Eyes on the Costs: Documentary Film Making and the escalating costs of copyright clearances

Peter Jaszi and Pat Aufderheide have published the final report from their year-long study, Untold Stories: Creative Consequences of the Rights Clearance Culture for Documentary Filmmakers.

The costs of obtaining clearances for documentary film makers was one of the objections raised in teh context of the discussions on the FTA. Many argued that term extension only exacerbated the problem of the high transaction costs that arise from the need, by documentary filmmakers, to obtain many clearances to show their work.

The issue has been dramatically illustrated in recent times by the controversy over Eyes on the Prize. This extract from a Wired News Story on the controversy:

"Eyes on the Prize, the landmark documentary on the civil rights movement, is no longer broadcast or sold new in the United States. It's illegal.
The 14-part series highlights key events in black Americans' struggle for equality and is considered an essential resource by educators and historians, but the filmmakers no longer have clearance rights to much of the archival footage used in the documentary. It cannot be rebroadcast on PBS (where it originally aired) or any other channels, and cannot be released on DVD until the rights are cleared again and paid for. "

Jaszi and Aufderheide have found in their study that:

• Rights clearance costs are high, and have escalated dramatically in the last two decades
• Gatekeepers, such as distributors and insurers, enforce rigid and high-bar rights clearance expectations
• The rights clearance process is arduous and frustrating, especially around movies and music
• Rights clearance problems force filmmakers to make changes that adversely affect—and limit the public’s access to--their work, and the result is significant change in documentary practice
• Filmmakers, while sometimes seeing themselves as hostages of the “clearance culture,” also are creators of it
• Filmmakers nonetheless exercise fair use, and imagine a more rational rights environment

The report also has a series of recommendations.

I wonder whether things are the same here in Australia? Anyone who has stories or friends with stories, I'd be really interested to hear (k dot weatherall at unimelb dot edu dot au).

 
Quiggin on creative commons

You know that something interesting is happening when the Australian launch of Creative Commons rates an op-ed in the Fin Review. Quiggin's discussion here.

 
Copyright and Orphan works

One of the issues debated in Australia in the wake of the FTA with the United States has been the problem of "orphan works" - works still in copyright but no longer exploited, which are banished to Limbo (in the ancient meaning of that term) until they finally fall gasping into the public domain. It's one of the costs of copyright term extension that more and more of these orphan works are created.

Well, the Copyright Office over in the US is apparently going to have an inquiry on the issue. This will be something to watch. If they were (god forbid) to come up with some proposals to fix the problem, maybe we could get those happening here too......

Here's the Notice from the Copyright Office:

"COPYRIGHT OFFICE ANNOUNCES ORPHAN WORKS STUDY (70 FR 3739)

The Copyright Office seeks to examine the issues raised by "orphan works," that is, copyrighted works whose owners are difficult or even impossible to locate. Uncertainty surrounding ownership of such works might needlessly discourage subsequent creators and users from incorporating them in new creative efforts or making such works available to the public. The Copyright Office requests written comments from all interested parties on whether there are compelling concerns raised by orphan works that merit a legislative, regulatory, or other solution, and if so, what type of solution could effectively address these concerns without conflicting with the legitimate interests of authors and right holders. Comments are due by 5:00 p.m. EST on March 25, 2005. For detailed information on submission requirements and further information, go to the Copyright Office website at http://www.copyright.gov/fedreg/2005/70fr3739.html"

 
Post in Honour of Jim Lahore

Yesterday at Melbourne University we had a Conference to Honour Jim Lahore, to mark the retirement of this very prominent Australian IP academic (and yes, the photo on the website is very old!). It was an excellent event, organised by Megan Richardson and Sam Ricketson. Highlights included:

• Ray Finkelstein on just how often Lahore is cited around the world (multiple times, I can assure you);
• questions on how IP is being taught, and where IP teaching is going, raised by Janice Luck in particular, as well as Des Ryan,
• the assertion of "Christie's Laws" - that IP subsections will double every 20 years and inquiries on IP law will double every ten years
• comments by Warwick Rothnie that perhaps there are some issues we need inquiries on, even now;
• the suggestion of a moratorium on all inquiries for at least 5 years so we can actually see what the present law does...
• and of course John Emmerson's after dinner speech on Jim's general prosperity.

A good time was had by all... congrats Jim.

 
Open Source and Patents

One of thsoe questions floating around at the moment in relation to software patents is - do customers of open source software providers risk being sued for patent infringement? Should they shy away from OSS because of that risk?

Here's a piece by Stephen Walli arguing no - this is just not an issue.

 
Many Grokster briefs are in now

I've already blogged on the relevance of the Grokster case: the case before the US Supreme Court on the legality of P2P filesharing software under copyright law. It has relevance for the current Kazaa litigation here in Australia, which will be examining the same questions.

Now, for those wanting a bit of inspiration on the issues in Kazaa, many of the Grokster briefs have been filed.

Commentary available from Ed Felten here.

 
Happy Australia Day!

I hope you're all waving flags out there.

 
ASEAN FTA

Warwick Rothnie usefully points out that DFAT has called for submissions on what should or should not be in the negotiations for an FTA with ASEAN. Submissions are due by 4 February 2005, and can be emailed. Information is available on the DFAT site; the call for submissions is here.

I've not had the sense at any stage that DFAT is keen to negotiate an IP chapter like Chapter 17 of the US-Australia FTA. I think the IP chapter of our free trade agreement with Singapore (pdf) is more likely to represent the Australian approach. That Chapter is pitched at a really basic level. It is all of 3 pages long (compared to the 30 or so pages of the USAFTA). It contains some pretty fuzzy commitments to join various multilateral treaties and to cooperate on enforcement.

However, a detailed chapter is still a possibility, and may be pressed for by those who see Chapter 17 of the FTA as a Good Thing. So, if you are opposed to the extension of the US model into ASEAN, it is probably worth putting in a submission along those lines.

 
New Trade Marks Office Decisions

Some new TMO decisions have gone up on IP Australia's website (they've not yet made it to Austlii). Theme of the day is non-use - and in particular, the moral of today's cases is keep your ownership clear:

• ARCHI (pdf) - a complicated tale of assignments, authorised users and backsupports;
• The intriguingly-named DRUG HOUSES OF AUSTRALIA case (pdf) - all about proving use by providing invoices which do not use any depiction of the full mark but indicate something was sold under the relevant name.

Then there's the SECRENT MEN'S BUSINESS case: a sad tale of misspellings. Moral of this story is get the spelling right on your application, because the TMO may (as happened here) refuse permission to amend a misspelt word (that's right - they couldn't amend to SECRET MEN'S BUSINESS)

 
Interesting book review

For all of you who haven't had time to read James Boyle, Lawrence Lessig, and Vaidhyanathan, here's a book review that will give you a bit of a quick cheat sheet. I'd classify it as a fairly general, good summary of the debate, but not satisfying for those already involved or who have already read the stuff. A taste:

"While a range of copyright-infringing technologies has been changing the way we interact with our culture, critics of excessive copyright protection have been forging a coalition to demand that the law be brought more in line with the capabilities of these technologies. The challenge is considerable. Individual intellectual property rights are often in conflict with one another, and the only groups with a common interest in the direction of such laws are those corporations who want to lock up culture in perpetuity (or "forever minus a day," as former Motion Picture Association of America head Jack Valenti once suggested). Even following the twists and turns of the debate is difficult, since negotiations are seldom held in public. "This cultural war is almost invisible," writes David Bollier in Brand Name Bullies: The Quest to Own and Control Culture. "It is happening quietly and incrementally—in rulings by distant courts, in hearing rooms on Capital Hill and obscure federal agencies, in the digital code that Hollywood and record labels surreptitiously implant into DVDs and CDs. "

 
via IPKat: DVD manufacturers sued for antitrust breaches in China.

China Daily is reporting that group of DVD manufacturers, consisting of Sony Corp, Philips, Pioneer Corp and LG Electronics and known as the 4C Patent Group are being sued by two Chinese DVD manufacturers. It is alleged that the DVD manufacturers fixed prices, unlawfully tied patents together, and conspired to monopolise the DVD player market.

 
Patents beyond the RIM: Canada protests extra-territorial application of US patent law

What happened: US company NTP, which has a big patent portfolio, sued RIM (Research in Motion), a Canadian company that produces the Blackberry, for patent infringement. The infringement claim was upheld at first instance and on appeal by the Federal Circuit.

The issue? A big part of the case involves conduct that occurred only in Canada. Normally patent law is territorial - ie you can only sue for infringement of a US patent in a US court and for conduct that occurs in the US. That's quite a big protection for most of us, since no Australian, or Canadian, or New Zealander, or anyone else for that matter wants to be dragged into a US court if they can avoid it. As the NYT puts it:

"R.I.M. is arguing that because its relay server, through which all BlackBerry e-mails pass, sits in R.I.M.'s Canadian hometown, the software is beyond the reach of American patents, despite the fact that over a million BlackBerrys are used in the United States."

As Michael Geist points out, Canada has a big interest in avoiding a situation where Canadian companies can be hauled before US courts for conduct occurring in Canada. So do we, for that matter.

And so do all the people who are worried about software patents. When Richard Stallman was out recently, he talked about software patents, and I remember, after his talk, having a discussion with a few open source type people about the issue. They were all coming up with proposals to avoid software patent infringement in the United States by having servers located in other countries. Sounds very much like that argument is being closed off to me...

• The Federal Circuit judgment is available here.
• The Canadian government brief is available here (pdf)
• The summary story in the New York Times is also quite good
  

 
Dates have been set for the MGM v Grokster case

Via Slashdot: over in the US, the Supreme Court has apparently announced the dates for the MGM v Grokster case. This is the case in which the 9th Circuit Court of Appeals held that providers of the FastTrack P2P file sharing software were not liable for infringing copyright when they made their software available. The decision is very much based on the 1984 US Supreme Court decision in the Betamax case (which held manufacturers of video recorders were not liable for copyright infringement just for selling video recorders that they knew could be used for infringement).

Arguments in Grokster will start March 29. A decision is expected July 2005.

All this means it could interact in some rather interesting ways with the litigation over here in the Kazaa case. Wilcox J has currently reserved judgment in the case. If we assume that the case will go to the Full Federal Court, depending on when Wilcox J hands down his decision, the Full Federal Court could end up hearing the case after the Supreme Court makes its decision...

 
Grokster, Kazaa, and secondary liability

As we (eagerly? with trepidation?) wait for the judgment at first instance in the Kazaa litigation here in Australia, I came across this post from Susan Crawford, commenting on the Grokster case, another 'secondary liability for P2P providers' case which will go before the US Supreme Court this year. Crawford, commenting on the 1984 Sony (Betamax) decision which held that companies could make and sell video recorders without breaching the Copyright Act, said:

"Taking another close look at that case reminds me how careful the Court was to extend the boundaries of copyright liability only to include (as secondarily liable) those who were doing everything but the actual infringing.

So, for example, someone who produced a script, sold the resulting motion picture to others, and then expected that it would be commercially exhibited (with the exhibition and the reproduction the infringing acts) is seen as someone who has done everything possible other than the final, implementing act of infringement.

And someone who is in an ongoing relationship with the direct infringer and is knowingly facilitating the infringement (again, "doing everything but") is a contributory infringer. Such an actor falls within the very tight circle drawn just outside direct liability.

I don't think the Sony Court would have created an "inducement" standard. They would have gone to Congress rather than make something like that up. The Court at that point was very nervous about expanding the statutory monopoly of copyright."

I wonder if, when Wilcox J pronounces, we will be able to say the same thing?

 
Long judgments, short judgments, and assessing the merit of judgments

One thing I have often debated, particularly with Americans at conferences, is the length of Australian judgments. I can't tell you how many times I've received complaints from overseas commentators on how long Australian judgments are by comparison with judgments overseas, and how impossible to analyse and interpret as a result.

My inclination, in general, is to agree. I do think, far too often, Australian judgments are much, much too long, and not the more informative for their length. A good example of this is the Desktop Marketing Systems v Telstra decision in the Full Federal Court. I think there is something to be learned by comparing Justice Lindgren's extremely thorough, but definitely over-long judgment to the judgment of Justice Sackville, which is much easier to read and comprehend because, it seems, there has been more of an effort to really synthesise the ideas and reasoning being employed in the case.

You can assume that judges are really speaking to lawyers and other judges (and law students, and to a lesser extent, law academics). If so, then you might argue that they can afford to be a bit longer, because lawyers are used to reading long things.

But lawyers are, to use jargon, "time poor". So the reality is that once you hit a judgment that tries to address, in some way, every single case in the past that might have been relevant, people do switch off, or they move to the paragraph where the judge summarises what he has found (eg, in Desktop, paragraph 160) and effectively ignore the rest. The result is that most people (the ones who haven't obsessed over a case for months) are likely to misunderstand the reasoning.

Now we have some legal theorists considering the issue. Via Legal Theory Blog, this thought:

"Choi and Gulati have argued that short opinions are actually an indicator of judicial excellence, because shortness is a proxy for judges writing their own opinions as opposed to delegating that task to clerks."

I think there's more to it than that. Delegation to clerks (associates) can be one reason for long judgments. The other reason can be that, if we assume that judges think as they write (hopefully, they do!), then long judgments indicate they haven't had time to go back and synthesise the ideas in a judgment, and cut out all the unnecessary bits.

Read the whole post on Legal Theory Blog - it's all about whether all the stats indicate that Justice Posner should be appointed to the Supreme Court (regardless of the political reality that he never would be).

 
Headline of the day

Every now and then a newspaper headline just stops you in your tracks. So here's mine for today. It was on the front page of the Age this morning, although it has moved inside now:

"Torture is Illegal"

 
Interesting reading for trade-marky type people...

J Thomas McCarthy, expert-extraordinaire of trade mark (sorry, "trademark") law over in the US has an article on trade mark (trademark) dilution, in the current volume of the Trademark Reporter, and, excitingly, available in full online here. To quote Larry Solum, download it while it's hot!

Now, of course, I would explain in more detail just what trade mark dilution is, but as McCarthy puts it:

"No part of trademark law that I have encountered in my forty years of teaching and practicing IP law has created so much doctrinal puzzlement and judicial incomprehension as the concept of ‘dilution’ as a form of intrusion on a trademark. It is a daunting pedagogical challenge to explain even the basic theoretical concept of dilution to students, attorneys and judges. Few can successfully explain it without encountering stares of incomprehension or worse, nods of understanding which mask and conceal bewilderment and misinterpretation."

So I won't try here. Read the article!

 
They're not giving in easily

Another proposal in the US for a law against P2P software developers (what are we up to now: Induce Act III? IV?). Commentary via Ed Felten here, and Techdirt here.

 
Via Techdirt: Moves to a copy protection standard in consumer electronics?

This story on Techdirt, and this press release, report that a whole bunch of consumer electronics companies - not just the (content owning) Sony, but also Samsung, Phillips and Matsushita, have agreed to join together to create a single copy protection standard.

Techdirt laments the development, concerned that (a) it means the consumer electronics companies have stopped 'fighting the good fight' and standing up to copyright owners, and (b) it will make things ever more complicated and limited for consumers (who will respond by going online to get stuff).

I can't help but think it may be more complicated than that - it could be that (a) the whole thing will go the same way SDMI did (ie nowhere), or (b) the standard will, because developed by consumer electronics companies rather than content owners, end up being a whole lot less restrictive than it might otherwise have been. So it might not be as bad as Techdirt says. But maybe I'm just a boogle-eyed optimist.

 
OK, this is just weird.

I suppose if you are a trade mark you can't get a telegram from the Queen for turning 100.

 
French Court refuses to cut off P2P users without a hearing

A French court has refused to apply special 'urgent procedures' to cut the Internet connection of 20 P2P users in France. More on this story here, at the site of Jean-Baptiste Soufron. Particularly interesting is the fact that the court has interpreted the relevant law as NOT allowing courts to cut the contract between ISP and user - that they can only suspend access to material being disputed in litigation (ie, not the whole Internet).

Sounds good, even if it is very much in the nature of a preliminary skirmish, not rising even to the level of 'battle', let alone war.

 
Oh, fabulous. Region-coding extends its reach.

Via Copyfight, this story from the Washington Post, on the rise of region-coding of consumer devices. We've all known for a long time about the region-coding of DVDs, and Sony Playstation Games (you know, you buy a DVD in the US; it won't play in your Australian player unless you have it fitted with a device which may or may not be illegal depending on what the High Court ends up saying in the Stevens v Sony case, to be heard this year). The region-coding thing became a particularly notorious part of the discussion that followed the conclusion of the Australia-US free trade agreement.

Apparently, region-coding (of one technical kind or another) is being applied to a whole lot of other stuff too - including computers, and printer cartridges.

The printer cartridge thing is particularly ironic, isn't it. The "printer cartridge case" (otherwise known as the Lexmark case) is one of the notorious DMCA cases over in the United States. In that case, Lexmark was using technology to ensure people only used 'genuine' Lexmark cartridges in their printers. Lexmark sued a company which was providing chips that other printer cartridge manufacturers could use so that their cartridges would be accepted by Lexmark printers. Lexmark lost. The case is described in this Wired story.

So in this more recent news, it appears that we have the marriage of two DMCA horror stories. (although note, the region coding of a lot of the consumer devices would probably not be a DMCA issue - not under Australian current law (because our law requires some relationship with infringement of copyright) and not under US law as interpreted in Lexmark) - it would, however, be a consumer protection/possible competition legal issue).

 
Creative Commons Australia license is being launched today in Brisbane

Yay! well done to Brian Fitzgerald, Ian Oi and all the others.

 
Ed Felten on DRM

Ed Felten has a story today on a use of 'DRM' on a copyright work (ie, a Report) which seems solely designed to frustrate fair use...

 
The wonderful world of patent holding (patent leech?) companies

I blogged in December, here, about patents, and particularly software patents, mentioning the Becker/Posner blog discussion of patents, and the Jason Schultz piece in Salon.

Now, Ed Felten has his views on patent holding companies (those companies that hold patents but do not manufacture, instead charging royalties for use of patented technology). Patent holding type companies were Schultz's biggest complaint in his article.

Felten's views are, as usual, interesting, pointing out that it may be appropriate division of labour: inventors can invent, and patent holding companies can develop expertise in licensing technologies. I think he would absolutely be right if we could be sure that patents were of good quality. And his policy suggestion is spot on: let's make sure that the process is optimised for the issue of patents of an optimal level of quality, and apply the same rule to all patents.

 
Patents and Open Source

The New York Time are reporting that IBM has come out with a new policy on software patents. They are making 500 of their software patents freely available to anyone working on open-source projects. This is:

• significant because IBM are a HUGE patent owner - the biggest grantee of patents in 2004 (with 3,248 MORE than their nearest rival);
• of potentially reduced significance because it is 500 software patents they are offering for free is only a small proportion of their 40,000 world wide patents ...

But yay for IBM anyway. It kind of makes sense given the investments IBM has been making into open source. But it helps, and it adds to the assurances already given by Novell that Novell will use their patents to defend open source.

 
Trade Mark Judgment

OK, I'm getting back into trade marks land, since I teach it this semester. I read this morning this judgment, Health World Limited v Shin-Sun Australia Pty Ltd [2005] FCA 5. It's about the registration of a trade mark "HEALTHPLUS", opposed by someone who is using "Inner Health" and "Inner Health Plus" as a common law mark. What I don't quite get is why this isn't unregistrable as a result of s 41 of the Trade Marks Act, which requires that a mark be 'inherently distinctive'?

 
The usual new year predictions are out

Ed Felten's predictions for 2005 are here. A couple are worth commenting on a little:

1. DRM being seen increasingly as a security/privacy risk. Which reminds me, there's an interesting article by Nic Suzor on SSRN on the relationship between privacy and copyright, particularly as it has come out in the Australian cases recently.
   Actually, it also gets me thinking: I hope this particular prediction really does come true. Because Australia, in the next little while, will be drafting its new anti-circumvention laws. The greater the awareness of these privacy and security issues, the more capacity government is likely to have to make sure the laws aren't too unbalanced in favour of copyright owners.
   
2. As blogs continue to grow in prominence, we'll see consolidation in the blog world. This is a fairly risk-free prediction. Blogs are hard to maintain as a solo act, and there are benefits from consolidation, although costs too, no doubt (what do you do when your blog partner starts to dominate, and you don't agree with everything...?). My prediction would be a slightly different one: we'll see more existing prominent people take up blogging, and since blogs rest very signficantly for their audience on the prestige of the bloggers, the 'barriers to entry' will increase - it will more and more become the case that you need to either (a) have been around a long time, (b) be really prominent, or (c) be an amazingly good blogger (/writer).
   
3. The Supreme Court's Grokster decision won't provide us with a broad, clear rule for evaluating future innovations, so the ball will be back in Congress's court. Of course, an equivalent prediction can be made for Australia: the first instance decision of Wilcox J in the Kazaa litigation is unlikely to provide a clear rule or satisfy anyone, so there will be an appeal, and every (copyright) man and his dog will have a view. If KaZaA are liable, few will have sympathy for Kazaa itself but every technology producer in this space will have legitimate cause for concern, no matter how the rule ends up being formulated. And we'll look increasingly like the most copyright-protective country around, if we hold Kazaa liable while Grokster gets off in the US. If Kazaa are not liable, the law will look like a bit of an ass, and the matter will go to Parliament. And if Kazaa are a "bit" liable, so that the court tries to force them to re-design, things could get really weird.
   
4. Copyright issues will be stalemated in Congress: unlikely to happen here, given the dominance of a single party of both houses of Parliament. Of course, you have to wonder how much more legislation could go through, after the very significant amounts that went through last year....
   
5. There will be no real progress on the spam, spyware, and desktop security problems. Sigh.
   
6. DRM technology will still fail to prevent widespread infringement. Yup.
   
7. New P2P systems will marry swarming distribution (as in BitTorrent) with distributed indexing (as in Kazaa et al). Copyright owners will resort to active technical measures to try to corrupt the systems' indices. That could get really ugly. But given the doubtful legality of corrupting other people's software or computers, wouldn't the better solution be to start more law suits against individuals?

 
This is just great news: LAMS goes great guns

And it gives me a chance to mention, in passing, something fantastic - the Baker & McKenzie Cyberspace Law and Policy Centre conference on Unlocking IP, last November, where I first saw someone from LAMS present. Exactly the kind of thing that will show what open content and open source licensing can do...