"Current Issues" Series Going Monthly

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I have already made this decision over at OpenSourcePlayground.org, but for the next two months my posts here will be monthly. Between running Netizen Empowerment Federation, midterms and applying for summer fellowships, there is just too much going on right now.

I still think Brian is planning on bringing some posts this semester. We shall see.

In the mean time, Tom and I will still be releasing weekly and in March we are doing some experimental shows, so be sure to give us lots of feedback on whether you like the new format!

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Top 10 Things You Should Do/Know When Negotiating a License (Part 2 of 2 instead of Week 6 of Current Issues)

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As Tom and I have mentioned several times on the main show, if you release your music under Creative Commons, you can always license your work to someone else under a non-CC license. For example, if you release under BY-SA, you can contract with a film producer for them to use your music without the film producer having the release under BY-SA (which they would have to normally do under the ShareAlike provision, aka SA).

1. If at all possible, get a lawyer.

While not technically a member of the attorney guild just yet, you're right to be skeptical of my intentions here. It is, however, the most important of these suggestions. There are a lot of reasons why getting an attorney is important, but I'll give you two of the most important.

First, if the lawyer screws up, you an sue them for malpractice. If you screw up the contract yourself, sue yourself. Let me know how that goes.

Second, the laws are different in different jurisdictions. Copyright might be federal in the US, but occasionally there are circuit splits. You may very well know the New York contract and copyright interpretations, but if the film maker is in California, it's possible California law might apply.

2. Define everything.

Certain words have specific meanings in copyright and contract law, but if you're negotiating on behalf of yourself, you probably don't know those meanings. If you force the other side to get all of the meanings in the contract, at least you aren't being left in the dark about the meaning.

3. Assume you will be going to court later.

While writing things down can have some positives aside from just having something to hand a judge, if you have no intention of ever suing anyone, there's not much reason to spend time negotiating a contract. Just license your work under the WTFPL or CC0 and save everybody the hassle.

4. Don't act like you know what you are doing.

This mostly applies if the other side as a lawyer. Courts generally do not look kindly upon lawyers taking advantage of lay people. It's true that this presupposes that you're going to be in court later, but see #3. If a lawyer knows you don't know contract law, they will have to explain things to you. This is very important. If you do not understand the contract, there is no contract. A contract is a meeting of the minds and if you don't understand, there is no meeting of the minds. It's true that you would have to prove in court that you didn't understand, but if you didn't, this probably won't be hard. If you acted like you knew what you were doing, there is going to be a ton of evidence against you.

5. Assume the worst.

In most cases, the lawyer on the other side is going to be happy you are doing this. Lawyers are by nature pessimistic creatures. Licenses are all about damage control. If you assume the worst, you'll hammer out all the details while negotiating and you'll avoid court later on. But see #3.

6. Understand that most oral contracts are enforceable.

There are plenty of exceptions, like real estate contracts, but most oral contracts are enforceable. If you agree to something on the phone, don't expect to weasel out of it. That said, proving there was an oral contract is often hard.

7. Write it down.

This might be obvious, but you don't want to get in a he-said, she-said battle in court.

8. Make sure the other party knows you license under CC.

For one thing, if you've licensed under CC, you won't be able to give an exclusive license. Now, you might be able to do some things exclusive. For example, you could contract away the right to further sub-license. Again using the example of the film maker where you've released under BY-SA. You could specify that you would not license another film maker for proprietary use. What you could not do is say that your song will never appear in another film, because BY-SA films would still be allowed.

9. Don't forget about trademarks and trade secrets.

If a film maker is licensing your music, it's unlikely that you'll be potentially revealing any trade secrets. If the film is a documentary though, particularly one where certain individuals are portrayed in a negative light, they may not want you telling anybody about that. While this is really their issue and not your issue, just because the other person doesn't have a case doesn't mean you won't get a threatening letter. Additionally, if you violate their community norms, they may lambaste you which could tarnish your career if it's a popular film maker. If you are coming from a community, like CC, that values sharing, you might not think of this. Just be aware that if you are dealing with a non-CC film maker, they may not feel the same about sharing as you.

10. Ask for help.

Help is available from organizations like Volunteer Lawyers for the Arts. They don't appear to have affiliates in all 50 states, but many states and a few countries have affiliates. If you are in a state that doesn't have a VLA, ask me and I'll see if I can help you find someone.

It's true I probably could have folded this into #1. However, you are always supposed to start and end strong, and I really cannot emphasize how complicated the law is. This is why you should choose CC if you haven't already!

Remember, contract law is different in different parts of the USA and of course in different parts of the world, so see #1!

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Got Questions? (Part 1 of 2 instead of Current Issues Week 6)

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For the time being, I'm skipping Week 5. I'll come back to it. Part 2 should be out shortly, but I figured Part 1 and Part 2 were different enough to deserve two posts.

In this post, we'll take care of some housekeeping for my Copyright Licensing course so you have some sense of things you might want me to cover in the future.

This week in my Current Issues in International IP course we are talking about drug patents. I didn't really think I could spin that for the music world (though as always, if there is an outcry for the topic, I can do a post on my personal blog or try to make it music-related), so I thought I would bring you an update on what is going on in my Copyright Licensing course. Unlike all of my courses last semester, and all of my other courses this semester, this is a 2-credit course rather than a 3-credit course. I give you this information so you can compare the depth of material to that of the substantive copyright course information Brian and I brought you last semester.


The Creative Commons licenses are of course copyright licenses, or more specifically, public copyright licenses. Unfortunately, this is not the type of copyright license we have focused on in class. We have focused on negotiations. It's a good skill to have, so I'm not regretting taking the class. It's just unfortunate that I'll need to do an independent study to learn more about public licenses. I've discussed doing that. More on that when it is final.

You aren't here to read about my course selection though, are you? We're about halfway through the semester, but if you have questions you'd like me to answer, here is a list of what we have covered so far and what we will cover in the rest of the course:

Basic Copyright Licensing Principles, including: (a) “Assignments” vs. “Licenses”; (b) Exclusive vs. Non-Exclusive Licenses; (c) Works for Hire & Independent Contractors

The Anatomy of a License: Basic Licensing Provisions & Drafting Language

The Anatomy of a License (Part 2); In-Class Exercise #1 Part 1 (initial discussion)

In-Class Exercise #1 Part 2: Redraft & Review

Getting the Deal Through (Part 1): from Term Sheet to Final Agreement (a “walk through” an actual scenario from initial client meeting to final agreement)

Getting the Deal Through (Part 2): the License (a “walk through” the final license from Week 8)

The Statutory Copyright Licensing Scheme: How it Works (an overview of the compulsory licensing schemes under the US Copyright Act)

Licensing in the Music Industry (review of a typical music licensing arrangement)

In-Class Exercise #2 Part 1: Team-Based Negotiation & Initial Drafting

In-Class Exercise #2 Part 2: Final Draft & Discussion

Final Team Exercise #1

Final Team Exercise #2

So, what have I learned in six weeks of class? Probably more than I can express in words. We have primarily been going over a couple of contracts and discussing them. We have also been practicing our negotiation skills. If anyone wants me to post my sparse verbatim notes from the class, I certainly can. For now though, stay tuned for Part 2, which will be a Top 10 list. People love top 10 lists, right?

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Current Issues: Week 4 - Domain Names

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For those of you following along, you'll notice that I skipped Week 3. This is because for Week 3 I started working on an Introduction to Trademarks rather than the science oriented topic that we discussed in Week 3. Considering we are only three weeks into class, I just didn't feel prepared to write the article. It will come out at some point though. Now, on to this week's topic...

This week is a reasonably special week in the current issues course for two reasons:
1. I was one of the two leads for the week.
2. Our guest speaker was a UNH professor (this will happen twice during the semester. Even more to the point, it is the professor that teaches this very class. So, not really a guest speaker. The Seattle prof that teaches the other half of the class has already given her talk.

I think this is going to happen a lot in the class, but as I mentioned in the education talk, these topics are just not in the wheelhouse of many of the students. We spent much of our hour-long Tuesday discussion talking about background issues, rather than the issue at hand, which was ostensibly trademarks in domain names. This is not really a criticism of the class. forming the appropriate prerequisites for the course would be impossible. I just point out that it is incumbent upon students in the class to pick topics for which they are best suited.

Even though in a room of techies my specialty is certainly not going to be high-level Internet routing (perhaps lnxwalt will give his opinion in a follow-up article on Open Source Playground), I think I did a good job picking this topic. For example, I brought up that recently the UN tried to take over the Internet. Considering this is a "current issues" course, I thought it important to do so, rather than get stuck in the trademark morass.

To an extent, the ITU take-over is old news because it just didn't pass, but I think this is an issue likely to come up in the future and thus worth thinking about. Whether you think this is a good idea or not mostly depends on if you trust western governments over a joint east-west partnership. While I don't agree with western governments on everything, I do think they have it right on the Internet. I think ceding more power to Russia and China in the Internet space would be a bad thing. China already seems to do a reasonable job censoring the Internet.

Another reoccurring theme in the course, at least as it relates to the Lawcast, which was not a problem last semester,  is the question of what it has to do with music.

The answer really is that no one really knows because no one really knows how all of these new gTLDs is going to work. However, we can think about some potential issues and advantages for Creative Commons music.

.music TLD

Interestingly, .music apparently already exists (or existed in the past?). However, it appears that if it once existed, maybe it doesn't anymore (or is just for sale)? Anyway, it seems clear that it is up for sale in some sense. CNN lists 8 different bidders for the .music tld. None of them are the Far Further group that rt.com reported is bidding for the tld though. While the rt.com article has a date from this past summer, I can't find one on the CNN list. As anticipated, the page information says the CNN page was last modified when I accessed it. Thanks.

The potential problem for .music is admittedly very tinfoil-haty. If a major label gets .music and it becomes the standard, how will Creative Commons music compete? There are obviously a lot of objections to this critique. What is to say SoundCloud, Jamendo, BandCamp, Free Music Archive and other places where people can now find CC music will move over? What is their incentive to move over? The follow-up question is whether they are competing on equal footing now. How much, if at all, does this change things? Does the fact that they might set apart in some way increase their cool factor?

Equally impossible to answer is the possible benefits CC music could reap from this. Let's imagine that whomever gets .music licenses out the sites at a reasonable price. Let's say Jamendo either moves or has a mirror jamendo.music. The benefit here is that people know they are getting music before even poking around on the Jamendo site. Sites like www.musicmanumit.com and freemusicarchive.org don't really see a benefit because music is in the name.

.creativecommons TLD

There is currently no application for registration of .creativecommons, but what if someone other than the organization we know as CC decided to buy the mark? At 15 char*, I'm not sure there should be much concern for this, but it really highlights the problem at which Professor Wong is getting.

If Creative Commons were bought and used by a traditional copyright licensing organization, where you pay to play, it might change the discourse around CC like the Linux kernel did around GNU. Some individuals still fight for GNU/Linux, but it is a genie long out of the bottle. The term "open source" has a similar problem with people using "open source" to mean freeware, because, obviously, they don't know what "source" is (presumably because they have never seen computer code).

The upside might be more positive here. For one, it's a half-million** dollar publicity stunt if nothing else. I doubt this is the best use of half a million dollars if CC can get their hands on it, but pet projects often get money. Would Mark Cuban have donated half a mil to the EFF without their new Defend Innovation project? So someone with a penchant for the dramatic, not unlike Mark Cuban, would just need to think this was a good way to make a splash.

I'm certainly not arguing that it is the best use of the money, but let's assume for a moment that this happens. One of the problems people currently have is finding Creative Commons music. Obviously you can go to Jamendo or Free Music Archive and find some, but there are also a ton of netlabels out there such as Quote Unquote Records and StoneAge Records that don't participate in those ecosystems.

Even if we do come up with a .creativecommons to make us one big, happy family, where do we draw the line? Free Music Archive isn't just CC, it also has their own license. Even at Music Manumit, we occasionally, play public domain or Art Libre material.

These sorts of decisions about how .music or .creativecommons might work are really outside the realm of law. That does not, however, mean we shouldn't think about them. Either way, it's an exciting world ahead of us!

On Thursday I'll get the opportunity to speak with Professor Wong again about the issue, so if you think there are questions, I should ask her, please let me know!




*Although there are some long ones, like NORTHWESTERNMUTUAL, which comes in at 18 char. I'm just not convinced people really want to type that much in. I guess if all they have to type is .northwesternmutual, then perhaps. It actually potentially saves char in this case. My point is simply that the longer it is, the less likely you are to bump into someone else.

** While the fee is $185k, ICANN also looks at the ability to run a network and the cost needed to prove to ICANN you can do that has been estimated at between $.5 and $1 mil.

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Current Issues: Week 2 - Access to Knowledge

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Luckily, this week our materials are publicly accessible via Public Interest Intellectual Property Advisors (PIIPA).  Specifically, we read Chapter 6: Copyright and capability for education: An approach ‘from below’ by Margaret Chon.

Many of these topics are ones we'll address later in the semester, in class, if not on the blog, so I give you the chapter list so you can let me know if I should target any of the topics for an article:

1. Intellectual property through the lens of human development, by Tzen Wong (doc) (pdf)
2. Intellectual property and medicine: Towards global health equity, by Claudia Chamas, Ben Prickril and Joshua D. Sarnoff (doc) (pdf)
3. Food security and intellectual property rights: Finding the linkages, by Hans Morten Haugen, Manuel Ruiz Muller and Savita Mullapudi Narasimhan (doc) (pdf)
4. Trends and scenarios in the legal protection of traditional knowledge, by Charles McManis and Yolanda Terán (doc) (pdf)
5. Traditional cultural expressions: Preservation and innovation, by Tzen Wong and Claudia Fernandini (doc) (pdf)
6. Copyright and capability for education: An approach ‘from below’, by Margaret Chon (doc) (pdf)
7. Knowledge and education: Pro-access implications of new technologies, by Dalindyebo Shabalala (doc) (pdf)
8. Cultural diversity and the arts: Contemporary challenges for copyright law, by Tzen Wong, Molly Torsen and Claudia Fernandini (doc) (pdf)
9. Scenario planning on the future of intellectual property: Literature review and implications for human development, by Michael A. Gollin, Gwen Hinzeand Tzen Wong (doc) (pdf)

Long-time readers will immediately see a connection between what they are doing at PIIPA and Music Manumit. However, I remain skeptical of IP law changes changing things for rural locations. I'm not opposed to liberalization of the laws, but I am skeptical as to how much it will matter.


For example, Laos will become a member of the WTO on February 2nd. Laos acceded to the Berne Convention on March 14, 2012. In theory then, before IP started encroaching on the Lao people, education should have been fantastic. However, according to 2007 data, Laos ranked 139 in education. 

I don't purport to be a Laotian scholar and maybe this is a global anomaly, but education in the US, with a uniform copyright law (if not contract law), is vastly different from state to state. There are a million different ways to measure education, and I don't want to get into the details here. I just want to point out that different situations probably call for different solutions. Perhaps copyright reform is part of a solution everywhere, but pinning our hope on copyright reform, when people don't have access to the Internet, seems flawed. Let's get them access to all of the information on the web. Then we can worry about things like whether Google Translate is a copyright violation.

Another thing I'd like to point out is that maybe the rankings are skewed toward Western ideals. Looking at the 2011 HDI report, which has replaced the Education Index, Japan, if you can call them non-Western, is the first non-Western country on the list at #12. The first more truly non-Western country is U.A.E. at 30, but having been to U.A.E., I can say it doesn't seem like the type of anti-woman place that is the general depiction of the Middle East (this statement of course implies the West is not anti-women, which is an arguable point - perhaps a matter of degree, not kind).

The point here is not to single out methodological problems with the UN's studies. There's already plenty of criticism out there. My point is simply to take the education rankings and the HDI rankings with a grain of salt when thinking about how to improve education. 

Questions

As I mentioned last week, we get an opportunity to ask the speakers questions and I asked Professor Chon about the rural/urban divide. She essentially agreed with me. She went on to say, and I'm paraphrasing, "Rural individuals in the US might have more in common with rural individuals in other countries than the urban people of the US." (Actually, I don't remember if she said "might", but I'll hedge on her behalf.)

How we get people in urban areas to care about those in rural areas is a project beyond my pay grade, which, incidentally, is zero. (you can help fix this by the links on the botton of the post!) In fact, that's an issue beyond IP law and an issue with which much of the class was deeply troubled. I think partially we in the class are troubled by our ignorance. Literally no one in the class has a background in international law.

Some of the other questions were as follows:
How do you advocate for an increased focus on IP in Human Development OVER other needs?
Who pays for it all?
What incentives can copyright law provide for broader access to educational materials?
Is there a One-size-fits all solution to International IP?

Higher Education

Now, I do find the proposal as applied to higher education to be intriguing. Those in higher education are by definition the elite at some level. About 30% of USicans have a associates degree or higher. We could probe the numbers a bit more, but for our purposes here, we can think of the educated as the elite at some level. Certainly one assumes that in 2013 those in higher education are going to have access to the Internet. What an Internet without copyright restrictions could mean to those in cities is near-on limitless. Individuals would still need to worry about patent and trademark protections, but access to the libraries of Harvard, NYU, Oxford, etc. is certain to help those in Johannesburg think of solutions to solve their countries' problems. Access to information about building efficient water distribution, efficient network infrastructure and efficient transportation. There has to still be the political will to impliment the infrastructure, but at least then academics and activists will be armed with the data needed to convince the law makers. People in the poor countries sides are worried about surviving, not lobbying. I'm all for the poor banding together and using their numbers as power, but it's just not the political reality in most of the world.

Music Education

Let's step back for just a second. You might be thinking, "Why are we talking about education and education levels on a music law policy blog?" To a certain extent, that's the same question the students in class are asking. We are not educators (though I did write my master's thesis on higher education). Most of the people in the class are future patent attorneys (either agents or litigators).

But, what does this mean for music education? We're going to come back to music education again in Week 5 (assuming they don't change the schedule on us again), but aside from happiness, I'm not sure what music really gives people as far as a tool. However, there are a lot of unhappy people in the world, and many of those people are in Africa. This is true on a number of studies. So, I say, have at it. And, if you're an artist and want to make the world a happier place, consider releasing your work under a Creative Commons license. Not only will it make me happy, it will allow those in Africa and other poor countries to enjoy your music free from the most stringent copyright restrictions.

Further Research

Professor Chon primarily focuses on copyright for textbooks, but for those interested in education, it might be worth thinking about how trademarks and patents might interfere with education. Unfortunately, at the moment I don't have time to research these topics. However, as always, if this is a topic that interests you, please let me know and I can do further research.

More Information

If you want to learn more about music education, check out the interview Tom and I did with my father.  If you want to know more about online music education, check out the interview Tom and I did with a music theory teacher at P2PU.org.

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Current Issues: Week 1 - Introduction to International IP

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Welcome to Doug's section of the Spring 2013 Lawcast! Today I want to give you some perspective on how the semester will go and very briefly discuss what we covered last week in class.

Some of the class topics I've decided for the time-being are probably not topics best suited for this blog. If people want particular topics, please let me know and I'll make sure and include them.

In-class topics for the rest of the semester include:
Week 2: Copyright: Access to Knowledge
Week 3: Patent: Access to Marine Energy Resources
Week 4: ICANN
Week 5: Product Development PPPs
Week 6: Foreign Rights Holders
Week 7: Trademark: Access to Grey Market Goods
Week 8: Traditional Knowledge
Week 9: Agricultural, Biotech and Genetic Resources
Week 10: ACTA, SOPA, PIPA, TPP
Week 11: Trademark: GIs and Development
Week 12: Patent: Access to Medicines
Week 13: Review and finish up papers

It seems we'll always get a chance to ask the speakers a question, so if any topics interest you, make sure you tell me what questions you'd like me to ask. Again, the patent stuff I am not going to write about here and probably not at Open Source Playground either because it's not going to be software related.

This week met with Professor Daniel Gervais of Vanderbilt University to discuss an introduction to international IP. International law is a weird beast. We generally think of governments imposing laws on its citizenry (or someone that is less jaded might think citizens voice their social norms through laws in a less). If you murder someone, the case in the US will be named State vs. Individual, The People vs. Individual or something of that nature. However, in the international context only states are involved. The US can bring an action against China (or visa versa), but an individual has no recourse to the WTO or WIPO. (There are other international organizations, such as the WHO, but WTO and WIPO are the two big ones in IP.)

This is not to say that cross-border litigation does not occur. It certainly does. However, aside from the broadest norms of allowing foreign nationals to bring suit, the suits are going to be apply local or national law. This is a simplistic view of things, particularly when it comes to things such as maritime law or the CISG, but for present purposes it will probably serve us well-enough. Unfortunately, without getting into the gory details, I think that is about as far as we can go. I think this framework will serve us well going through the rest of the semester.

Lastly, I wanted to give everyone a heads up that Brian has told me that he has been working on finishing up the posts from last semester and that he'll be bringing you articles about copyright and trademark registration this semester. Now that the Colts are out of the playoffs, he'll have a lot more free time! As a Baltimorian, I am supposed to hate the Colts, but mostly I hate the NFL! :)



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Why Fair Use Is Important

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Issue: Should plaintiff's bear the burden of rebutting fair use in their case in chief?

I'd like to start by saying I hope any readers have had a great Thanksgiving and I'm sorry its been so long seen I posted, the holidays can be hectic, especially if you have law school finals.

I believe fair use is the most important aspect of American Copyright law because it is really meant to achieve the purpose of copyright law which is to promote the progress of science and the useful arts. Which is not to say that other aspects of copyright law do not promote science and the useful arts but fair use is an important balance to the economic incentives given to copyright holders and the right of others to communicate freely.

Doug posed an interesting thesis that rebutting fair use should be an aspect of a prima facie case for copyright infringement. I disagree mostly for procedural reasons. Lawsuits start with a plaintiff filing a complaint and then the defendant filing an answer. Then there can be a motion for a judgment on the pleading if it is clear that no real case exists. (or in some rare debt collection cases I believe a plaintiff can win on judgment on the pleadings.) Requiring plaintiffs to rebut a case for fair use in their pleading before discovery would frustrate the doctrine of fair use because fair use is a fact intensive doctrine. Judges need to have a strong grasp on all relevant facts in order to determine whether a use is fair or not. Forcing plaintiffs to allege that fair use is not possible before the plaintiffs have had an opportunity to go through discovery would result in good cases being thrown out because plaintiffs' attorney were unable to obtain all the facts through the procedural process.

As to whether the plaintiff should bear a greater burden to rebut a defense of fair use at trial is an irrelevant issue. The Doctrine of fair use is a four factor balancing test. If a defendant raises the defense in the defendant's answer, then at trial the defendant will argue for the factors they believe favor fair use and the plaintiffs argue for the factors they believe will rebut fair use. Essentially I don't think a shift in the burden would do much unless Doug is arguing to change from the balancing test to something else entirely different. I just do not see the need for change because fair use adequately balances copyright owners economic incentives with everyone's first amendment right to free speech.