Archive for October, 2006

Home Stitching and Copyright

Saturday, October 28th, 2006

Perhaps the most underreported area of copyright infringement in the last decade has been in the home craft and stitching community. The needlepointers have made wholesale, unauthorized copies of patterns; the garment and accessory (patterns which in the ’60′s we paid handsomely to meet our home economics and merit badge requirements) bespoke community have made unauthorized copies galore; and now we have a case involving those plastic cards that we pop into our high tech modern sewing machines.

The Eighth Circuit recently affirmed summary judgement for the craft store that was renting the plastic, memory cards from which the sewing machine takes the direction for producing the embroidery designs. Action Tapes, Inc. V. Mattson (Nos. 05-3309m 05-3520 (8th Cir. Aug 30, 2006).)

The plaintiff, Action Tapes, failed to register the computer software and the requisite source code in the Copyright Office under the 1990 Computer Software Rental Amendments Act.

This, a case of first impression, gives a good map of where the next software embroidery designs plaintiff needs to go to succeed next time.

“Ringtones” those invasive noises commercial?

Saturday, October 28th, 2006

Those sounds that rudely invade movies, lectures, sermons and other public quiet spaces have a more clinical name: ‘digital phonorecord deliveries’ (DPDs) and now we know that ringtones may be subject to the compulsory licensing under Section 115 of the Copyright Act. A ringtone is a ‘snippet’ of music lasting 10 to 30 seconds, often taken from a larger work.

The Copyright Office, in a 35 page ruling held, that ringtones warrant payment for using a ‘snippet’ of the larger piece of music:

“We find that ringtones (including monophonic and polyphonic ringtones, as well as mastertones) are phonorecords and the delivery of such by wire or wireless technology meets the definition of DPD set forth in the Copyright Act. However, there are a variety of different types of ringtones ranging from those that are simple excerpts taken from a larger musical work to ones that include additional material and may be considered original musical works in and of themselves. Ringtones that are merely excerpts of a preexisting sound
recording fall squarely within the scope of the statutory license, whereas those that contain additional material may actually be considered original derivative works and therefore outside the scope of the Section 115 license.8 Moreover, we decide that a ringtone is made and distributed for private use even though some consumers may purchase them for the purpose of identifying themselves in public. We also conclude that if a newly created ringtone is considered
a derivative work, and the work has been first distributed with the authorization of the copyright owner, then any person may use the statutory license to make and distribute the musical work in the ringtone. For those ringtones that are covered by Section 115 of the Copyright Act, all of the rights, conditions, and requirements in the Act would apply. For those ringtones that fall outside the scope of Section 115, the rights at issue must be acquired through voluntary licenses.”

The ruling can be found at the Copyright Office web page:

This ruling is especially interesting when the Google Print Library Project is relying upon a fair use “snippets” defense to legitimize Google’s wholesale, unauthorized copying of works in copyright. If a snippet of music is subject to compulsory copyright licensing, how could a snippet of text be otherwise?

UK Recommendations on DRM

Friday, October 27th, 2006

Digital Rights Management (DRM) is the focus of the the United Kingdom’s “All Party Parliamentary Internet Group” (APIG); and, these are the questions addressed:

1. Does DRM distort traditional trade-offs in copyright law?
2. Do new types of ‘content sharing licenses’ need legislation to be effective?
3. How should consumers be protected when DRM systems are discontinued?
4. What legal protections should DRM systems have from those who wish to circumvent them?
5. What role does the UK Parliament have in influencing the global agenda regarding DRM?

After many meetings and some testimony from interested stakeholders and consumers, the APIG acknowledged that the issues and answers to the questions had eluded easy answer in the complicated technical and ‘hugely fascinating’ area. The following, while not answers, are the APIG recommendations:

A. There should be wider ranging exceptions to the anticircumvention prohibition than presently are on offer;

B. Labeling should be mandatory to mitigate the current consumer confusion around what is permitted and prohibited in their using the digital content that they purchase.

C. Vigilence and care will be needed to preserve the ‘single market’ aspirations when confronted with the differential pricing of DRM.

D. The strong position that the government NOT make DRM mandatory.

French DigiCriminals Try to Confess

Friday, October 27th, 2006

No Halloween prank was it when three Parisian residents marched first across the Latin Quarter handing out leaflets in which they confess copyright crimes; and then they, and their entourage of 40 waving banner, marched into the Paris police station where they efforted to turn themselves into the highest ranking on-duty officer.

News of their confession campaign had preceded them; and, almost as many armed riot police stood waiting with the forty plus confessees. It was a slow process with some of these foot soldiers in the DRM Resistance offering to confess to by-standers in lieu of the senior officer’s ear. One carried a sandwich board which read ” I LENT MUSIC TO A FRIEND”, and another called out “Not only did I not use an iPod to listen to an iTune, but I also transferred a first run movie to a hand held device, and I am willing to suffer the consequences.”

This demonstation was a protest against the Digital Rights Management (DRM) policies that are creeping into the use of legally purchased songs and videos and in favor of the recent French law which is intended to force compatiblity among all listening and viewing platforms.

Nestle’s AquaPod Ads Leave Parents All Wet

Friday, October 20th, 2006


In July of 2006, Nestle Waters North America, launched a campaign directed at kids for its new AquaPod waters, specially shaped water bottles designed to promote water-drinking among teens. Included in the campaign were commercials that featured children not obeying their parents and characterizing the parents as “nags.” According to CARU, the self-regulatory agency that requested Nestle remove the ads from the website, one parent wrote “I strongly object to this kind of advertising, which undermines my role and responsibilities as a parent to instill values and a work ethic in my children.”

Nestle agreed to remove the troublesome ads by the end of September.

It now appears that parents are characterized as Zombies on the site. That’s much better.

Internet as Network? Goo-Tube is Leading the Pack

Friday, October 20th, 2006

The advent of the DVR has turned those hard-earned advertising dollars into mush as target customers easily zip past commercials to get to their favorite shows. And while YouTube, GoogleVideo, and other easy-upload sites have been hosting bootlegged-and-previously televised commercials since their inception, only recently has the advertising industry stopped using their legal muscle to take down these rogue postings and adopted a if-you-can’t-beat-’em-join-’em attitude.

Indeed, actually getting consumers to affirmatively seek out commercials seems to be the new craze. And it’s working. In fact, many companies, like Burger King, are using YouTube and other social networking sites, to launch full-scale campaigns. The grainy, slightly do-it-yourself style of the ads is actually adding to their appeal. In some cases, it’s unclear whether the ads are corporate sponsored or created by individuals, another attractive component for the Gen-X-Zers whose mantra seems to be “don’t hard-sell me.”

This ad recently appeared on YouTube, to the delight of consumers. The controversy it sparked is only adding to the commercial’s viewership. Moreover, Smirnoff likely didn’t have to make a million-plus ad buy as it would have for television.

If your spidey senses are tingling because you’re wondering about alcohol beverage control laws, misleading advertising claims, CARU challenges and the like, stay tuned. Ad law is getting interesting again.