Harry Potter and the Deathly Shallows of Copyright

Once again, Canada's Raincoast publishers who had the immensely good fortune to become the exclusive Canadian distributors of this legendary money maker are pushing the envelope of copyright far beyond any legal basis, according the the Globe and Mail.

According to the Globe, Raincoast's position is that:

"the legal framework in Canada recognizes and protects the confidentiality of the book and its content until the release date chosen by the author and the publishers as holders of the copyright, notwithstanding attempts at spoilers or other breaches of the embargo."

The Globe's lawyer, Peter Jacobsen says:

... that Raincoast's position "misstates the law." While copyright is protected under the law, the law "does not prevent comment ... for the purposes of review ... and news reporting," he said. "If someone were to obtain a copy of [Harry Potter and the Deathly Hallows] in a legitimate way, they can do any kind of review or discussion of it as they see fit, so long as it falls within the definition or criticism or review or news reporting."

Jacobsen said copyright law "restricts the amount you can quote," but he cautioned that Potter's publishers "attempt to misstate the law is a way to say there's kind of an injunction against revealing anything about [the book]."

Jacobsen is absolutely right and Raincoast is quite wrong.

Copyright law does not cover facts and anyone has the right to talk about a book, and to quote parts of it for purposes of criticism or review.

The issue of "spoilers" and giving away the ending is not a copyright issue - but rather a time honoured tradition amongst professional critics and, indeed, most decent ordinary people...

Let's not forget that copyright law - despite enormous efforts to the contrary and incrementally creeping inroads - doesn't yet include the exclusive right to read, talk about or think about things of interest and even importance....

HK

Counterfeit Kalashnikovs

It turns out that the Russians are shocked, shocked that one of their favourite brands and products is being knocked off in lots of places, and one of the main purchasers and distributors has been the USA, who, of course, believes in respect for IP.

We're talking Kalashnikov AK-47 machine guns, here. And the inventor is still alive.

Even General Kalashnikov himself is venting his dismay over proliferation without Russian profit. “I take them into my hands and, my goodness, the marks are foreign,” he said of the knockoffs the Soviet Union once championed. “Yes, they look alike. But as to reliability and durability — they do not meet the high standards of our military.”

Anyway, here's the whole ironic story in the NY Times. Maybe Canada's brave RCMP can go after these counterfeit death causing products.....consistent with their new zeal in enforcing antipiracy so that cute little girls don't die..... and so that the CACN will be happy....(Amazing, the resemblance of the content revealed by these two links).

Maybe the Russians should have respected IP sooner, and/or had better IP lawyers....

Then, the world might have been a better place ;-)

Given that the weapon has been around for 60 years (although it is constantly being improved), patent protection is out the question for the older versions, anyway. Mr. Kalashnikov himself says on a video on the NY Times site that "I am a child of the time when we didn't care about patents."

In Canada, oddly enough, the word "Kalashnikov" & Design was registered on November 30, 2006 as a trade-mark for vodka - another mainstay of the Russian export economy. The registration indicates that:

As per the applicant, the transliteration of the Russian characters is KALASHNIKOV. We have been advised that the word "KALASHNIKOV" has no meaning in English or French.

And oddly enough, there are two applications for "AK-47" & design for various beverages, including, oddly enough, vodka.

Anyway, back to machine guns. We must respect creators, as certain of my colleagues constantly remind the Government, the Courts, and the Copyright Board.

After all, we wouldn't want people being killed by counterfeit Kalashnikovs, would we? If we really respect IP, not to mention health and safety issues, they ought to be killed by the real thing....

More to come on counterfeiting in due course....

HK

Organized Crime and Organized Conflation for the Nation

In a glossy report entitled "Out of the Shadows" that ranges far and wide from drugs to tobacco smuggling to motorcycle gangs to human trafficking and to - you guessed it - intellectual property, the Ontario Association of Chiefs of Police has joined the bandwagon of conflating IP "crime" with all manner of organized evil. Our police chiefs copied (or was it fair dealing?) a good chunk of their material on IP from the Canadain Anti- Counterfeiting Coaltion ("CACN") FAQ, where it says:

How can I ensure that the product I’m buying is not counterfeit?

Some indicators to watch for include the price being much lower than average, spelling mistakes on the product or packaging, products that are normally sold in packages being sold individually, shoddy appearance of the product or package, or products (particularly electrical products) that have no name brand. In addition, if you buy products from a reputable retailer, there’s less chance they will be counterfeit.

I can't be bothered to do the side by side, since the police chiefs have made their presentation non cut-and-pastable. (Too bad for access to knowledge). It's at page 21 of their report.

And for a little melodrama - and the evident source of the police chief's wording, see this touching poster from the CACN of an adorable young child whose life is threatened by such things as a price being "much lower than average."

One GOOD thing about the police version of things is that they only say that counterfeiting is costing the Canadian economy a billion a year - a far cry from Ambassador Wilkins outrageous pronouncement of up to $30 billion.

The police chiefs are clearly concerned with organized crime. And rightly so.

But the risk of conflating "patent, trademark [sic] and copyright infringements" with all of the rest of the litanies of organized evil belies not only an organized IP lobby but some real dangers for public policy.

Could the legitimate, time honoured and competitive practice of parallel importation (which by definition involves perfectly legitimate and authentic goods) get mixed up in policy makers' minds with the counterfeiting issue? Parallel imports are often sold at a price "much lower than average", simply because they enter the country other than via the "exclusive" Canadian distributor, having been legitimately bought abroad at a more favourable wholesale price than the Canadian exclusive distributor is able or willing to offer. This very issue just happens to be pending before the Supreme Court of Canada.

Anway, it seems as if this campaign will never end. Talk about "organized"!

And a Parliamentary Committee has already credulously bought into this, hook, line and sinker, as Michael Geist has duly documented.

BTW, here's a fact. And I'm not inciting, counseling, or encouraging anything here. Counterfeit "Rolex" watches for $10.00 and lots of other counterfeit brand name goods at really cheap prices are still flagrantly available in New York City - much more flagrantly, I daresay, than in Toronto or Montreal, for example, in Canada. This is more than ironic because the source of virtually all of the organized pressure on Canada is the US Government and its own lobby of organized multinationals.

In any event, don't just take my word on the issue of over-criminalizing IP infringement. Two of the leading thinkers and scholars of our time or any time in IP - namely, Sir Hugh Laddie and Bill Patry - have recently weighted in. See Bill's recent blog here.


HK

Avril Update

Thanks to Gordon Duggan, leader of Appopriationart.ca for making me aware of reports of a lawsuit against iTunes involving Avril's allegedly infringing song. The source of the reports appears to the the sometimes reliable Appleinsider site, here.

What is clearly NOT reliable is the suggestion that the Plaintiffs "could alternately collect $150,000 for every infringement and skim interest on the pre-judgment financial award, potentially forcing a significant payout."

Much as I decry statutory damages, they don't work that way. The award is up to $150,000 in the USA per work and NOT per infringing copy and the Plaintiff has the burden of proving that the infringement was done "willfuly" to escalate to that high figure. One can be quite confident that iTunes did not "willfully" peddle an infringing work, assuming Avril's song is ever held to be infringing, which is far from certain.

HK

Big News From Belgium

Belgium seems to be a country that loves high levels of copyright protection. So much so that it has, apparently, mistakenly unilaterally ratified the 1996 WIPO Treaties by itself. Belgium, of course, is part of the EU and the EU and all its members will do this ensemble, if and when they do it at all - which is long overdue and not necessarily a fait accomplit - but that's another story.

Meanwhile, according to Dugie Standeford at IP-Watch, a Belgian Court has ordered an ISP to install filtering software to stop the P2P delivery of music whose copyright is in the repertoire of the Belgian Society of Authors, Composers and Publishers (SABAM). They are being ordered to use the Audible Magic system.

This raises a host of privacy, technical, legal, and political issues. The decision will likely be appealed. It will be interesting to see how civil law courts approaches this type of issue.

But what I mainly wonder is simply whether the Court's solution can even work. And what will be the collateral damage in terms of restriction of P2P activity that is legitimate by anybody's measure, not mention privacy and network efficiency?

EFF, of course, is always ahead of the curve and has already looked carefully at Audible Magic and doesn't believe that the Audible Magic system will even be effective and that it will be easily defeasible.

Wnether these efforts to defeat would constitute illegal circumvention remains to be seen. But experience shows that, as the legendary John Gilmore famously said, "The Net treats censorship as damage and routes around it."

HK

Avril Lavigne - alleged infringer

Being sued for copyright infringement can be interesting if you are big time.

Avril is - of course- a big time international star.

And she's being sued. Her song is called "Girlfriend" and it goes on and on about "I wanna be your Girlfriend". She's being sued by members an old 70' s band called the Rubinoos, who had a song called "I Wanna Be Your Boyfriend." The two songs are side by side here. The songs are far from identical - but beyond that I won’t comment. The litigation is in the USA - where almost anything can happen in the courts.

Terry McBride of Nettwerk Managment - Avril’s manager and a real hero and leader of the Canadian Indies who broke with CRIA last year - talks rather frankly about the litigation in Billboard, here. Perhaps more frankly than he should - but I'm not his copyright lawyer. And he didn't ask me. And he’s a pretty smart guy. Interestingly, another one of his big star acts, Chantal Keviazuk has also been accusing Avril of song theft - though she hasn't sued.

The interesting thing is that I just heard the Boyfriend song on some MOR station in some commercial space I was in today - and I expect both songs will do really well now. Girlfriend is #8 on the Billboard Hot 100 list and doing really well.

Even George Harrison lost a big copyright infringement case over My Sweet Lord. It didn't hurt his career one bit.

As long as it doesn’t involve outright plagiarism, getting sued for copyright infringement is not necessarily bad for a super star’s career.

So everyone could win here. And the Rubinos may come out of obscurity and hopefully get a prettier web site.

As they sometimes say in show biz, all publicity is good publicity.....

HK

Statutory Damages Suit Pants Suit Dismissed

In a relief to everyone everywhere except the plaintiff, Judge Roy J. Pearson, the $67 million lawsuit over the lost pair of suit pants was today dismissed by a Washington judge. Until the verdict comes in on Conrad Black and Paris Hilton gets out of jail, this could generate a brief window of interesting legal coverage in the USA. Hopefully, the immigrant victims of this monstrous abuse of the litigation system will get some redress by way of costs or otherwise.

Here's the judgment.

Here's an interview with the Defendant's lawyer.

Too bad there isn't sufficient main stream media coverage of the 20,000 plus other outrageous statutory damage law suits in the USA filed by the RIAA over allegedly illegal downloading and file sharing - where the harm done, if any, astronomically exceeds any provable actual damage to the record companies.

PS - reliable sources suggest that the RIAA may now have launched more than 30,000 suits...

HK

WIPO Broadcasting Treaty - "ends not with a bang but a wimper"

Apologies to T.S. Eliot.

It looks as if the WIPO Broadcasting Treaty will go to the more remote wards of WIPO for a while and maybe forever, potentially along with the once proposed data base treaty and other DNR projects in the WIPO annals. Reports indicate that the Chairman, Mr. Liedes, used heroic efforts to resuscitate this project and to reschedule a diplomatic conference for sometime in 2008 - but did not succeed.

The main objections - which were sufficient to block it - came from the Asian and African groups as well as Brazil and India. The EU and Japan expressed some support but did not fight hard to keep the dipcon alive and the USA and Canada apparently were silent - perhaps because there was no need to be explicit.

So maybe WIPO will move on to something more responsive to actual needs in the copyright world.

The next SCCR meeting in November or December of this year (which will be a regular meeting and not a special one devoted to this topic only) may deal with this issue - but other issues could be on the agenda as well. Issues such as limitations and exceptions or collective administration - both of which are very important at both the domestic and international level, and both of which lend themselves to possible treatment as a treaty.

If there is a need to stop signal theft in certain countries - and there very well may be - then perhaps the passage of time and a new approach could result in addressing that need specifically - but without conflating that particular problem with an open ended set of new exclusive rights that add additional layers, costs, TPMs and DRMs while detracting from fair use rights, access to knowledge and the public domain.

The document tabled today by the Chair actually tried to put webcasting BACK into the treaty on the agenda and for a dipcon next year. Whatever the strategy, it didn't work. This was too much even for the USA. There was no evident support for dealing with webcasting.

Apparently, numerous delegations restated that whatever is discussed in the future should be "signal based" - unlike the non-paper that went nowhere this week.

Details of the demise of the dipcon have started to emerge from the redoubtable Jamie Love of KEI (now available here) and will surely follow from the other NGO reps from EFF, IP-Justice, Public Knowledge, etc. who played a major role in this drama, in part by making it at least somewhat visible and transparent.

And, of course, the ever excellent IP-Watch was quick with a detailed posting by William New that includes comments from the Chair - likening this week's set back to a mere "cramp in the leg" in the course of a "marathon" and from Michael Keplinger, a Deputy Director General of WIPO and until recently a US official, who said “I think we have made tremendous progress..” As reported by Mr. New:

Keplinger, who came on board about six months ago, said there have only been six months of actual negotiations and that members are still learning about the subject. The previous 8 years were “discussions,” during which members were learning about the topic, he said.

I have a feeling that there will be some long term lessons to be learned from all of this by all concerned...

PS:

I'll keep updating this as details are confirmed and links are available - for example from the resourceful Petra at IP-Justice and Gwen at EFF.

HK

No WIPO Broadcating Treaty Dipcon "This Year"

After two days of essentially in camera meetings going late into the night in Geneva, the news is out that there will be no diplomatic conference on the proposed WIPO broadcasting treaty “this year.”

There were too many diverging opinions. The US, Canada, Switzerland, Brazil and India all opposed a dipcon this year. Of the major industrialized countries, apparently only Japan was clearly bullish on a dipcon at this time.

Is the treaty “dead”? Maybe not. There will be a meeting tomorrow morning at 10:00 AM Geneva time to discuss what to recommend to the General Assembly.

It’s hard to say at this point whether this will be an exercise in face saving or whether this is going to simply go on and on for a lot longer. It has already been going on for almost 10 years.

There is a feeling that something should be done about signal theft, which is a problem in some countries - but the big question is what and how. It appears that there is no consensus on even the most basic of questions after all this time. It would appear to be very questionable as to what progress could result from more meetings. Anyway, we'll know more by tomorrow at this time.

Maybe.

Apparently, the Chair - Mr. Liedes - will prepare another non-paper with consolidated comments.

HK

WIPO Broadcasting Treaty - June 20, 2007

Not much specific news yet about today's session on the WIPO Broadcasting Treaty ...things went very late over there.

Mr. Liedes has returned from Finland and was back in the chair.

He decided to switch to an open ended informal session with governments and the European Commission - which was accepted despite protestation from India.

This effectively locked the NGOs out of the room. And means that government positions are not recorded.

This is not a very transparent way of doing things.

Reminds one of the old adage about not wanting to know too much about how laws, treaties or sausages are made.

HK

WIPO Broadcasting Treaty - June 19, 2007

It’s been a hectic and inconclusive time at WIPO on the Broadcasting Treaty over the last couple of days.

Brazil etc. wants to enshrine A2K and cultural diversity in the body of the treaty and not relegate them to the preamble.

The US opposes this and is also very cool towards the exclusive right approach.

Canada has taken a decisive position that recognizes that there will be costs and consequences of the proposed treaty and allows for an opt-out from exclusive retransmission rights. Canada has stated:

Canada recommends that Contracting Parties which did not give broadcasters a right to authorize simultaneous retransmission immediately prior to joining the treaty be allowed to opt out of simultaneous retransmission right with respect to unencrypted broadcasts (i.e. unencrypted wireless transmissions) provided that the retransmission is:
• not to another country (i.e. is not to a third country or back to the country of origin).
• not over a computer network accessible in another country
• not by unencrypted satellite signal

This would allow for the continued retransmission of free over the air “local” signals within Canada, including those from US border stations - which have always been retransmitted “for free” in Canada as long as they are within the definition of “local.”

This has gotten some good attention and coverage at the influential IP-Watch site. Personally, I think Canada is to be commended for taking a clear and constructive position that is consistent with the rest of CDN policy, e.g. CRTC and was arrived at after extensive consultation.

Apparently there was much talk about what “deferred” means in the context of a deferred retransmission right.

The Chair - Jukka Liedes - who has much personal investment in this effort (10 years of chairing these meetings and holding the drafting pen) - somewhat mysteriously returned to Finland on day 2, although he is presumably expected back in Geneva on day 3. He has been under much criticism from many quarters for not listening to the clear signal to stay away from an “exclusive rights” approach and to focus on a minimal "signal protection" conception.

The meeting has basically only dealt so far with the preamble. It is supposed to get through the whole substance by Thursday.

The US is sending strong signals that it isn’t out to get a treaty “at any cost.”

This is supposedly a “do or die” meeting. Not only Mr. Liedes but WIPO itself has a great investment in this process. WIPO has become much less influential in recent years in terms of norm setting and has failed to achieve any meaningful treaty results since the 1996 WCT and WPPT treaties, which still suffer from minimal actual ratification by major developed countries. The last thing WIPO needs now is a failed diplomatic conference, or another treaty that doesn’t enter into force due to lack of support or doesn’t have any importance. Just think integrated circuits and audio-visual - not to mention data bases and patent law harmonization.

Even the content owner friendly Hollywood Reporter seems to radiate pessimism about treaty prospects - and has some good coverage of the heavy corporate opposition in the USA, which is clearly why the USA has become lukewarm if not outright cool or cold to the whole effort.

HK

CDN Government Submission for WIPO Broadcasting Treaty

This is the official text of a written submission that has been submitted by the Canadian Government to WIPO. If features an opt-out provision proposal for the proposed exclusive retransmission right. Further comment may follow...but it's important to get this out right away...

Here's a link to bookmark to the official WIPO site for the meeting, where the CDN submission should soon appear.

HK
***********************************************************

Submission by Canada on the Proposed WIPO Treaty on the Protection of Broadcasting Organizations

Canada is pleased to make this submission on the proposed WIPO Treaty on the Protection of Broadcasting Organization. The submission largely addresses the April 20, 2007, non-paper provided to member states by the WIPO Secretariat.

I. General Comment:

Paragraph 9 of the "Notes on the non-paper" states: "The Treaty would in no instance affect public interest, access to information, consumer interests or technology innovation." This, in Canada's view, is highly debatable. Indeed, Canada is quite concerned that should the treaty contain an exclusive right of retransmission, there could well be additional costs to retransmitting over-the-air television that might at least in part be passed on to consumers. In addition, in the event that there are such increased consumer costs, consumer spending may be diverted from optional cablecasts and specialty satellite services.

II. Comments on the text of the April 20 non-paper:

Article 2, Definitions

For the purposes of the Basic Proposal, Canada recommends that there be a separate definition of "cablecasting organization" and that it be used in addition to "broadcasting organization" in all of the relevant parts of the text. It may be that the final treaty will give different rights to broadcasting and cablecasting organizations and using separate definitions in the Basic Proposal will make this option more obvious.

Article 5, Beneficiaries of Protection

Canada recommends that both the origin of the transmission and the headquarters of the broadcasting or cablecasting organization be in another Contracting Party (but no requirement that they be in the same Contracting Party).

Article 6, National Treatment

Canada supports alternative J

If the Basic Proposal includes a term of protection, Canada recommends that this article include a rule of the shorter term.

In light of our recommendation allowing Contracting Parties a limited opt-out with respect to the simultaneous retransmission of unencrypted broadcasts, there should be a restriction on national treatment so that other Contracting Parties would be allowed to retransmit broadcasts from Contracting Parties which had exercised the opt-out.

Article 7, Protection of Broadcasts

Canada recommends that Contracting Parties which did not give broadcasters a right to authorize simultaneous retransmission immediately prior to joining the treaty be allowed to opt out of simultaneous retransmission right with respect to unencrypted broadcasts (i.e. unencrypted wireless transmissions) provided that the retransmission is:
• not to another country (i.e. is not to a third country or back to the country of origin).
• not over a computer network accessible in another country
• not by unencrypted satellite signal

And provided that all content in the broadcast, including live events which are not protected by copyright, other than works which have fallen into the public domain or performances or sound recordings (where domestic performances or sound recordings are not entitled to compensation for retransmission in the country of reception), be entitled to compensation for such retransmission. Contracting Parties may require that live events must be fixed at the time of broadcast to be entitled to such compensation. It shall be a matter of the law of the state in which protection is claimed to determine whether the recipient of such compensation is the originating broadcaster or the organizer or producer of the event.

With respect to satellite retransmission, if the retransmission is encrypted and the retransmitter does not provide the means of decryption or consent to decryption in the other country, it is deemed not to be a retransmission to that country.

Article 9, Protection of Encryption and Rights Management Information

Protection of Encryption

If wording of this type is included in the Basic Proposal, the text "capable of decrypting" in paragraph (I) may be too broad. Canada would recommend focusing on devices or systems whose primary purpose or effect is decrypting.

Rights Management Information

Canada recommends that this be limited to factual and identifying information relevant to the protection of broadcasting organizations.

Article 10, Limitations and Exceptions

The appropriate wording of this article may depend upon what substantive rights and protections are included in the treaty. In general Canada favours retaining the specific limitations and exceptions allowed under the Rome Convention but applying the three-step-test to other limitations and exceptions.

In light of this Canada recommends adding a new paragraph after the current paragraph 1.

1A "Contracting Parties may in relation to the rights and protection conferred under this treaty provide for limitations of or exceptions to the protection of broadcasts and cablecasts to the extent that such limitations and exceptions would be permitted for broadcasts by the WTO TRIPS Agreement"

Paragraph 2 should be amended to read:

“Other than for limitations or exceptions provided for in paragraph (1A), Contracting Parties shall confine any limitations of or exceptions to the rights and protection provided for in this Treaty to certain special cases which do not conflict with a normal exploitation of the broadcast and do not unreasonably prejudice the legitimate interests of the broadcasting [or cablecasting] organization.”

Article 12, Reservations

Given our proposal that there be a limited opt-out for simultaneous retransmission of broadcasts, this article should be amended to allow that reservation.

UK Report on its Copyright Tribunal

The UK Intellectual Property Office has a report on its Copyright Tribunal, calling for several specific reforms, including such things as reduced reliance on expert witnesses and use of a joint expert witness.

The Brits consulted with Canada' Copyright Board and expressed "immense gratitude to The Honourable Justice William J Vancise, Stephen J Callary and all the staff of the CBC for their help and kindness during our visit."

Interestingly, there is a reference to the long awaited Canadian report from Craig Parks:

6.14 Similar criticisms about cost and delay have been voiced against the CBC [Copyright Board of Canada] and Copyright Tribunal of Australia; see - A Report on the Copyright Collectives Operating in Canada by C Craig Parks ...

This suggests to me that the British authors may have seen something that we Canadians have not yet seen - and Mr. Park's study was apparently due for completion in October of 2006, according to Canadian Heritage. That's about nine months ago.

I wonder when the folks at Canadian Heritage will release this study to Canadians...

HK

WIPO Broadcasting Treaty - June 18-22, 2007 in Geneva

The WIPO Broadcasting Treaty discussions resume next week (June 18-22, 2007) in Geneva.

The latest WIPO “non-paper” draft treaty is here.

Despite concern of a number of very influential countries that the previous versions of the draft treaty created unnecessary exclusive rights and that the exercise should be reigned in so as to be addressed only at signal theft, this draft would still create an exclusive retransmission right and “deferred” transmission right, whatever that may mean (i.e. how long is “deferred?) . (Article 7)

It would also create tough DRM/TPM provisions that could effectively lock up the underlying content, even if the content is in the public domain. (Article 9)

The draft does allow for limitations and exceptions consistent with the three step test approach. However, it seems unclear or even unlikely to me that such limitations and exceptions could avail against the DRM/TPM regime that would be expected.

We all look forward to seeing what position Canada will publicly take. In the past, Canada has questioned an exclusive retransmission right - and if Canada maintains this position, there’s not a lot left in this draft that Canada could support. An exclusive retransmission right would mean that many border stations that are now retransmitted “free” on cable could collect royalties worth potentially a very large amount of money. The CRTC has recently rejected the demands of domestic broadcasters for payments (“fee for carriage”) for retransmission of their basic over the air channels.

Canadian retransmitters oppose the exclusive retransmission right and Canadian broadcasters are said to be currently somewhat divided in their support.

At the Copyright Right Society of the USA meeting earlier this week, US Register of Copyrights, the Hon. Marybeth Peters, indicated that she didn’t think that much progress had been made in narrowing this effort down to a purely signal theft based treaty. While I don’t recall her exact words, I got the impression she didn’t think that enough progress had been made to hold a diplomatic conference later this year. If her view is in harmony with the US negotiators in Geneva, this would suggest that the US Government may oppose a diplomatic conference for later this year - unless there is a major breakthrough next week.

The best critical discussions of which I am aware and collection of documents are found at Jamie Love’s CPTECH site and that of the EFF and IP Justice. CPTECH also has a blog on this, which may heat up next week.

HK

Statutory Damages - Pants Suit Goes to Trial

Judge Roy L. Pearson has apparently reduced his demands for damages from $65 million to $54 million as the gripping trial unfolds.

His opening statement included the following:

“Never before in recorded history have a group of defendants engaged in such misleading and unfair business practices...”

He called an 89 year old witness who compared the cleaners to Nazi.

When describing how his pants allegedly went missing, Judge Pearson reportedly had to leave the courtroom to compose himself:

Pearson also called himself as a witness, saying his problems began in May 2005 when he brought in several suits for alterations. A pair of pants from a blue and maroon suit was missing when he requested it two days later. He said Soo Chung tried to give him a pair of charcoal gray pants.

As Pearson explained that those weren't the pants for the suit, he choked up and left the courtroom crying after asking [Judge] Bartnoff for a break.

This litigation is based upon civil statutory damages, a concept imported from the USA into Canadian copyright law in 1997 mainly at the behest of the music industry.

HK

Copyright Piracy Value v. Prescription Drug Spending

Here's a comparison that is really interesting.

The US Ambassador to Canada, David Wilkins, says that CDN IP piracy may be costing the Canadian economy up to $30 Billion a year. (Let's modestly assume that's CDN dollars). On March 1, 2007, he told the Empire Club:

And we are working with the Canadian government now on that issue. We have met with Ministers Bernier and Oda and members of the Prime Minister's staff and we are requesting a stronger copyright bill be introduced and be passed. We are joined by the U.S. and Canadian motion picture and sound recording and computer software industries. Right now the copyright laws or the intellectual property right protection in Canada is considered the weakest of the G-7 countries. So we are asking that be strengthened. And it really does cost the Canadian economy a huge amount every year. It is estimated to be from some $10 to $30 billion per year.

Yesterday, the CBC reported that Canadians spend about $21 billion a year on prescription drugs. This is the third highest per capita spending in the world, trailing only the USA and France. The CBC's figures come from the Canadian Institute for Health Information and the OECD.

So - either Canadians engage in IP piracy that could be worth almost 50% more than their prescription drug expenditures - or the Ambassador's numbers are way off. Perhaps by several degrees of magnitude?


HK

The Latest Poop on Protest

Here's a protest from something called Art Threat that seems to focus on corporate privatization of just about anything one can imagine.

Some may find this to be clever. Others will find it to be in poor taste. Be forewarned.

In any event, here’s what it’s about, in Art Threat's own words:

Art Threat has launched the PACT campaign: Pooptagging Against Cultural Theft. The concept is simple. Corporations naturally try to privatize everything in their path, so we'll give them a hand. Whenever you see an abandoned pile of doggie doo, stick a copyright flag in it and lay your claim. One by one, we'll show the corporate world what we think of their claim to ownership of our culture.

Here’s the “how to” guide at the Art Threat web site. The video at Art Threat’s site doesn’t work too well, so here’s another link to their video.

Now you have the latest poop - or is it scoop?

HK

Letter to Warner Bros.

With the Warner studio so much in the news lately for its efforts to teach some respect to the Canadian government concerning camcording, I'm reminded of a former crusade by Warner Bros. against the most disrespectful Marx Bros.

For those who don't know history and need to reinvent it, or for those who just like to LOL once again, see this gem - stolen from the wonderful Chilling Effects website - or available at countless others.

It seems that Warner Bros. has always been on the cutting edge of demanding respect for its intellectual property......

Letter to Warner Brothers: A Night in Casablanca

Groucho Marx

Abstract: While preparing to film a movie entitled A Night in Casablanca, the Marx brothers received a letter from Warner Bros. threatening legal action if they did not change the film’s title. Warner Bros. deemed the film’s title too similar to their own Casablanca, released almost five years earlier in 1942, with Humphrey Bogart and Ingrid Bergman. In response Groucho Marx dispatched the following letter to the studio’s legal department:

---

Dear Warner Brothers,

Apparently there is more than one way of conquering a city and holding it as your own. For example, up to the time that we contemplated making this picture, I had no idea that the city of Casablanca belonged exclusively to Warner Brothers. However, it was only a few days after our announcement appeared that we received your long, ominous legal document warning us not to use the name Casablanca.

It seems that in 1471, Ferdinand Balboa Warner, your great-great-grandfather, while looking for a shortcut to the city of Burbank, had stumbled on the shores of Africa and, raising his alpenstock (which he later turned in for a hundred shares of common), named it Casablanca.

I just don’t understand your attitude. Even if you plan on releasing your picture, I am sure that the average movie fan could learn in time to distinguish between Ingrid Bergman and Harpo. I don’t know whether I could, but I certainly would like to try.

You claim that you own Casablanca and that no one else can use that name without permission. What about “Warner Brothers”? Do you own that too? You probably have the right to use the name Warner, but what about the name Brothers? Professionally, we were brothers long before you were. We were touring the sticks as the Marx Brothers when Vitaphone was still a gleam in the inventor’s eye, and even before there had been other brothers—the Smith Brothers; the Brothers Karamazov; Dan Brothers, an outfielder with Detroit; and “Brother, Can You Spare a Dime?” (This was originally “Brothers, Can You Spare a Dime?” but this was spreading a dime pretty thin, so they threw out one brother, gave all the money to the other one, and whittled it down to “Brother, Can You Spare a Dime?”)

Now Jack, how about you? Do you maintain that yours is an original name? Well it’s not. It was used long before you were born. Offhand, I can think of two Jacks—Jack of “Jack and the Beanstalk,” and Jack the Ripper, who cut quite a figure in his day.

As for you, Harry, you probably sign your checks sure in the belief that you are the first Harry of all time and that all other Harrys are impostors. I can think of two Harrys that preceded you. There was Lighthouse Harry of Revolutionary fame and a Harry Appelbaum who lived on the corner of 93rd Street and Lexington Avenue. Unfortunately, Appelbaum wasn’t too well-known. The last I heard of him, he was selling neckties at Weber and Heilbroner.

Now about the Burbank studio. I believe this is what you brothers call your place. Old man Burbank is gone. Perhaps you remember him. He was a great man in a garden. His wife often said Luther had ten green thumbs. What a witty woman she must have been! Burbank was the wizard who crossed all those fruits and vegetables until he had the poor plants in such confused and jittery condition that they could never decide whether to enter the dining room on the meat platter or the dessert dish.

This is pure conjecture, of course, but who knows—perhaps Burbank’s survivors aren’t too happy with the fact that a plant that grinds out pictures on a quota settled in their town, appropriated Burbank’s name and uses it as a front for their films. It is even possible that the Burbank family is prouder of the potato produced by the old man than they are of the fact that your studio emerged “Casablanca” or even “Gold Diggers of 1931.”

This all seems to add up to a pretty bitter tirade, but I assure you it’s not meant to. I love Warners. Some of my best friends are Warner Brothers. It is even possible that I am doing you an injustice and that you, yourselves, know nothing about this dog-in-the-Wanger attitude. It wouldn’t surprise me at all to discover that the heads of your legal department are unaware of this absurd dispute, for I am acquainted with many of them and they are fine fellows with curly black hair, double-breasted suits and a love of their fellow man that out-Saroyans Saroyan.

I have a hunch that his attempt to prevent us from using the title is the brainchild of some ferret-faced shyster, serving a brief apprenticeship in your legal department. I know the type well—hot out of law school, hungry for success, and too ambitious to follow the natural laws of promotion. This bar sinister probably needled your attorneys, most of whom are fine fellows with curly black hair, double-breasted suits, etc., into attempting to enjoin us. Well, he won’t get away with it! We’ll fight him to the highest court! No pasty-faced legal adventurer is going to cause bad blood between the Warners and the Marxes. We are all brothers under the skin, and we’ll remain friends till the last reel of “A Night in Casablanca” goes tumbling over the spool.

Sincerely,

Groucho Marx

Unamused, Warner Bros. requested that the Marx Brothers at least outline the premise of their film. Groucho responded with an utterly ridiculous storyline, and, sure enough, received another stern letter requesting clarification. He obliged and went on to describe a plot even more preposterous than the first, claiming that he, Groucho, would be playing “Bordello, the sweetheart of Humphrey Bogart.” No doubt exasperated, Warner Bros. did not respond. A Night in Casablanca was released in 1946.

Bad news and good news from Warner

The big copyright news today in Canada is that:

Warner Bros will halt all "promotional and word-of-mouth screenings" of new releases, says the Hollywood Reporter.

That's the bad news.

The good news is that:

Warner Bros will halt all "promotional and word-of-mouth screenings" of new releases, says the Hollywood Reporter.

A bit more space for independent Canadian and "foreign" films would be a great thing for people who really care about great films. More bad news like this could be quite good for Canadian heritage.

HK

Don't Die in New York State - you may have problems

The IP Quote of the day goes to Mark Roesler, the owner of Indianapolis-based CMG Worldwide, which manages the Monroe publicity rights:

“This sends a message to famous people in New York that if you die in New York you may have problems.”

This, after a potentially very significant set back for post mortem right of publicity claims in New York State.

Personally, I can't quite see how dying in New York State is much more problematic than dying anywhere else, at least for the deceased.

HK