Category Archives: copyright

This Week on The Web 2009-08-30

The things that happened around the web this week – maybe you already read about them, maybe you need to again.

I also realized that many of you might have no idea what you’re seeing below.  Sorry.  These are “tweets”, 140 maximum character messages sent via Twitter.  Within the Twitterverse individual users follow others and have followers (think of it like overlapping Venn diagram circles).  To read a tweet, you have to wade through a bit of jargon used to make the most of the 140 character limitation.  “RT” for example, is shorthand for “Re-tweet” and the @____ is the username of some other individual on Twitter.  Combined together, then, “RT @_____” means that someone else wrote a tweet that I found important and I now want to forward along to my followers.  The URL’s are then also shortened by shortening services like bit.ly to make the most of the character limitation, too.  Lastly, you might see “hash” identifiers “#______” which are ways to tag tweets of a particular flavor for easy searching later.

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My Lego Love is Fast Fading

I’ve loved Lego since I was a little kid.  I haven’t really counted, but I’m guessing I still have (in large crates in my garage) somewhere around 300+ Lego sets of varying size.  There’s something about allowing your creativity to roam that really interests me.  And as a company, the Lego Group has also been of keen interest from an intellectual property perspective ever since they started becoming sticklers about calling Lego blocks “Lego Bricks and Toys”.  But I think they’ve crossed the line recently with a “rejection” preventing the mock-rock group Spinal Tap from including a Lego-brick-based stop-motion video on their latest DVD.

I use the word rejection in quotes in the prior sentence because I don’t think that the Lego Group had any rights on which to make their claim.  Per the article, Lego Group claimed copyright over the figures themselves (known in Lego parlance as a “minifig”) whereas Spinal Tap’s IP lawyer clearly states that they weren’t intending to show the Lego Group’s logo or use the word Lego anywhere in the DVD.  Copyright protects written and visual works embodied in a tangible medium of expression.  So I’m trying to figure out how the Lego Group thinks that they have a copyright over the minifigs themselves.  I just don’t see it.  Even from a search at the US Copyright Office, what I see are a slew of Lego registrations over the various books, stories, videogames and logos.  I also see one deemed a “sculpture”, which I can only assume is a large version of one of the Lego minifig.  But then the copyright would only cover that sculpture itself – not necessarily every little conceivable permutation of Lego minifig made possible by the myriad tops, bottoms, heads, hair and accessories available.

But even assuming that Lego holds a copyright in the general design of a Lego minifig, would the use for this DVD not qualify as fair use?  I’m not sure it would – it’s parody, but not of Lego… it’s for profit… it “takes” the entire work.  OK.  Fair use is out.  (Which blows Spinal Tap’s attorney’s idea away, too.)

So if the minifig IS registered, yet is distributed 4 billion times (per their company profile)… without any kind of licensing document attached to it… by a company that zealously protects its intellectual property rights… leads me to believe that even the Lego Group knows that they’re on shaky ground.  [Interestingly enough, their company profile also tells the story about the company receiving a patent for their “Lego System” in 1958 – which would have long since expired.  In the US, usually (but not always), intellectual property is protected by only one type of protection.  You don’t get to gain a copyright after your patents run out.  Either it’s a tangible, useful good… or it’s a work of art.]

All in all, I think Spinal Tap gave up WAAAAAAYYYY too early on this one.  What’s next?  Do recording artists need the permission of their guitar manufacturers (which, btw, are covered by copyright by some designers) to play their guitars in their videos?  Of course not.  The guitar manufacturer still holds copyright – but they gave UP the right to restrict where it was played in order to sell the guitar.  Same is true for the Lego Group.

Anyone else wanna’ weigh in on this?

This Week on The Web 2009-08-16

The things that happened around the web this week – maybe you already read about them, maybe you need to again:

Cnet author advocates theft

I’m simply stunned by a recent article written by Cnet columnist Rafe Needleman.

In his post, he blatently advocates buying “lesser” versions of Microsoft products to take advantages of the discounts available to certain classes of users, regardless of whether you actually fall into that user class.  His cavalier attitude towards the vendor (telling his readers that Microsoft probably doesn’t check up on usage) and the user (suggesting that users who pay the appropriate price for their user class are “suckers”) is abhorent and I’m frankly disappointed that the editors at Cnet allowed this garbage to see daylight.

I’ve responded twice in the comments (as “negot8or” if you care to read them… once on page 1 and again on page 2).  The general gist of my response is that if you don’t like the pricing for a particular product, don’t buy it.  Vote with your pocketbook.  Vendors who don’t sell enough software will either drop their price or drop out of the market.  But buying something you’re not licensed to use and using it anyways is a form of theft (“software piracy” if you will).  Software has historically been sold on the basis of end-user value.  It’s the right of the vendor to charge whatever they want.  Stealing, in any form, isn’t justified because there exists a cheaper price somewhere else – or for someone other than you.

As much as I advocate for better software licensing terms and more transparency from vendors, I do not believe in taking what isn’t yours.  I hope you agree.

Amazon’s Orwellian Behavior

As many are reporting, Amazon.com “recalled” an e-book remotely in response to a request by a publisher.  This is all kinds of scary and most folks are centered on the purely tangible nature of the problem.  I’m also concerned about the precent it sets, but I’m more concerned about the sapping of intellectual property rights that seems to be yet unexplored by these articles.

When you buy a book, you’re actually completing two transactions.  You’re purchasing the paper – the tangible product.  But you’re also buying a copy of the story itself – the intellectual property.  Each of these has distinct legal implications and over the years, laws have been developed to help protect not only the customer/consumer, but also the author and publisher.  The physical aspect protecting the consumer is that you have the ability to change your mind about your purchase (ie: you can return the book assuming you don’t damage it and that the transaction wasn’t noted as “all sales final” (though this isn’t an absolute bar to return)).  Retailers are likewise allowed to return what is returned to them – they have even more flexible return policies with their distributors.  And, as we’ve seen in the prior articles, folks are in an uproar about the idea that a retailer would come to your house to automatically take-back things you’ve purchased simply because their distributors wanted them to do so.

The other transaction – the one for the intellectual property – is much more interesting (IMHO).

Copyright is the protection most books are afforded.  When you buy a book, you have the right to read the story, burn/destroy the book, talk about the story with anyone, and heck, you can even resell the book (this is all part of what is known as the “first sale doctrine”.  What you can’t do is make copies of the book.  If you sell it to someone else, you can’t keep a copy for yourself, too (this is the issue with software, music, movies, etc being “shared” online).  But short of sale, the ownership in the copy is yours.  Therefore, it’s my argument that Amazon.com’s behavior amounts to theft – both of the tangible item AND the intellectual property.

The usual problem with pursuing this claim is that a service provider is smart enough to make device owners agree to some form of Terms of Service.  I would’ve thought that the Kindle ToS would have even been so bold as to allow Amazon an unrestricted right to do what they did.  But it doesn’t (Amazon Kindle ToS as of 2/9/2009):

Use of Digital Content. Upon your payment of the applicable fees set by Amazon, Amazon grants you the non-exclusive right to keep a permanent copy of the applicable Digital Content and to view, use, and display such Digital Content an unlimited number of times, solely on the Device or as authorized by Amazon as part of the Service and solely for your personal, non-commercial use. Digital Content will be deemed licensed to you by Amazon under this Agreement unless otherwise expressly provided by Amazon. [Emphasis added.]

I have other problems with this document, of course (such as the restrictions on resale).  But on its surface, Amazon grants a perpetual license to the purchased content.  So through their behavior, following their own Terms of Service, they’re in breach.  But we won’t hear about any suits as the ToS restricts claims to confidential arbitration and limits damages to the price of the device.

For its part, Amazon says that “We are changing our systems so that in the future we will not remove books from customers’ devices in these circumstances.”

[Update:  Amazon’s Herdener (the source of the above quote) actually said more:

These books were added to our catalog using our self-service platform by a third-party who did not have the rights to the books. When we were notified of this by the rights holder, we removed the illegal copies from our systems and from customers’ devices, and refunded customers. We are changing our systems so that in the future we will not remove books from customers’ devices in these circumstances.

This doesn’t really change anything.  Even if an unauthorized party sells you something they don’t own, so long as you don’t know that the item wasn’t theirs to sell, you retain ownership as a “bonafide purchaser.”  I’m glad to see that Amazon won’t remove books in the future, seeing that they weren’t supposed to do it in the first place.]

License Resale

Vinnie Mirchandani at deal architect pointed out a Ray Wang article on the resale of unused licenses.  My thoughts are in the comments on Ray’s article.  But generally speaking, regardless of what Ray suggests, you can’t do it in the US (or the rest of the Berne Convention countries) under most licenses which have express prohibitions against it (you can almost always contract away your rights).

And, even if you could, your organization probably doesn’t have tracking enough to make it possible – just remember that if you overuse your permitted license count, chances are there’s another provision in your license that allows the vendor to charge you (perhaps at non-discounted pricing) for the overage.

What I DO like about Ray’s suggestion is that idea that you should try to negotiate for a recapture of maintenance fees on unused licenses.  If you can’t resell them, the least you can do is take an annual count and only pay maintenance on the ones you’re using.  There is, of course, trouble with this thought, too – as there are some vendors that used to allow this (the last one I remember was Autodesk).  But the trouble is that you can get into a situation where you only upgrade SOME of your licenses to the current version because not all of them are currently covered by maintenance and the upgrades provided under such program.