We've written about the Wiley v. Kirtsaeng case many times already, but it's an important one to follow. While everything else in DC closed down to bunker down for Hurricane Sandy, the Supreme Court Justices decided to soldier on and actually hear the case today. Joe Mullin has written up the most thorough and detailed examination of the case, including the fact that Kirsaeng is merely the first, and most well-known case brought by copyright holders trying to stop them from reselling legally purchased works made outside the US. Copyright holders love the fact that Kirtsaeng is the central case here, because he earned a lot of money -- so they can argue that he's somehow "unfairly" profiting from international arbitrage. But, as Mullin notes, lawsuits have been brought against many others who were selling a lot less.

Copyright holders keep trying to downplay the "horror story" scenarios that many of us worried about a ruling in favor of Wiley could lead to. However, if the Supreme Court says that it's copyright infringement to sell a copyright-covered work made outside the US, but legally imported in, you can bet that all sorts of companies will seek to take advantage of this fact. We've already talked about the predecessor case here, Omega v. Costco, in which merely putting a copyright image that no one would see on the back of a watch could open up the ability to block resale of physical products. While Omega eventually got smacked down in the lower court, that was for copyright misuse -- the first sale issue stuck. So, all companies need to do is slightly modify the way they use copyright, and they can ban your ability to resell products.

If you believe in basic property rights, this should freak you out. It's kind of funny to see the MPAA and RIAA -- who like to pretend they're in favor of property rights -- right upfront in arguing against it here.

While it's pretty rare to see "activism" around a Supreme Court case, the folks at Demand Progress have put together a campaign called You've Been Owned to speak out about this. While that won't impact the Supreme Court, they're right that this issue is going to matter in Congress eventually. Whichever side loses this case is going to run to Congress with pre-written legislation to "fix" the Court's ruling. If you believe that you should own what you bought -- even if it's made in a foreign country -- then this is a case to pay attention to, and to be ready to speak out about when the inevitable legislative "fix" is introduced.

Earlier this week, we talked about how publishing giant Random House had very explicitly stated that when libraries buy their ebooks, the libraries "own" those ebooks, rather than license them. They left no doubt about it. Skip Dye, Random House's VP of library & academic marketing and sales was explict: "when libraries buy their RH, Inc. ebooks from authorized library wholesalers, it is our position that they own them... this purchase constitutes ownership of the book by the library. It is not a license."

This raised some questions, such was whether this was true of everyone else who purchased Random House ebooks. Peter Brantley asked a bunch of questions and finally got Dye on the phone for a discussion, where he learned that when Random House says "own," they mean "not own." In fact, at best, when they say "own" they mean "if you fit into this limited category, you have the right to move your ebooks from one approved platform to another approved platform." This is, contrary to Dye's claim, a license. It is not ownership.

As many surmised, the key phrase in Random House’s communications is “authorized library wholesalers.” In the context of the LJ article, Random House was using a definition of “ownership” that you won’t find in Webster’s dictionary, conveying rights where none exist. In fact, Random will not sell directly to libraries or library consortia, although Mr. Dye reiterated that they continue to evaluate many alternative library business models. RH’s approach in the library market is to vet potential library market distributors for auditing, accounting, security, and other business functions, and then permit libraries to acquire titles from that short list of approved bureaus. In Random’s view, libraries “own” the titles they purchase to the extent that they should be able to migrate their ebook catalogs from one platform, such as Overdrive, to another, such as 3M.

That’s very nice. It’s just not ownership. It’s licensing, with benefits. Library customers of RH titles do not have the ability to transfer their titles to an unapproved platform, such as Califa or Open Library; they cannot resell or donate their ebooks; and there is no mechanism for libraries to receive ebook donations directly from consumers. All that libraries “purchase” from Random House is a verbal commitment to assist libraries in moving their Random House ebooks from one approved commercial platform to another. This is the kind of “perpetual license” that academic libraries have traded for ownership. Academic libraries now employ licensing specialists, and see the world through the lens of contracts. In consequence, faculty have begun to develop open access models that revolutionize scholarly communication from within.

In other words, Random House's claims were a load of bull. That's not surprising, but still disappointing. Brantley goes on to say what kind of ownership should be allowed for libraries when it comes to ebooks:

Public libraries seek a different kind of ownership – the kind that appears in the dictionary. The Internet Archive, Douglas County Libraries, Califa, and a growing number of other library systems are running their own ebook platforms, providing their own auditing, accounting, and security. We want to keep ebooks in our communities, run our own services, safeguard the privacy of our users, and be free from overreaching licensing regimes that threaten our services. And increasingly, we are finding publishers who are willing to sell to us directly, seeing the benefits of handing management of digital titles to libraries. Libraries can market e-books to the people that want them, and gather usage statistics in a privacy-protecting manner to help inform other libraries – as well as publishers – about what titles are popular, and where. These are rights and responsibilities that publicly funded libraries should not hand over to commercial distributors that must navigate between the Scylla of publishers and the Charybdis of Amazon. Readers First is an example of the larger movement articulating libraries’ desire to re-forge a partnership between publishers and libraries.

Of course, I'd also argue that this goes way beyond just libraries. Users want to own their own ebooks as well, just like they own physical books. That means they don't want to worry about having the company they bought their books from suddenly lock them out of their collection for reasons they won't explain. It means they want to be able to move those ebooks from platform to platform without permission. It means they want to be able to lend those ebooks to a friend. Some smaller publishers get this, provide DRM free ebooks, and make it easy for this to happen. Random House, on the other hand, doesn't seem to understand the issue at all.

We've discussed, many, many times, how copyright holders in the digital age like to play fast and loose with the definition of what is "sold" and what is "licensed." Just today, we've seen Amazon wipe out a woman's ebook collection. As we've joked, many copyright holders like to play Schrodinger's download in which they'll argue that it's a license in some cases, and a sale in other, based on what benefits them the most at that instance. So it's a welcome surprise to find out that publishing giant Random House is unequivocal in making the statement that libraries who buy Random House ebooks own those ebooks. Michael Kelley, at the Library Journal, spoke to Skip Dye, Random House's VP of library & academic marketing and sales, and Dye left no doubt about it:

"We spend a lot of time discussing this with librarians, at conferences and elsewhere, and it’s clear that there is still some confusion out there around whether libraries own their ebooks," Dye said. "Random House's often repeated, and always consistent position is this: when libraries buy their RH, Inc. ebooks from authorized library wholesalers, it is our position that they own them."

He went on to make clear the distinction with licensing:

"This is our business model: we sell copies of our ebooks to an approved list of library wholesalers, and those wholesalers are supposed to resell them to libraries. In our view, this purchase constitutes ownership of the book by the library. It is not a license."

Of course, this raises a question: does that also apply to the public? It would seem inconsistent if it were just for libraries. If I buy a Random House ebook, do I "own" it, or have I licensed it? And... then how does that fit with various ebook retailers, such as Amazon, whose terms seem more like a license? Either way, it's good to see a company like Random House take such a clear position on this matter, when most big copyright holders prefer to avoid the question entirely.

As Universal Music Group (UMG) continues dealing with antitrust questions as it tries to close its purchase of EMI, there's a lot of focus on "divestment," or which parts of the combined entity that would have to be sold off. There's even talk of having to sell off the famed Parlophone Records label (home of Coldplay and Radiohead). That would be a big deal, of course, but an even more interesting proposal has been brought up by the Featured Artists Coalition, a UK-based coalition of musicians, who are saying that if the company has to divest, why not let the artists themselves have the opportunity to buy back their copyrights at "fair market value."

Divestments in the wake of mergers should first offer copyrights, at market rates, to the artists who created them. To sell them to other corporations, whether large or small, is just a perpetuation of an old business model, which has seen the recorded music business halve in value over 10 years. During that time, the technological revolution has displaced the old music business players. We do not need to repeat the mistakes of the past.

It would be good to have music business people rather than financiers owning and running music companies again. It would be even better to have artists owning their work and entering into partner relationships with service-providing major and independent record companies with all the finance and expertise an artist needs to develop their own business.

That letter is signed by Ed O'Brien of Radiohead and Nick Mason of Pink Floyd. Of course, I imagine that the labels and the artists might disagree about what "market rates" are. Also, given how focused the labels are on fighting copyright termination in the US (allowing artists to take back their copyrights after 35 years), you have to imagine that they'd fight any such plan equally hard. It's no surprise why, though: if the artists who could afford to buy back their rights did so, that would take away many of the "big name" acts, which are pretty much the remaining money makers under the old system. There's no way the labels would agree to this, even if it certainly puts the artists' interests first. Yet another example of how labels' and artists' interests are not aligned at all.

If you look at the history of copyright law, it's really a never-ending story of the law adjusting (often quite awkwardly) to deal with changes in technology that the law never predicted and wasn't prepared to handle. We see this manifest itself in many different ways today, including the whole question of "ownership" in a digital age. When you "buy" a digital video or song, did you really buy it? Or did you just license it? Because copyright law doesn't handle this well, we have a sort of Schrodinger's cat situation, in which companies claim it's either a license or a sale depending on who's suing whom. In other words, it's a complete mess.

Entering the fray with a unique idea as an attempt to solve that, some folks (and a company who likely seeks to commercially benefit from this idea) are trying to convince the Copyright Office to create a new consumer ownership registration system, dubbed "circle section" after the character they'd like to use for it:
Unfortunately, they're marketing it like lawyers, rather than marketers, so there's a lot of verbiage surrounding the description everywhere they talk about it, but the basic idea is pretty straightforward (if I understand it correctly):

If you buy something digital, you can "register" your ownership right in that particular copy, which then would grant you basic ownership rights, including rights to format shift the content and to resell it under first sale rights.

The folks behind this project have set up a Change.org petition in support of this, where they're seeking 200,000 signatures, though, currently they have very, very few (again, perhaps an issue of being lawyers, not marketers). Separately, they've chosen an odd strategy for pushing this effort: filing a petition with the Copyright Office as a part of the process by which the Copyright Office comes down from the mountain every three years and declares which products can ignore the DMCA's anti-circumvention clause. Except... this project has nothing to do with that. So, the backers have filed a separate motion, in which they basically admit that this is outside the rules... but they're doing it this way because if the Copyright Office accepts the proposal, than the whole question of ignoring anti-circumvention issues becomes moot, because a registry of consumer ownership would make it pointless. Or something like that. You can read the full motion below.

This seems like an incredibly long shot no matter how you look at it, and I'm not sure that trying to jump into the magical anti-circumvention clearance debate is such a smart move here. That said, I can see how a proposal along these lines could be interesting as a possible way to deal with the question of whether or not you "own" the digital products you thought you bought. At the very least, I'd be interested in hearing what other people think about it. Personally, I wonder if it's really necessary, or if it would just become seen as another burden for users, needing to register and track their registrations.

The case of Paul Ceglia, the guy who claimed that Mark Zuckerberg signed a contract giving him at least half (and maybe up to 84%) of Facebook, keeps getting more ridiculous. As more and more details came out there was considerable evidence supporting Facebook's claim that the whole thing was attempted fraud. Ceglia, whose case got a big boost when legal giant DLA Piper decided to take it on... lost much of that credibility when they quickly dropped him. Since then, he's had difficulty keeping lawyers.

And, now, he's being accused of defying court orders and refusing to hand over the details of an email account he had with the username "GetZuck," which raises just a few credibility questions.

Ceglia's ongoing obstruction--in the face of repeated motions to compel--has prejudiced Defendants by denying them access to time-sensitive electronic material that this Court ordered Ceglia to disclose more than six months ago. Ceglia's attorney Dean Boland appears to have recognized as much. After learning that his client had failed to identify webmail accounts in yet another violation of this Court's Orders, he sent an email to Defendants' attorneys offering to provide signed consent forms for two of the four undisclosed accounts: landlubber39@yahoo.com and paulc@hush.com. He did not, however, mention or offer Ceglia's consent to the inspection of the alleganypellets@gmail.com or getzuck@gmail.com accounts.

The judge in the case has already ordered Ceglia to pay $76,000 in Facebook's legal fees, as well as sanctioned him to the tune of $5,000 for delays in making his emails available. I'm guessing even those who originally thought Ceglia had strong evidence to support his case have probably long since changed their minds...

Well, this one's bizarre. Back in March 2010 we wrote about the UK Usenet aggregator Newzbin being found liable for the copyright infringment of its users. A year later, the ISP BT was ordered to block access to Newzbin2, its successor. What amounted to the UK's first Internet censorship order was upheld soon afterwards.

That on its own would make the Newzbin saga noteworthy; but it turns out that there's an extra twist to the story -- involving the lawyer who represented the site:

Mr Harris, an intellectual property lawyer, used an anonymous account to post a series of insulting messages while defending a website which allowed users to download films illegally. It later transpired that Mr Harris, 52, owned the website.

During the trial he bragged online that “whoring and drinking” would begin at the end of the case and described an opposing lawyer as a “p----”.

As that notes, his interest in Newzbin was not purely professional -- he owned it:

He was forced to stand down eight days into the hearing when his link to the firm was discovered by opposing law firm Wiggins, which uncovered documents showing that all of the company’s shares were in his name.

Perhaps insulting his opponent was not such a clever move.

In the official record of the first trial, we find the following:

Mr Harris, instructed on a direct access basis, originally appeared on behalf of the defendant. On 10 February 2010, after the close of evidence, the defendant sought an adjournment in order to instruct solicitors and new counsel because it had become apparent that Mr Harris had acquired shares in the defendant and because he did not feel able to represent the defendant in the light of the way the case had developed and the evidence which had emerged. For the reasons which I gave in a short judgment on that day, I allowed that application. Kirwans Solicitors and Ms Lambert were instructed shortly thereafter and the trial resumed on 2 March 2010.

Harris's anonymous comments, and the fact that he failed to reveal his direct interest in the case, had one direct consequence: he was struck off (he now describes himself as an "ex-barrister" on the Twitter account he used to post the offending comments.) But it's possible his actions had even wider ramifications.

As the quotation from the court record above indicates, halfway through the case, Harris stepped down from defending Newzbin, and was replaced by another lawyer at short notice, Ms. Lambert. This meant she had relatively little time to research the case, which probably put her at a disadvantage compared to the opposing lawyer. Had she been working on it from the beginning, perhaps the Newzbin case and UK legal history would both have taken a very different turn.

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I've always been a bit baffled by No Photography signs in museums and art galleries. Presumably they exist to make the exhibits more exclusive and attractive, but that misses the point of why people visit museums: they want to see these things in person, which is a vastly different experience from simply knowing what they look like. Nobody has ever seen a photo of a dinosaur skeleton or Michelangelo's David and thought "oh good, now I don't need to go see that for real."

The other possibility is that the museums are concerned about photographers getting in the way of other patrons, but in that case an outright ban is overkill: people tend to be pretty considerate of each other when you allow social pressure to take its course, and a few "don't block this hallway" signs in key areas would probably suffice.

Either way, at least most such places only prohibit photography. BoingBoing recently highlighted this even-more-ridiculous notice found at the Art Institute of Chicago:

In case you can't see the image, it is a sign listing several things that are "NOT permitted" inside the exhibit: "Photography, Flashes, Tripods, Video Camera, Sketching."

For starters, items two through four seem rather unnecessary in the presence of item one. Are there photographers out there who, after being told they can't take pictures, set up their tripod and start snapping their flash just for fun? Has someone attempted to evade regulations by claiming that video cameras don't count as photography? Somehow I doubt it.

Then there's the concerning presence of "sketching" on the list. Sketching in galleries is a staple among artists, especially students, and it's impossible to see why anyone would want to ban it. A sketch of a painting or sculpture — even a masterful one that becomes a piece of artwork in its own right — is never going to serve as a replacement for the original. In fact, banning sketching is just going to make the exhibit less attractive to a gallery's biggest fans: artists. What purpose could such a ban possibly serve?

That's the problem with the ownership mentality of modern copyright: few people bother to think about purpose because they are too busy thinking about control, operating from a default "cover-all-our-bases" mentality without bothering to ask why. At some point during the drafting of this sign, somebody should have stopped and said "Wait, why do we care?" — but instead they said "Have we forgotten anything? Better throw tripods on there just to be safe."

Venkat Balasubramani has the story of a bizarre fight between a company, Sawabeh Information Services, and the founders of Edcomm, a company that Sawabeh bought in 2010. A few months later, the founders of Edcomm were fired, and the lawsuits commenced. There are a variety of issues here, and Venkat's post goes through most of them in detail, but I wanted to focus on just one: the fight over who gets to control Dr. Linda Eagle's LinkedIn account. Eagle was one of the founders of Edcomm and the key figure in this fight. Sawabeh claims that Eagle "misappropriated" her own LinkedIn account and the contacts associated with it, by continuing to use it after being fired.

While I can kind of understand some of the legal fights over who gets to control Twitter accounts, the entire point of a LinkedIn account is to represent an individual and their job history. How would it possibly make sense for a company to control an ex-employee's LinkedIn account?

The company seems to think that the LinkedIn account was more like a rolodex. Because (for reasons that are beyond me), Eagle had let others in the company access and manage her account, as soon as she was fired, people at the company accessed her account and then changed her "name" and profile picture to someone else at the company. That would be pretty shocking for her connections, who might not know who the guy was at all. They also tried to do this with the account of one of the other fired founders, but they didn't have his password. Apparently the company asked LinkedIn to hand over the password, and LinkedIn, properly, told the company to get lost.

Either way, the court digs into the "misappropriation" question with the LinkedIn account and refuses to dismiss it out of hand (at this stage of the case), which seems too bad. However, there's an unclear issue of who "developed" the contacts in the account:

The Counterclaim Complaint expressly alleges that, with respect to the LinkedIn account connections and content, "Edcomm personnel, not Dr. Eagle, developed and maintained all connections and much of the content on the LinkedIn Account, actions that were taken solely at Edcomm’s expense and exclusively for its own benefit." ... While Plaintiff argues that Edcomm fails to allege facts that would show that it made a substantial investment of time, effort, and money into creating the cell phone number or LinkedIn account, Edcomm counters that its employees developed the accounts and maintained the connections, which are the route through which Edcomm contacts instructors and specific personnel within its clients. As these conflicting allegations create an issue of fact requiring further discovery, the Court must deny the Motion for Judgment on the Pleadings as to the misappropriation counterclaim.

Of course, I wonder if they're arguing about the wrong thing here. If the company developed the contacts, perhaps it has a right to ask for a copy of the contacts, but the account itself seems like it should belong to Eagle. Part of the problem here is the idea that contacts are some scarce resource. Both parties can have them, and the simplest thing would be, if there is a legitimate claim that the company developed those relationships, to require that their contact info be provided to the company -- but leave the account in the hands of Eagle.

Either way, the case should be a warning for any company that wants to control the LinkedIn accounts of its employees.

With the proliferation of smartphones and other portable electronic devices such as tablet computers and e-readers, we are often left wondering, "Do we really own the books, games and other apps we pay money for?" Now that question has spread to your computer as well. PC World has revealed that Microsoft's terms of service for its Windows 8 app store gives it the right to not only disable but also remove apps Windows 8 device owners paid money to own. In Microsoft's own words:

In cases where your security is at risk, or where we're required to do so for legal reasons, you may not be able to run apps or access content that you previously acquired or purchased a license for.

This is probably nothing new to users of the Amazon Kindle who had their copies of the book 1984 remotely deleted or to people who bought music from Rhapsody who had their DRM'ed tracks reduced to nothing over night. Nor is this unique to these businesses. As PC World also notes, both Apple and Google retain the right to remove software users of their devices "bought". Businesses have been calling to question the ownership of digital products for quite some time. If we cannot prevent the loss of legally purchased products from those which sold these products to us, how can we really claim ownership?

If it is any consolation to you, Microsoft has told PC Mag that it will refund buyers of apps it deletes. However, any data you may have saved using the app will be completely lost. So not even the work that you put into this software is yours to claim ownership.

While Microsoft claims that it will primarily remove software in the case of security violations, it also retains this power for cases of "legal or contractual requirements." This is quite the broad opening left here. With the looming threat of increased enforcement of Copyright through SOPA and PIPA, the idea that an app can be removed via a "legal requirement" creates yet another question over ownership. If an app we purchase ends up infringing some company's copyright, patent or trademark, they could theoretically use that as a tool to remove that app from our devices.

We are moving further and further into a digital landscape for everything from movies, music, books, games and software. With this transition, companies that produce these products are working overtime to remind consumers that they are not owners of these products but merely licensees. We will not have the luxury of physical media on which we can claim ownership rights for much longer. Consumers for the last few years have been clamoring for more digital content. They have been the primary drivers of this transition. The only real question left is, do they realize the consequences that come with this change, and will they demand the right to claim ownership?