"A proposal by the Prince George’s County Board of Education to copyright work created by staff and students for school could mean..."

"... that a picture drawn by a first-grader, a lesson plan developed by a teacher or an app created by a teen would belong to the school system, not the individual."

Board Chair Verjeana M. Jacobs (District 5) said she and Vice Chair Carolyn M. Boston (District 6) attended an Apple presentation and learned how teachers can use apps to create new curricula. The proposal was designed to make it clear who owns teacher-developed curricula created while using apps on iPads that are school property, Jacobs said.

God forbid that teachers might become entrepreneurial about their creations and amass personal wealth. It's important to keep them inside the system, teaching their wards that the government needs to possess everything in order to ensure that no one gets more than her share.

"Confusion over sources or indifference to them can be a paradoxical strength..."

"... if we could tag the sources of all our knowledge, we would be overwhelmed with often irrelevant information," writes Oliver Sacks in an essay about memory.

Indifference to source allows us to assimilate what we read, what we are told, what others say and think and write and paint, as intensely and richly as if they were primary experiences. It allows us to see and hear with other eyes and ears, to enter into other minds, to assimilate the art and science and religion of the whole culture, to enter into and contribute to the common mind, the general commonwealth of knowledge. This sort of sharing and participation, this communion, would not be possible if all our knowledge, our memories, were tagged and identified, seen as private, exclusively ours. Memory is dialogic and arises not only from direct experience but from the intercourse of many minds.

"Prosecutor as bully."

Lawrence Lessig on the suicide of Aaron Swartz (which we've already been talking about here). Lessig was Swartz's friend and — for a time — his lawyer:

From the beginning, the government worked as hard as it could to characterize what Aaron did in the most extreme and absurd way. The “property” Aaron had “stolen,” we were told, was worth “millions of dollars” — with the hint, and then the suggestion, that his aim must have been to profit from his crime. But anyone who says that there is money to be made in a stash of ACADEMIC ARTICLES is either an idiot or a liar. It was clear what this was not, yet our government continued to push as if it had caught the 9/11 terrorists red-handed.

Aaron had literally done nothing in his life “to make money.” He was fortunate Reddit turned out as it did, but from his work building the RSS standard, to his work architecting Creative Commons, to his work liberating public records, to his work building a free public library, to his work supporting Change Congress/FixCongressFirst/Rootstrikers, and then Demand Progress, Aaron was always and only working for (at least his conception of) the public good....

Swartz faced a million-dollar trial, and he was out of money, "yet unable to appeal openly to us for the financial help he needed to fund his defense, at least without risking the ire of a district court judge."

Fifty years in jail, charges our government. Somehow, we need to get beyond the “I’m right so I’m right to nuke you” ethics that dominates our time. That begins with one word: Shame.

AND: From the NYT obit:

In 2008, he took on Pacer — or Public Access to Court Electronic Records, the repository for federal judicial documents. The database charges 10 cents a page for documents; activists like Carl Malamud, the founder of public.resource.org, have long argued that such documents should be free since they are produced at public expense....

Mr. Swartz recalled, “I had this vision of the feds crashing down the door, taking everything away.”...

He was scared, apparently, but he also joked and flaunted about his misdeeds:

 “Attention attractive people: Are you looking for someone respectable enough that they’ve been personally vetted by The New York Times, but has enough of a bad-boy streak that the vetting was because they ‘liberated’ millions of dollars of government documents? If so, look no further than page A14 of today’s New York Times.”...

The government chose not to prosecute that time. But Swartz moved on to the JSTOR matter, and United States attorney Carmen M. Ortiz said: “Stealing is stealing, whether you use a computer command or a crowbar, and whether you take documents, data or dollars.”

The obit links to Swartz's own blog post describing his depression (and other ills). That post is from 2007, before either the Pacer or the JSTOR incidents.

"Reddit, Creative Commons and Demand Progress co-founder Aaron Swartz committed suicide in New York City on Friday, Jan. 11."

"He was 26 years old."

Aaron Swartz was facing a potential sentence of dozens of years in prison for allegedly trying to make MIT academic journal articles public.... In September 2012, Aaron Swartz was charged with thirteen counts of felony hacking. In July 2011 Swartz was arrested for allegedly scraping 4 million MIT papers from the JSTOR online journal archive....

Swartz's subsequent struggle for money to offset legal fees to fight the Department of Justice and stay afloat was no secret....

Demand Progress — itself an organization focused on online campaigns dedicated to fighting for civil liberties, civil rights, and progressive government reform - compared The Justice Department's indictment of Swartz to "trying to put someone in jail for allegedly checking too many books out of the library."

Swartz's suicide came two days after JSTOR announced it is releasing "more than 4.5 million articles" to the public.

ADDED: Here's a podcast from a year ago in which Swartz discusses his activism stopping SOPA (the The Stop Online Piracy Act). The part with Swartz begins at 17:20.

AND: Here's Swartz's Wikipedia page. Picture:



ALSO: Cory Doctorow:

I met Aaron when he was 14 or 15.... Aaron accomplished some incredible things in his life... His stunts were breathtaking. At one point, he singlehandedly liberated 20 percent of US law. PACER, the system that gives Americans access to their own (public domain) case-law, charged a fee for each such access....

Somewhere in there, Aaron's recklessness put him right in harm's way. Aaron snuck into MIT and planted a laptop in a utility closet, used it to download a lot of journal articles (many in the public domain), and then snuck in and retrieved it. This sort of thing is pretty par for the course around MIT, and though Aaron wasn't an MIT student, he was a fixture in the Cambridge hacker scene, and associated with Harvard, and generally part of that gang, and Aaron hadn't done anything with the articles (yet), so it seemed likely that it would just fizzle out.

Instead, they threw the book at him. Even though MIT and JSTOR (the journal publisher) backed down, the prosecution kept on. I heard lots of theories: the feds who'd tried unsuccessfully to nail him for the PACER/RECAP stunt had a serious hate-on for him; the feds were chasing down all the Cambridge hackers who had any connection to Bradley Manning in the hopes of turning one of them, and other, less credible theories. A couple of lawyers close to the case told me that they thought Aaron would go to jail.

This morning, a lot of people are speculating that Aaron killed himself because he was worried about doing time.... But Aaron was also a person who'd had problems with depression for many years. He'd written about the subject publicly, and talked about it with his friends.

AND: I started a new post for the Lessig commentary.

"Your average Dylan fan could be excused for not knowing about a new European compilation called The Copyright Extension Collection Vol. 1."

"Only 100 of these four-CD sets even exist, and they've been shipped to a tiny number of stores located in Germany, France, Sweden, and Britain."

Though it collects Dylan's highly precious unreleased studio outtakes and live recordings from 1962 and 1963, Sony is putting almost no promotion behind the collection....

Although this no-promotion thing works as a kind of promotion, viral promotion. But apparently, this release isn't about selling product at all. It's about preserving copyright. After 50 years, if nothing is done with a recording, the European copyright would expire. By doing something — next to nothing — the copyright can be extended for another 20 years. So they put out a 4-CD set — only 100 of them.

Obviously, ultimately, this is a product that will be mass produced. But it's not what Dylan wants to put out now,  and it doesn't hurt business, in the long run, to have this enticing rarity out there getting people advance-excited over what is only 86 outtakes from the Times-They-Are-A-Changin' days.

"Instagram said today that it has the perpetual right to sell users' photographs without payment or notification..."

"... a dramatic policy shift that quickly sparked a public outcry."

The new intellectual property policy, which takes effect on January 16, comes three months after Facebook completed its acquisition of the popular photo-sharing site. Unless Instagram users delete their accounts before the January deadline, they cannot opt out.

Under the new policy, Facebook claims the perpetual right to license all public Instagram photos to companies or any other organization, including for advertising purposes, which would effectively transform the Web site into the world's largest stock photo agency.

Think the outcry is enough to change this? Facebook must monetize all that traffic it's acquired. Remember that Facebook paid a billion dollars for Instagram.

AND: May you ought to quit gramming because it's so annoying, as explained here:



"Look at this Instagram: eggs benedict, side of ham.... Drinking mai tais on a cruise/just a coincidence it's also boobs..."

"Psy Makes $8.1 Million By Ignoring Copyright Infringements Of Gangnam Style."

Okay, but $8.1 million isn't that much considering the magnitude of the success of the thing. On the other hand, it's the kind of thing that becomes successful in a system of virality. But that's not the other hand. That's the same hand.

It's that kind of thing. How much more of that kind of thing do you want?

IN THE COMMENTS: rhhardin says: "I'm not tuned in to it all, but I imagined that gangnam style meant wearing dyed cotton fabric."

Since Psy's not policing the copyright, feel free to make a goofy "Gingham Style" parody video. And since the copyright ran out long ago, here's the delightful Eugene Field poem "The Duel" — which, if you remember it, you might think is titled "The Gingham Dog and the Calico Cat":

The gingham dog and the calico cat
Side by side on the table sat;
'T was half-past twelve, and (what do you think!)
Nor one nor t' other had slept a wink!
The old Dutch clock and the Chinese plate
Appeared to know as sure as fate
There was going to be a terrible spat.
(I was n't there; I simply state
What was told to me by the Chinese plate!)

The gingham dog went "Bow-wow-wow!"
And the calico cat replied "Mee-ow!"
The air was littered, an hour or so,
With bits of gingham and calico,
While the old Dutch clock in the chimney-place
Up with its hands before its face,
For it always dreaded a family row!
(Now mind: I 'm only telling you
What the old Dutch clock declares is true!)

The Chinese plate looked very blue,
And wailed, "Oh, dear! what shall we do!"
But the gingham dog and the calico cat
Wallowed this way and tumbled that,
Employing every tooth and claw
In the awfullest way you ever saw---
And, oh! how the gingham and calico flew!
(Don't fancy I exaggerate---
I got my news from the Chinese plate!)

Next morning, where the two had sat
They found no trace of dog or cat;
And some folks think unto this day
That burglars stole that pair away!
But the truth about the cat and pup
Is this: they ate each other up!
Now what do you really think of that!
(The old Dutch clock it told me so,
And that is how I came to know.)

And here are many more of Field's "Poems of Childhood." (Try to find a copy with the Maxfield Parrish illustrations.) Did you memorize any of theses poems? I did! I had a beautiful Golden Book collection of children's poems when I was a child, and I memorized many of them, including this one. This was my favorite one. I often ended up reciting these poems around my parents. Even though they were the sort of people who didn't display how delighted they were by children's behavior, I realize now that they must have found these recitals adorable. I had no idea at the time. I just loved the poems and wanted others to hear them. That was virality, circa 1960. 

"Reading my testimony, anyone would get an idea that the person testifying is of a disordered mind."

Said Ira B. Arnstein, the crank, noodnik, and loser, who "for more than three decades he persistently sued the likes of Irving Berlin and Cole Porter, their publishers and their rights organizations for plagiarizing his own ditties."

[Judge Jerome] Frank went so far as to invoke Jonathan Swift and Friedrich Nietzsche in warning against creating a bad precedent "merely because we may think Arnstein is nutty."

The book reviewed at the link is "Unfair to Genius."

"Unfathomably, the programme notes for the Harry Potter author, who read from the opening of Peter Pan, declared her to be 'a great philanthropist, praised by the Government as a tax angel – one of the few who willingly pays her tax bill.'"

From the long, photo-filled Daily Mail article about last night's opening ceremony for the London Olympics.

Unfathomably? Oh, come on. It must be at least possible to fathom it!

The OED tells us that to fathom means "To encircle with extended arms." So: Can you get your arms around it? Can the government get its arms around you?

The opening ceremony also had a giant production number celebrating the National Health Service, replete with hundreds of dancing doctors and nurses in period costumes, and children in pjs bouncing on oversized hospital beds.

Socialized medicine will encircle you with its extended arms.

J.K. Rowling (the "Harry Potter" author) read from J.M. Barrie's "Peter Pan" — video — and we were told that Barrie donated the royalties from "Peter Pan" to GOSH (the Great Ormand Street Hospital).  We saw "GOSH" in big lights along with "NHS" in that production number.

(Wikipedia: "When the copyright originally expired at the end of 1987, 50 years after Barrie's death, the UK government granted the hospital a perpetual right to collect royalties for public performances, commercial publication, or other communications to the public of the work.... GOSH has been in legal disputes in the United States, where the copyright term is based on date of publication, putting the 1911 novel in the public domain, although the Hospital asserts that the 1928 version of the play is still under copyright in the U.S.")

Rowling tied it all together. Like Barrie, she's an author of children's literature. (The production number more generally celebrated Britain's children's literature, e.g., "Mary Poppins.") Like Barrie, Rowling represents giving up one's money to the greater good. Barrie voluntarily donated a specific flow of money — "Peter Pan" royalties — to a specific cause — a children's hospital. Rowling is just a very rich person who — visibly and graciously — submits to taxation.

This year's Forbes magazine rich list showed that Rowling "has dropped out of the world's exclusive billionaires' club as a result of Britain's high tax regime."

So, fathom that: The government has gotten its arms around her fortune.  Unlike the charitable giving of yore — exemplified by Barrie — the modern-day secular saint need only sit still for taxation, and the government will decide exactly where it goes. It's the way things are done now, and it's massively celebrated as part of the Olympics spectacle about what makes Great Britain so great. The spectacle notably took us through the phrases of history, and those wonderful children's authors have been giving children reading material and vast donations of wealth, in their own way and in their own time. And in our time, the government has an immense role.

***

"No man ought to graspe more then he can well fathome." Bp. J. Hall Horæ Vacivæ 71 (1646)(via OED).

After Obama's ad mocked Romney's singing, Romney responded with an ad that used Obama's singing "Let's Stay Together."

And now the ad is gone, due to a copyright claim. The campaign says "Our use was 100% proper, under fair use, and we plan to defend ourselves." I'm 95% sure that's correct. But:

1. "Let's Stay Together" is a beautiful, well-loved song that belongs to all of us, and we're all hurt if it is appropriated into a hostile, political context.

 2. A candidate who supports business and free enterprise should respect property, and it's Al Green's song. There's a legal limit to his property right in his song, and I don't think the Romney campaign overstepped that limit, but there's still a social space within which we might want to show respect for the owner. Think about how you feel about the public sidewalk in front of your house. Would you stand on the sidewalk outside somebody's house if you knew it was bothering them? I wouldn't. It's a matter of living together in harmony, beyond the call of legalities.

3. Obama is very attractive in his singing-like-Al-Green mode. Romney shouldn't even want to display that. It's Obama at his most likable. And he's been losing in the likability contest. Don't remind us why we've been liking the President... whether times are good or bad, happy or sad... oh! why do people break up...

IN THE COMMENTS: Paul Zrimsek said:

If you’ve got a hit song — you didn’t sing that. Somebody else made that happen.

"Copying Is Not Theft."

ADDED: Some analysis by a lawprof, Stuart P. Green:

The problem is that most people simply don’t buy the claim that illegally downloading a song or video from the Internet really is like stealing a car. According to a range of empirical studies, including one conducted by me and my social psychologist collaborator, Matthew Kugler, lay observers draw a sharp moral distinction between file sharing and genuine theft, even when the value of the property is the same....

[W]e should recognize that the criminal law is least effective — and least legitimate — when it is at odds with widely held moral intuitions.

... People who work hard to produce creative works are entitled to enjoy legal protection to reap the benefits of their labors. And if others want to enjoy those creative works, it’s reasonable to make them pay for the privilege. But framing illegal downloading as a form of stealing doesn’t, and probably never will, work. We would do better to consider a range of legal concepts that fit the problem more appropriately: concepts like unauthorized use, trespass, conversion and misappropriation.

That is, let's be realistic and honest about what we really think is morally wrong in this area and adapt the law to that. Obviously, our ideas about morality and intellectual property have shifted with the changing technology and — let's face it — our desire to justify what we've done and what we want to do. We're talking about statutory law, and this is a democracy, so we can have what we want. We just need to think rationally and long-term about what will give us what we want.

Here's Stuart P. Green's book, upon which the linked op-ed is based — "Thirteen Ways to Steal a Bicycle: Theft Law in the Information Age."

"The two versions of ['What What (In The Butt)'] are very similar.... However the South Park version stars Butters..."

"... a naïve nine-year old, in a variety of costumes drawing attention to his innocence: at various points he is dressed as a teddy bear, an astronaut and a daisy."

An excellent discussion of the elements of "fair use" in copyright, from the 7th Circuit, in a case called Brownmark Films v. Comedy Partners (PDF). Via Above The Law.

You can watch the original "paean to anal sex" — "featuring an adult male singing and dancing in tight pants" — here. And the South Park parody — using "a large portion of the original version, using the same angles, framing, dance moves and visual elements" — is here. From the opinion:

The Copyright Act of 1976 sets forth four, non-exclusive factors that a court must consider in determining whether a particular use of a copyrighted work is a fair use: “(1) the purpose and character of the use . . . ; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.” 17 U.S.C. § 107 (2006). We consider each factor in turn, ultimately agreeing with the district court’s analysis and findings.

Central to determining the purpose and character of a work is whether the new work merely supersedes the original work, or instead adds something new with a further purpose or of a different character....

Regarding the third factor, SPDS’s use of the original WWITB was not insubstantial. Certainly, SPDS used the “heart” of the work; the work’s overall design and distinctive visual elements.... Parody therefore “presents a difficult case.” Id. Indeed, it may even seem as an anomaly under fair use that parody, a favored use, must use a substantial amount of qualitative and quantitative elements to create the intended allusion; there are few alternatives. But when parody achieves its intended aim, the amount taken becomes reasonable when the parody does not serve as a market substitute for the work....

It follows from the third factor that SPDS’s parody cannot have an actionable effect on the potential market for or value of the original WWITB video under the fourth factor. As the South Park episode aptly points out, there is no “Internet money” for the video itself on YouTube, only advertising dollars that correlate with the number of views the video has had. It seems to this court that SPDS’s likely effect, ironically, would only increase ad revenue. Any effect on the derivative market for criticism is not protectable. Id. at 592. And the plaintiff has failed to give the district court or this court any concrete suggestion about potential evidence indicating that the South Park parody has cut into any real market (with real, non-Internet dollars) for derivative uses of the original WWITB video.

I'm not a copyright expert, but I think that's well analyzed. It's good to see parody getting room to breathe, and I think the original artist is better off after having this boost from South Park. His litigiousness makes him less likeable. I can see why he wants his cash, but I don't like copyright litigation as the way to monetize your YouTube videos.

The case also has some great material for civil procedure fans. The court says South Park should have "captioned" its motion as a motion for summary judgment rather than a motion to dismiss. The court notes the arguments about the fact that Butters is naïve and the lack of evidence on that score. The court says the Butters' naïveté isn't crucial to its analysis, but it nevertheless crafts a footnote pointing us to other South Park episodes establishing the naïveté of Butters:

See, e.g., Butters’ Very Own Episode (Comedy Central television broadcast Dec. 12, 2001) (perceiving sex as wrestling), see also Cartman Sucks (Comedy Central television broadcast Mar. 14, 2007); Stupid Spoiled Whore Video Playset (Comedy Central television broadcast Dec. 1, 2004). Indeed, in one of these episodes, Butters is dressed in the same teddy bear costume he wears in the WWITB video. Stupid Spoiled Whore Video Playset (Comedy Central television broadcast Dec. 1, 2004).

Reporter challenges State Department official to explain how the U.S. Constitution gives Jay Leno the right to make fun of religion.

State Dept. spokesperson Victoria Nuland is grilled about a Jay Leno joke that has offended Sikhs. Here's the joke, which targets Mitt Romney:



The joke-writers probably did a Google image search for something like "fancy palace" without realizing that the glorious image they retrieved depicted a site revered to the exclusion humor.

I love the way Nuland keeps a fully dignified straight face as she encounters the challenge from the Indian reporter:

VIDEO.

As I conlawprof, I find this line the most amusing:

"As India celebrates tomorrow the Constitution Day of India, I have the copy of the U.S. Constitution, and it doesn't say anywhere anything that anybody can say anything or abuse or accuse anybody's religion."

Much funnier than a Jay Leno joke.

I also think it's interesting that CNSNews — which conceives of itself as an antidote to liberal news bias — seems to fault Nuland for citing, in her response to the reporter's question about the U.S. Constitution, the "freedom of religion and tolerance for all religions" but not the Free Speech Clause of the First Amendment. Obviously, Jay Leno has a free-speech right to mock religion and to label the Golden Temple Mitt Romney's summer home. (Maybe Nuland fretted about whether Leno had violated the photographer's copyright.)

Should Nuland have boldly celebrated the American free-speech tradition or was it appropriately diplomatic to murmur assurances about respect for religion?

"With surprising candor, Chris Dodd tells Obama that the Hollywood purse strings are about to get tight."

A Metafilter post, linking to this Fox News piece, and continuing:

Angry over the Obama administration's siding against SOPA and PIPA, Dodd says openly that the money the Democratic party regularly counts on Hollywood for might not be there this election cycle. One view is that Hollywood considers that it bought something very specific with it's money, and it's angry it's not getting it. Should Obama be worried about this? Perhaps not. The guys from Freakanomics say that our assumption that money is the most important factor in deciding elections is a fallacy.

The 3d comment says:

We petition the Obama administration to: Investigate Chris Dodd and the MPAA for bribery after he publicly admited to bribing politicans to pass legislation.

(currently 7,312 signatures out of 25,000 needed for response)

It's up to 10,378 as I write this. Christopher Dodd has learned something in the last few weeks about how the internet works in a democracy. I suspect he's about to learn a whole lot more.

Urban Dictionary defines "SOPA."

"The shittiest piece of legislation the U.S. government ever came up with."

uhm, whats that internet thing again? is that what all the kiddies are stealing music with? we better fix that...

Or maybe they were thinking: People don't hate Congress enough. What can we do about that?

"The Day the LOLcats Died."

Congress has made me afraid to embed this, so I'll just link, which is scary too. Damn them!

(Via No Silence Here, via Instapundit.)

"A professor lost his long legal fight to keep thousands of foreign musical scores, books, and other copyrighted works in the public domain..."

"... when the U.S. Supreme Court ruled against him on Wednesday in a case that will affect scholars and artists around the country."

The scholar is Lawrence Golan, a music professor and conductor at the University of Denver. He argued that the U.S. Congress did not have the legal authority to remove works from the public domain. It did so in 1994, when the Congress changed U.S. copyright law to conform with an international copyright agreement. The new law reapplied copyright to millions of works that had long been free for anyone to use without permission.

It's really Congress's fault, but the Court might have saved us from this unpleasant legislative imposition. There were 2 dissenters, 2 of my favorite Supreme Court Justices, Stephen Breyer and Samuel Alito — one liberal and one conservative, which makes 2 seem like more than 2.

"Neither the Copyright and Patent Clause nor the First Amendment, we hold, makes the public domain, in any and all cases, a territory that works may never exit," declared the majority opinion, which was written by Justice Ruth Bader Ginsburg.

In a dissenting opinion, Justice Stephen G. Breyer, writing for himself and Justice Samuel A. Alito, faulted the Congressional action. "The fact that, by withdrawing material from the public domain, the statute inhibits an important pre-existing flow of information is sufficient, when combined with the other features of the statute that I have discussed, to convince me that the Copyright Clause, interpreted in the light of the First Amendment, does not authorize Congress to enact this statute," he wrote.

The case is Golan v. Holder. Here's the full text.

Those people who think Citizens United was wrong because it saw corporations as people with free speech rights...

... what do they think about Google's stand against SOPA? Google is a big old corporation with way too much money and power....

Young people today lack even the "ideological baggage" to concern themselves with copyright as they go about appropriating images.

"They feel that once an image goes into a shared digital space, it’s just there for them to change, to elaborate on, to add to, to improve, to do whatever they want with it. They don’t see this as a subversive act. They see the Internet as a collaborative community and everything on it as raw material."

Much more here — including the discussion of a case in federal court brought by a photographer whose images were worked into collages by a painter who made millions of dollars and an iPhone app that automates appropriation and collage.

"Once SOPA... became high-profile among the Internet community, the lazy endorsements from companies and various hangers-on became toxic."

"And now, those supporters are scrambling, hollowing out the actual support for the bill. Suddenly, a bill with ‘widespread’ corporate support doesn’t have much support at all."

ADDED: Here's a big list of who's supporting the bill (and who's opposing it).