Wednesday, May 23, 2007

5.24.07 M Malkin's Hump Day Unusual Moment

This article originally appeared in the May 24, 2007 edition of Metroland.

If you’re a creator and are thinking you ought to start registering your copyrights, read on.

Normally, I would tell you to just do it, and to do it now. If you’ve got stuff that that’s going out into the world, that can be easily copied, that’s going to be posted on the web, it’s always a good idea to spend the money and get it registered with the Copyright Office. Registration gives you a bunch of protections you wouldn’t get otherwise, like the ability to go to court if somebody rips you off. And yes, it’s infinitely better than mailing yourself your work, which is tantamount to peeing in your hat. Really. Don’t bother. “Poor Man’s Copyright” is a myth that just won’t seem to go away.

Anyway, if you’re thinking about registering your stuff, don’t do it yet! Wait a little while. Sometime this summer, the Copyright Office is going to start accepting electronic filings over the internet. Not only will it be simple and maybe even fun, the price of registering online will be $35, a $10 savings from the paper filing fee of $45. Digitized versions of your work will be accepted with the filing. The Copyright Office doesn’t come out and say it, but electronic filing will almost definitely speed up the registration process, which has in the past taken months and months, which can be really frustrating if somebody’s infringing your work and you need the registration right now.

And don’t forget, collections of works in the same media can be registered on one application if all of the works are unpublished. That’s a bargain. For more info, go look at

Moving on. One interesting thing about intellectual property law in these extremely polarized times is how it seems to have battlegrounds in a dimension that’s totally disconnected from the whole Red State / Blue State / Phony Christian / Two-faced Liberal paradigm that seems to dominate everything else in the world.

Like this here: last week blow-hard conservative weenie columnist Michelle Malkin posted a video blog on her site and on YouTube in which she blasted Senegalese rapper Akon. She included some Akon video clips, including one of Akon dry-humping and dragging a girl, reported to be a 14 year old minister’s daughter, around a stage in a nightclub in Trinidad. Malkin’s outrage was entirely justified, although I’ve seen the clips, and if that girl’s really 14, then, well, I’m really Karl Rove. No matter; it would be disgusting if she were 41. And I’m not exactly a prude.

Those nice folks at Universal Music Group, Akon’s label, demanded that YouTube take Malkin’s podcast down, claiming the clips included some of Akon’s precious music, for which Universal owns the copyrights. YouTube, which is getting sued left and right for copyright violations, quickly complied.

There’s a little problem here that involves free speech and fair use. The Electronic Frontier Foundation, an organization often painted as “anti-creator” and “copy-leftist”, came to Malkin’s aid, explaining to both Universal and YouTube that Malkin’s use of the Akon clips was protected by the First Amendment and the fair use doctrine, which allow the use of otherwise copyrighted material in conjunction with commentary and criticism. This is basic, obvious, and fundamental. Universal was using copyright law to stop Malkin from talking about one of its “artists.” And that’s just not how it works.

In any event, it’s a fascinating alliance, as evidenced by the semi-coherent ramblings of Malkin’s pathetic neocon fans in the comments to her blog. The EFF is blasting away at Bush administration darlings like the federal ID program, data mining, illegal NSA surveillance, airport security paranoia, and bogus electronic voting machines, and the EFF’s championing of Malkin’s free speech rights is leaving the ditto-heads a trifle dazed and confused.

It’s called consistency, fools. Shut up, look, and think for a change, and maybe you’ll learn something.

Speaking of fair use, a video popped up on the web this week that’s absolutely breath-taking. A ten minute remix masterpiece that came out of Stanford University’s Fair Use Project uses Disney animated characters to explain copyright law and the fair use doctrine, one word or short phrase at a time. What makes this particularly dazzling is the fact that Disney has long been the evil empire of information abuse, consistently over-protecting its “properties” to the detriment of free speech, even going so far as buying Congressional approval of an extension of the statutory term of copyright ten years ago so that Mickey Mouse wouldn’t fall into the public domain. As I just told a client 20 minutes ago, there’s copyright law, and then there’s the law of Disney.

I’m sure Disney’s shiny young lawyers are wringing their hands over this one, and they have to know that if they lift a finger to squelch this instant classic on the internet or anywhere else, they’ll be buried alive. Google “fair use Disney” and you’ll find it all over the web. Enjoy!

Wednesday, May 09, 2007

5.10.07 C&D BFD

This article was originally published in the 5.10.07 edition of Metroland.

Geekdom was all a-twitter last week with cries of anarchy and rebellion. It was great. I’ll try to explain, and excuse me it I don’t get it exactly right. I think I’m close, though.

It all had to do, at least ostensibly, with some computer code that “protects” the new high-definition DVDs. These are the DVDs that you don’t buy, because you don’t have a hi-def player or a high-def TV. You might never buy them, in fact, because regular DVDs are just fine. But I digress.

Back in January, somebody hacked this protection code, and posted a 32-character “key” that allows the protection to be bypassed on a blog somewhere. This is, of course, a time honored tradition. The hack was done for sport, for bragging rights. The mighty media companies are always putting these protections on their “products”, and they pretty much all get hacked within days of release. No matter how smart the Einsteins of the corporate world are, there’s always a kid in a dorm room somewhere who’s smarter.

It’s a lot to ado about very little. This posted “key” requires more software and fiddling before it actually does anything. I doubt many people have done anything with it, because it’s cumbersome and complicated, and especially because it unlocks the protection on hi-def disks that hardly anybody owns.

Anyway, last week, the “key” wound up in an article that got posted on, which is a site where anybody can post an article, and then people vote on their favorite articles, and the most popular articles get posted first. Or something like that. It’s a popular site of “netizens”, a less rigorous subset of not-quite geeks, and you know who you are.

Then the legal department of some big media consortium sent Digg a cease and desist letter telling them that the posting of the “key” violated the consortium’s rights under the Digital Millenium Copyright Act, which forbids the dissemination of things that defeat copyright protection measures. 32 random-looking letters and numbers, a legal hot potato!

For background, keep in mind that similar C&D letters have been sent to kids who figured out that earlier copy-protection schemes could be defeated by holding down the CTRL key while a disk was loading, or by running a black Sharpie around the edge of a disk. One letter went to a college professor who answered an industry challenge to hack a “hack-proof” disk, and was going to present his findings at an academic conference.

C&D letters are part of an attorney’s stock-in-trade. I send them out once in a while. I have several different templates, of varying temperatures, ranging from “pardon me, you really shouldn’t oughta be doing that” to “stop the crap or your ass is grass, scumbag.” They cost next to nothing to get out the door besides the cost of the stamp.

Big Media copyright owners tend to shoot first and ask questions later with C&D letters, figuring that the vast majority will scare the bejesus out of the recipient. You’ve got the impressive legal letterhead, listing offices in New York, LA, London and Tokyo, the stilted antiseptic legal prose, the demands for an accounting of profits, the recitation of the maximum damage penalties available under copyright law of $150,000 per act of infringement. Most folks, acting rationally, figure the party’s over, turn off their computers, draw the shades, and sit shivering in the corner until it all blows over.

Back during the first internet boom, some net activists I worked with had a nice counter-measure when they got C&D letters. They posted them on the web. The bullies got exposed as bullies, they looked silly and they usually backed off, because most of them they were just blowing smoke to begin with. Once, an activist got a second C&D letter from a law firm, claiming copyright protection protection for the first C&D letter, and demanding that the first letter be taken down! That one got posted, too. As I’ve said before, there’s a special place in hell for lawyers like that.

Anyway, at first Digg didn’t fight back. Digg removed all postings of the “key”. And that’s when it hit the fan. Digg users, outraged at this spinelessness, started posting hundreds of articles containing the “key” on and then voted for them. They went up faster than the Digg people could remove them. At one point, the first five Digg pages were nothing but posts of articles containing the “key”. Meantime, somebody filmed himself singing a song with the “key” as the lyrics, and stuck it on YouTube. People are selling artworks and t-shirts containing the 32 characters. At last count, there were something like 700,000 postings of the “key” all over the internet.

So the Digg people changed course, saying the Digg community had spoken, and that the lawyers would just have to deal with it, and left everything up on the site.

The lawyers, the corporate lawyers, are, of course, idiots. This reaction was as predictable as the sun coming up. At this point, it should be over, at least for this round. The DVD consortium has rewritten the copy protection code. By the time you read this, it probably will have gotten hacked, too.