsolete proprietary, platform-specific browser plug-ins; it encourages them. 3.) the Web doesn't need big media; big media needs the Web. There is also a new coalition of 27 internet freedom companies and groups standing up to the W3C."
Canada Post -- a failing, state-owned Crown Corporation -- not only claims a copyright on the database of postal codes (a collection of facts, and not the sort of thing that usually attracts copyright). They also claim a trademark on the words "postal code," and have sent legal threats to websites that use the words factually, to describe actual postal codes.
Canada Post disagrees. The crown corporation now argues that the very term “postal code” is subject to a trademark owned by Canada Post. Anyone using the term “postal code,” therefore, does so at their own risk.
“Canada Post has adopted and used Canadian Official Mark POSTAL CODE,” the statement of claim reads. “The Defendants have passed off their wares and services as and for those of Canada Post contrary to section 7(c) of the Trade-marks Act.”
What this means is Canada Post is changing direction in their lawsuit against Geolytica.
Geolytica has argued since the lawsuit began that they did not copy the Canada Post postal code database, but instead built their own based on the feedback of their own users. They crowd-sourced it. This makes Canada Post’s original copyright claim trickier, even if you set aside the facts vs. intellectual property argument.