Hacker Ways And The Decline of Language

Decadent thought leads to decadent language, which leads to even more decadent thought... and a vicious vortex of decay and corruption ensues. Is the process accidental or deliberate?

In "Politics And The English Language", George Orwell compares sloppy language to a sloppy drunkard.

"A man may take to drink because he feels himself to be a failure, and then fail all the more completely because he drinks. It is rather the same thing that is happening to the English language. It becomes ugly and inaccurate because our thoughts are foolish, but the slovenliness of our language makes it easier for us to have foolish thoughts." 

 

In 1945/1946, Orwell seemed to believe that the decline was reversible and clarity of thought and expression could be revived if writers and speakers made an effort and followed simple, critical rules such as:

i. Never use a metaphor, simile or other figure of speech which you are used to seeing in print.

ii. Never use a long word where a short one will do.

iii. If it is possible to cut a word out, always cut it out.

iv. Never use the passive where you can use the active.

v. Never use a foreign phrase, a scientific word or a jargon word if you can think of an everyday English equivalent.

vi. Break any of these rules sooner than say anything outright barbarous.

https://www.orwellfoundation.com/the-orwell-foundation/orwell/essays-and-other-works/politics-and-the-english-language/

 

Today, public speakers appear not to know the difference between a benefactor and a beneficiary, or between an expletive (noun) and something that is explicative (adj).  Badly written advertisements don't say what the advertiser intends: "Like you, my hands mean everything to me." "Report your allergy to your doctor."  "As a scientist, my dog..."  How supportive of vaccine acceptance is it for one Medicare coverage provider to be advertising, "With all the uncertainty of the virus AND VACCINE..."?

 

The one-time service to help copyright owners remove infringing copies of copyrighted works from the internet, MUSO writes about the predictive value of piracy , based on a study conducted in Europe.

They describe pirates as a bellwether, and explain (approximately) what a wether is... while decorously omitting the difference between a ram and a wether.  In a nutshell, a wether is castrated.

 

If one has to explain ones metaphor or simile, and if one cannot explain it fully, perhaps the metaphor is dead and the imagery stale. That said, I dropped the "nutshell" knowingly.

 

While MUSO  may or may not be pivoting to a marketing business,  the authorities in Canada seem to have less use for intellectual property pirates.

Legal bloggers Ken Clark and Lawrence Veregin  representing the combined intellectual property team of Aird and Berlis LLP and Aird and McBurney LP predict the beginning of the end of online piracy in Canada, and describe how Take Down and Stay Down will work --in Canada-- via real time site blocking.

https://www.airdberlis.com/insights/blogs/thespotlight/post/ts-item/the-beginning-of-the-end-of-online-piracy-in-canada

On hacking, Mary B. Ramsay and Grant P. Dearborn of  Schumaker Loop and Kendrick discuss the devious ways of Hackers and the risk from phishers phishing. Never give your email address and PW in order to open an attachment, even if it appears to have come from your better half or significant other.
 

There is a story involving far greater effrontery than that shown by all those young men who make telephone calls to seniors in the hope that the senior victim will find it plausible that he or she has a grandchild in immediate financial distress... but with access to Bitcoin or Western Union.

Lexology link
https://www.lexology.com/library/detail.aspx?g=06214f43-8b53-46d1-9281-076a4569a61a

Original link:
https://www.shumaker.com/latest-thinking/publications/2021/06/client-alert-the-risk-from-phishing

The news has covered the Colonial Pipeline and the JBS meat packer hacks but less has been said about the hacking of iConstituent, perhaps because the latter is less inconvenient to the public.

Apparently, according to at least two sources, sixty members of the US Congress have been hacked or phished, and as a result they lost their access to iConstituent.  If you notice a pause in the begging letters and emails, you might infer that your Congressperson's internet hygiene is --or was-- substandard.  Maybe if your trusted Congressperson sends you an attachment or link, you should not open it or click through.
https://www.independent.co.uk/news/world/americas/us-politics/congress-ransomware-attack-internet-latest-b1861759.html

https://www.techtimes.com/articles/261214/20210608/new-ransomware-targets-congress-members-complete-breach-iconstituent.htm

On that happy note...

All the best,

Rowena Cherry 

SPACE SNARK™ http://www.spacesnark.com/  http://www.rowenacherry.com

EPIC Award winner, Friend of ePublishing for Crazy Tuesday   

 

A Non-Fungible Future?

There was once a man who bought an original sketch in an inventory-draw-down sale. The sketch was done during the course of employment by a moderately well known designer. So far, so good.  The buyer was an EBay seller, and he created dozens of prints of the original sketch, which he auctioned on EBay week after week for years. That was questionable.

Lawfully, one cannot purchase a drawing, painting, photograph, cartoon, musical record, novella or novel  (even in e-book form) and proceed to create copies and sell them. Not unless the original creator formally assigned the copyright.

Now, there is Blockchain, and Non-Fungible Tokens, or NFTs. It seems that a single work of art that is sold as a NFT can be sold on, but not duplicated, and a modest royalty can be paid to the original creator with every down-market sale and resale.

Can creatives and celebrities rejoice? 

https://www.hickmanbecker.com/celebrities-and-creative-geniuses-rejoice-nfts-part-i/

Lexology link:

https://www.lexology.com/library/detail.aspx?g=06e3b2e5-5295-489b-baec-43a621575a0d

 

Seemingly, so say legal bloggers Jeffrey Madrak and  Agatha H. Liu PhD for the IP law firm Hickman Becker Bingham Ledesma:

 

"Non-fungible tokens, or “NFTs” are taking the digital world by storm. Jack Dorsey, the founder of Twitter, recently sold an autographed tweet associated with an NFT for $2.9 million. Super Bowl champion Tom Brady just announced the launch of the NFT platform he has cofounded that will offer digital collectibles. Such popular use with highly appraised items begs the question – What actually is an NFT? And for those of us in the high-tech world, the further question – How do NFTs relate to intellectual property?"

 They go on to explain:

"An NFT is a digital version of a certificate of authenticity (a token), secured and embedded in a blockchain. When an NFT is created, digital information including the creator’s name and other programmatic details such as the creator’s blockchain wallet address are linked to an underlying asset and stored in a blockchain (while the underlying asset might not be stored in the blockchain). Because NFTs are secured by a blockchain, no one can modify the record of ownership or copy/paste a new NFT into existence."

For authors in particular, author Maggie Lynch has put up a comprehensive blog post on the topic, in which she lays out the pros and cons for adopting the technology.

https://povauthorservices.com/the-blockchain-nfts-cryptocurrency-and-author-opportunities/ 

Herewith, a quote of a small portion, with permission and attribution to Maggie Lynch and her blog.

"Here are some ideas of how an average author might consider creating NFTs. I’m sure there are many more I haven’t even considered yet.

• Digital 1st edition released in limited numbers prior to a book being released en masse to retailers
• A collectible version of a backlist book or a recent release that has different art or added art pertaining to the story
• A special edition boxset that is not offered in retail markets and won’t be offered in retail markets
• A bundled special edition that includes ebook, audiobook, and a shipped hardback book as a package
• A 1st edition Live Reading before the book is released widely, whether narrated by the author or a paid narrator
• Additional works of art based on your characters that are sold as separate digital art, playing cards, and/or provides information not in the books but germane to the story
• Tiers of special editions – Platinum tier: Only 25 copies are made of original offering which includes additional art, audiobook, and a special edition hardback delivered signed and numbered. Gold tier: 500 copies of special edition which includes everything but hardback. Silver tier: 1,000 copies of digital special edition which includes additional art.  After this, the book is released as a regular ebook, print, audio all separate without any special edition things to the wider marketplace.
• A digital object that helps your reader solve a puzzle inside the book.
• A digital object that allows your reader to select two or more alternative endings
• A way for the buyer to have a video call with you for a specified period of time or to book you for a limited part of friends (book group, family, etc.)
• You could use one or more of your NFTs as part of a contest or giveaway to create buzz and get people interested in the platform

All of these are additional opportunities for PR, promo, buzz, and have the potential to also influence regular retail sales of your book products. Doing NFTs is one more market for you. I would not leave the usual mass markets just to do NFTs. Instead I would add NFTs as another way to gain income, at least until it proves it is the only way that makes sense for you to market your books."

Legal blogger Sophie Goossens, representing Reed Smith LLP, (a British law blog) takes a dimmer view of NFTs when it comes to ownership of works of art in a blog titled "You Think You Own An NFT? Think Again." She is, of course, speaking to art connoisseurs.

https://viewpoints.reedsmith.com/post/102gu68/you-think-you-own-an-nft-think-again

"Can one own a physical a piece of art? Yes. What do you own: the 'tangible property' i.e. the canvas, the statue, the physical sheet of paper embodying the work. Do you own the intellectual property in a piece of art just because you hold the original or a limited edition of it? No, if you want to own the intellectual property in the artwork, it needs to be assigned to you from the creator, by contract."

Sophie Goossens asks and answers several more interesting questions about possession and ownership of art and digital art.

 

Last (but not least), Pramod Chintalapoodi of the Chip Law Group takes a look at the legal implications of NFTs, and warns:

"The NFT's usefulness when it comes to IP rights is currently limited, and even problematic. The dilemma here is that ownership of NFT does not translate into ownership of an original work. In other words, buying an NFT does not mean that one is buying the underlying IP rights in a given content. Section 106 of the US Copyright Act states that a copyright owner has exclusive rights in reproducing and preparing derivative works. They also have exclusive rights in distributing the copyrighted work. Buying a piece of art does not mean that the copyright to that artwork transfers to the buyer."

https://www.chiplawgroup.com/legal-implications-of-nfts/

The bottom line seems to be that NFTs may be good for thwarting pirates and exploiters, and are therefore good for creators of art and literature.... but, one has to be prepared to adopt Ethereum.

Coindesk has put up a How-To guide to entering the NFT market:
https://www.coindesk.com/how-to-create-buy-sell-nfts

All the best,

Rowena Cherry  

SPACE SNARK™ http://www.spacesnark.com/  http://www.rowenacherry.com

Piling On

Income for "creatives" is estimated to have dropped 42% in the last decade, according to the Authors Guild, and the Supreme Court of the United States, and some of the Southern States are not helping at all.

Take Georgia's SB 226.  Apparently, it would allow school principals to post copyrighted works in their entirety, online, free to all, with no apparent compensation to the authors or other copyright owners/holders, for up to four years.

https://www.authorsguild.org/industry-advocacy/proposed-georgia-state-law-violates-authors-rights/

What could possibly go wrong?  

How could an author sell a book if one teacher who wanted the book on the curriculum could lodge a claim that the book is objectionable or harmful to minors, and then the State or local board of education could over-rule that teacher's objection, and for the next four years, no school or student would have to purchase or rent that book?

Georgia may be safe from infringement suits. It would appear that the Supreme Court of the United States permits States to violate the copyrights of authors and photographers and other creatives with impunity... if the South Carolina Blackbeard case is precedent.

https://www.usatoday.com/story/news/politics/2020/03/23/supreme-court-pirated-video-photos-blackbeard-pirate-ship/4862817002/

All the best,

Rowena Cherry 

SPACE SNARK™ http://www.spacesnark.com/  http://www.rowenacherry.com

What's Moral Got To Do With It?

For anyone who has ever thought of having a photograph copied and inked onto their body, or --possibly-- thought of putting a copyrighted photograph onto the skin of a fictional character, there's an interesting lawsuit in progress.

https://www.courtlistener.com/recap/gov.uscourts.cacd.809742/gov.uscourts.cacd.809742.1.0.pdf

Color me draconian. I was very interested to see whether the remedies sought by the copyright-owning photographer of a very remarkable photographic portrait of a great musician included a request for either the removal of the offending tattoo or a follow up tattoo to add the copyright management information. Apparently, the remedies sought are financial.

What, though, if the person with a copyright-infringing image on their skin were to be liable for infringement any time they took off their shirt in public? What if the image-bearer were a traditionally published author or musician and the copyrighted image might be somehow politically disfavored?

Publishers have "morals" or "moral turpitude" clauses in contracts, some more loosely worded than others, that allow publishers to cancel publishing contracts with authors and other artists.  When negotiating a contract, authors should pay attention to the contractual definition of "immorality". A mere accusation or allegation in private or on social media should not be sufficient. The "immoral" actor (or author) ought only to have their contract imperiled if they either admit to the immorality or if they are convicted in court of that immorality.

The "immorality" ought to rise to the level of illegality, and should not merely be a difference of opinion or something subjective. Also, the publisher should be able to show a realistic likelihood that the "immorality" is sufficiently offensive as to affect the anticipated market for the work.  Moreover, the "immorality" would have to be something of which the publisher was ignorant/unaware before signing the contract.

Happy Valentine's Day!

Rowena Cherry
SPACE SNARK™ http://www.spacesnark.com/  

This 'n That (And On Your Face... Or Not)

A laconic young male of my acquaintance, when asked by his father where he had been and what he had been doing, would reply evasively, "This 'n That."

This is not about him.

It's a heads up about author-related items of interest to writers, but there is no uniting theme.

A few years ago, as an indirect result of affordable medical care legislation, TEIGIT (an entertainment industry collective) found it unaffordable to offer group dental insurance to entertainment industry professionals.

Now, Authors Guild members are able to join the Book Industry Health Insurance Program (BIHIP) to buy health insurance with the Lighthouse Insurance Group (LIG).

https://www.authorsguild.org/industry-advocacy/authors-guild-partners-with-lig-solutions-to-provide-members-health-insurance-options/

Authors Guild dues are on a sliding scale according to the writing income of the member, but most members pay the minimum annual dues of  around $150 per annum.

Refer a friend link. (I have no idea whether or not this benefits this author. I doubt it, but disclose it.)
https://go.authorsguild.org/join?rc=57e0498b09194644

Additional disclaimer: Authors Guild is borderline political, but so far, not so much that dues are not tax deductible.

Authors and other creators who feel like they are being mugged every day by pirates might enjoy the Authors Guild ongoing advocacy against the allegedly lawless Internet Archive.
https://www.authorsguild.org/industry-advocacy/ia-national-emergency-library-update/

The law office of Littler Mendelson PC has a rather useful, State by State chart of where face mask wearing is recommended or required... or not at all.  You don't have to have anything sitting on your face in Oklahoma, Iowa, or Montana. Which is good to know.
https://s3.amazonaws.com/documents.lexology.com/57310a69-1d92-460f-a21f-72a9929052c7.pdf?AWSAccessKeyId=AKIAVYILUYJ754JTDY6T&Expires=1592693204&Signature=JJNC%2FUj6pwS0%2BSne2uCIKWZp9J4%3D

Talking of good-to-know stuff, the law office of Frankfurt Kurnit Klein and Selz PC, has a need-to-know breakdown of the recent DMCA report.
https://ipandmedialaw.fkks.com/post/102g8rz/copyright-office-dmca-report-what-you-need-to-know

Kudos to Craig Whitney, Caren Decter, and Christina Campbell. It's actually a very comprehensive article, with hot topics such as the meaning of red flag knowledge, repeat offenders, safe harbors, and an OSP or ISP's ability to control.

For our United Kingdom readers comes a really great analysis of WIPO and poor man's copyright from Dr. Catherine Cotter of Slaughter and May, with kudos to the researcher Emily Costello (no link to Emily available at this time.) Any English-writing writer might like this. (Not "like" in the Facebook sense.) If you are beyond wanting to snail mail a sealed envelope to yourself and preserve it in its intact state, check this out... (and forgive my grammar.)

https://thelens.slaughterandmay.com/post/102g9cb/wipo-brings-poor-mans-copyright-into-digital-age

All the best,

Rowena Cherry 

SPACE SNARK™ http://www.spacesnark.com/  http://www.rowenacherry.com

EPIC Award winner, Friend of ePublishing for Crazy Tuesday   

What You Don't See (May Bind You)

First there was the "fine print"; then there was the probably intentionally mind-numbing scroll of all caps print, page after page of it; then, there were sites such as EBay that forced you to join their club and agree to all their Terms (which of course meant that you held them harmless) before you could defend your copyrights; now --perhaps-- you have to agree to THE TERMS before you can read them.

Perhaps I misread this from Peloton to musicians:
"Click HERE to log into your MusicReports.com account and review the proposed license agreement. If it is acceptable to you, simply check the box to confirm you have read the agreement, then click the “I Agree” button to accept the terms. You can then download a full copy of the agreement from the “My Licenses” page in your account."

Credits to
https://thetrichordist.com/2020/04/16/is-musicreports-license-pitch-for-onepeloton-the-equivalent-of-a-poor-persons-class-action-settlement-without-court-supervision/

The tentacles of Mark Zuckerberg reach into your portfolio, and lift your copyrights, and there is nothing you can do about the filching of your photographic rights if you post a picture on Instagram.

"A New York federal district court has dismissed a photographer’s copyright infringement claims after finding that the photographer gave Instagram the right to sublicense her photograph to the accused infringer, Mashable, Inc. Mashable used the photograph at issue on its site by embedding a link to an Instagram post published on the photographer’s public Instagram profile. In Sinclair v. Ziff Davis, the court decided that, by including the photograph in a post on her public Instagram profile, the photographer had..." 

... unintentionally given Instagram a legal license to "share" her intellectual property.

Legal bloggers David W. Holt and Ryan J. Letson, writing for the law firm Bradley Arant Boult Cummings LLP, discuss the unsuccessful copyright infringement complaint by the photographer, Stephanie Sinclair, against Mashable Inc.
https://www.bradley.com/insights/publications/2020/04/looking-for-likes-social-media-post-results-in-unintended-license-to-share-photograph

They offer great constructive advice, but the bottom line is "User Beware".

Legal bloggers Radhika K. Raman and  Jeff Van Hoosear examines the perils of snagging someone else's photograph, even if the photo is of oneself.
https://www.knobbe.com/blog/its-photo-me-celebrities-face-legal-action-unauthorized-use-images-social-media

"Social media managers, celebrities, and individuals alike should exercise caution before posting photos online for which they do not own the copyright rights. Often, a simple source attribution, or a small licensing fee, can save months of legal trouble later. While many disagree with the public policy or reasoning prohibiting celebrities from re-sharing photos of themselves..."

OR, find the photo on Instagram, and embed the link.

Mark Sableman says as much about the same Sinclair/Mashable disagreement, in his legal blog for Thomson Coburn LLP, "It's not infringing if it's an authorized embedding."

https://www.thompsoncoburn.com/insights/blogs/in-focus/post/2020-04-17/it-s-not-infringing-if-it-s-an-authorized-embedding#page=1

Or
https://www.lexology.com/library/detail.aspx?g=139cc166-c3d8-49c8-add3-1a39725d7d2d

Facebook also, somehow, can snag Zoom users' information, even if the Zoom users don't have a Facebook account, or so it is alleged, and reported by legal bloggers for Troutman Sanders LLP Anne-Marie Dao, Wynter L. Deagle, and  Yarazel Mejorado.

Allegations include:

"Zoom sending data from users of its iOS app to Facebook for advertising persons [sic], even if the user does not have a Facebook account; The Windows version of Zoom being vulnerable to attackers who could send malicious links to users’ chat interfaces and gain access to their network credentials; Zoom not requiring a user’s consent before allowing the host of the meeting to record the session; The presence of a security flaw that would enable hackers to take over a user’s Mac..."

There are some precautions that Zoom users can take.  Read more on Linked In:

https://www.lexology.com/library/detail.aspx?g=013b92f2-4b1e-4dc9-89f4-8d78c3785a27&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=Lexology+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2020-04-27&utm_term=

Or on the Troutman blog:
https://www.troutman.com/insights/to-zoom-or-not-to-zoomprivacy-and-cybersecurity-challenges.html


Legal bloggers Warwick Andersen, Cameron Abbott, Rob Pulham, Allison Wallace and Max Evans collectively point out not only that some have alleged that Zoom's Privacy Policy does not disclose its leaks of users' data to Facebook but also that Windows users' passwords may be snagged.

Original link:
https://www.cyberwatchaustralia.com/2020/04/zooming-in-zooms-significant-privacy-and-data-security-risks-brought-to-light-again-and-again/

Lexology link:
https://www.lexology.com/library/detail.aspx?g=3b6d57ff-bfb4-402d-9e66-9dd03f2d8513&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email&utm_campaign=Lexology+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2020-04-17&utm_term=

So, even if you do everything right, and read all the "agreements" and "terms" and "policies" before joining someone else's Zoom meeting as an invited guest, your privacy and more is still likely to be violated.


It's more a case of seller beware (rather than caveat emptor) when it comes to Amazon. The Authors Guild provides a  perspective on Bezos behaving badly towards publishers and authors.
https://www.authorsguild.org/where-we-stand/amazons-anticompetitive-history/

And CopyrightAlliance continues to fulminate against immense copyright infringers and the senator who shields them.
https://copyrightalliance.org/news-events/copyright-news-newsletters/internet-archive-emergency-library-harms-authors/?_zs=TqSBb&_zl=5fF52


All the best,

Rowena Cherry 

SPACE SNARK™ http://www.spacesnark.com/ 

False Flags

This week, the Authors Guild exposed a gob-smacking abuse of the public trust and of the concept of law order and copyright. Kudos to Authors Guild for that!

https://www.authorsguild.org/industry-advocacy/internet-archives-uncontrolled-digital-lending/

There are many Covid-19 scammers pretending to be helpful, while actually ripping off the public or writers, artists, musicians and film makers, or pursuing a political agenda, and  IA appears to be one of them. Authors and bookstores cannot survive if society tolerates digital looting.

Andy Chatterly, co-founder of the for-profit anti-piracy business MUSO (which will send out take down notices on behalf of its paying subscribers) has published a white paper on the rise and rise of digital piracy... which is discouraging reading for creative individuals and small businesses.

https://www.muso.com/covid-19-protect-landing-page?utm_campaign=COVID-19%20Protect%20&utm_source=hs_email&utm_medium=email&utm_content=85294752&_hsenc=p2ANqtz---AbBRnta68KyCYlaKrM5_YKblGvUx6eYDT2G47U_bcAf9KhL_7hYzXL6oPcDBa_qaMEY2cOK1jNogFEsi-FuSI2PWwg&_hsmi=85294752

Recently testifying to the United States Senate subcommittee on Intellectual Property under an apparent false flag were members of The Pirate Party, as discussed by the Chris Castle, guest of the editors of thetrichordist.

It's kind of like bank robbers testifying on how bank vaults could be made more transparent and accessible to the public.

Particularly dispiriting are Chris Castle's revelations (or not) about the part played by academics and lawyers (and sometimes by members of the legislature under the influence of lobbyists) in weakening copyright and exploiting and enlarging loopholes in already Gruyere-like IP laws.

Thanks to MusicTechPolicy for a lively report on what Jonathan Yunger had to say to Chairman Thom Tillis's and Ranking Member Christopher Coons's committee about the functioning and effectiveness (or not) of the DMCA.

https://musictechpolicy.com/2020/03/12/you-cant-call-911-jyunger-of-millenniumfilms-tells-senate-why-piracy-is-still-a-problem-and-how-u-s-has-failed-to-lead/

That's four lengthy links. Enjoy!

All the best,

Rowena Cherry 

SPACE SNARK™ http://www.spacesnark.com

EPIC Award winner, Friend of ePublishing for Crazy Tuesday   

One New Piracy Host, One Old Pirates' Friend

Linked In owns Slide Share.
It looks like Slide Share makes available a lot more than slides.
https://www.slideshare.net/

Linked In is protected by safe harbor under the DMCA as long as it removes infringing links, and also removes repeat infringers.

Here is Linked In's page to report infringement.
https://www.linkedin.com/help/linkedin/ask/TS-NCI?lang=en

Some commentators feel that it is a waste of time to bother trying to take down piracy links because they are usually re-uploaded in a short period of time, however, there is a glimmer of justice on the horizon.

As Adi Shoval reports for Pearl Cohen, Cox Communications was recently fined a billion dollars for not removing repeat infringers (in this case, music infringers) from its platform.
http://pearlcohen.com/news/2019/12/31/us-internet-access-provider-hit-with-a-billion-dollar-verd/

The jury awarded $100,000 for the piracy of over 10,000 individual music works.

Meanwhile, just one senator is holding up the #CASEAct. For anyone active on Twitter, the CopyrightAlliance is asking creators and their friends to use the hashtag #AskWydenWhy and to tweet @RonWyden.

All the best,

Rowena Cherry 

SPACE SNARK™ http://www.spacesnark.com/ 

All About Face...And Image

This last week, the theme has been legal reversals (about face), about amusing, face-changing apps that come embedded with hidden dangers, a new trick by Facebook to "protect" users from inappropriate (age-inappropriate) paid advertising, and rampant, willful exploitation of artists' creative works.

Blogging for law firm Frankfurt Kurnit Klein & Selz PC, beauty and dispute resolution expert Jordyn Eisenpress discusses the new policy from Facebook-owned Instagram that new users must reveal their birthdays. Apparently, they will scrape linked Facebook accounts for "old" users to auto-add any birthday info that has been provided to Facebook.

Lexology link
https://www.lexology.com/library/detail.aspx?g=8007b5ef-d54f-46e7-940e-d798b01e56c6

Advertising Law link
https://advertisinglaw.fkks.com/post/102fvqb/instagram-will-ask-new-users-for-birthdays

My advice, be like the monarch of England. Have your real birthday, and a public birthday... and if a banker or stock broker or credit card customer service representative asks for your birthday, ask them to ask something else that only you would know.

Do you know where FaceApp comes from?  Can you live without it?
Allegedly, it comes from Russia. Love that!

Linn Foster Freedman, blogging for Robinson & Cole LLP warns that the FBI considers FaceApp a counterintelligence threat, and suggests that her readers improve their app hygiene. It's good advice!

https://www.dataprivacyandsecurityinsider.com/2019/12/privacy-tip-219-fbi-considers-faceapp-a-counterintelligence-threat/#page=1

For Manatt Phelps Phillips LLP, legal blogger Po Yi  asks whether Pinterest encourages, initiates and facilitates copyright infringement, and discusses why a recent copyright infringement lawsuit against Pinterest
questions the Pinterest business model.

https://www.manatt.com/Insights/Newsletters/Advertising-Law/Pinning-Copyright-Violations-on-Pinterest

In my opinion, as a Pinterest user, it would be very easy for Pinterest to add to the uploading process a pop up disclaimer where the user cannot complete the upload until they have affirmatively asserted under penalty of perjury that they own the rights to the image and are able to produce documentary proof if randomly audited by Pinterest.

Jeffrey D. Neuberger of Proskauer Rose LLP blogs about an expensive legal reversal in the case of copyright infringement by Zazzle, another company that has insufficient safeguards against immoral or ignorant users who upload other peoples copyrighted images or text for the purpose of commissioning Zazzle to create physical items displaying those images or words.

https://newmedialaw.proskauer.com/2019/12/10/online-willful-infringement-standard-clarified-zazzle-jury-award-reinstated/#page=1

If you use Zazzle, know your rights, responsibilities and potential liabilities... but there are probably myriad authors who would love a quote (with proper attribution) from one of their novels printed across the front of a Zazzle T-shirt. Just ask.

For those who know their limitations when it comes to a knowledge of copyright infringement and the law, this is a very good guide (if you can access Lexology.)

All the best,

Rowena Cherry 

SPACE SNARK™ http://www.spacesnark.com/  http://www.rowenacherry.com

Big, Big Theft

Happy long Labor Day weekend!

As some of us celebrate the honor and dignity of an honest day's hard work, and a workman's desire for fewer days of hard work, spare a thought for hard working individual authors, artists, musicians, photographers, songwriters and film makers who give so much to our culture... perforce.

The first six large-font, double-spaced (therefore easy reading) pages of a well-written complaint against Spotify do the heavy lifting in showing how Big Money, Big Government, and Big Tech conspire to rip off song writers and musicians.
https://musictechpolicy.files.wordpress.com/2019/08/eight-mile-style-complaint.pdf

The rights owners at Wixen Music Publishing have a similar problem with Pandora, which is allegedly publishing and distributing lyrics apparently without any knowledge as to whether or not their alleged source has the rights to provide those lyrics.
https://musictechpolicy.files.wordpress.com/2019/08/eight-mile-style-complaint.pdf

(Aside for authors: it is not a good idea to quote lyrics.)

Lyrics to a song are similar to captions for an audio book.  Having the rights to play a sound track does not necessarily confer the rights to generate accompanying text.  Allegedly, Amazon also is into that kind of thievery.
https://apnews.com/e2078e81c5ca42a9bcde6aeea678b129

There is also, of course, petty, petty theft in which Everyman, his/her/their family members and his/her/their dog is engaged when it comes to photographers', actors', and film makers' rights....
https://www.sociallyawareblog.com/2019/08/20/the-meme-generation-social-media-platforms-address-content-curation/#page=1

Lastly, little things add up to something major when it comes to the loose and lawless Internet Of Things.  As legal bloggers Cameron Abbott and Karla Hodgeson, writing for K&L Gates warn, many of those smart devices in your homes are back doors for interlopers who want your data.
https://www.cyberwatchaustralia.com/2019/08/interlopers-in-things-iot-devices-may-be-used-as-backdoors-to-your-network/

Apparently, The Fancy Bear is a big, big cyber thieving problem!

Happy days!

All the best,
Rowena Cherry 

SPACE SNARK™ http://www.spacesnark.com/  http://www.rowenacherry.com

Digital Theft Is Like Selfish Motoring. Really? (A Rant)

EFF compares the unlawful practice of reproducing and distributing copyrighted works in violation of the lawful rights of copyright owners (copyright infringement) to bad driving (a civil traffic infraction).

EFF also calls anyone who would protect and preserve their copyrights "a troll", but name-calling is not remarkable. It is a pity that digital theft of intellectual property is equated with selfish non-adherence to driving or parking rules.

They tell their followers "prevent copyright trolling: tell your Representatives that copyright claims can't be treated like traffic tickets."

Is that an accurate representation of the C.A.S.E. Act? How are traffic tickets treated?

https://www.wisemantriallaw.com/blog/2012/august/the-difference-between-a-civil-traffic-ticket-ci/

Wiseman Trial Law blog explains what happens to a person who commits a traffic offense and is spotted and stopped by an officer of the law. The driver either constructively admits guilt and pays a fine, or they go to district court to dispute the grounds for their "ticket".

If they are repeat offenders, what might have been a civil infraction for a first timer becomes a criminal felony, for example if they were driving (badly enough to be stopped) while knowing that their license to drive had been suspended.

Under current copyright law, the statutory penalty could be as much as a $150,000 fine per instance, but the copyright owner would have to identify the infringer and take him or her through a federal court case at enormous expense (estimated at around $350,000 for the copyright owner) and long term inconvenience for both.

If the C.A.S.E. Act becomes law, the fine for the infringer would be capped at $15,000. Is that comparable with traffic ticket fines?

EFF suggests that one individual Claims Officer would award damages, but the Act discusses a small claims court, with a Claims Board of three Claims Officers to hear both plaintiff and defendant.

One similarity might be the "three strikes" idea. With traffic tickets, if you get too many points on your license, at some point, your license is suspended. With the DMCA, in theory, repeat offenders are supposed to be banned from some internet access.  In practice, few platforms ban repeat offenders, and there are no measures to prevent banned individuals from rejoining with a new name and a new email address.

Keith Kupferschmidt blogs about the problem of the platforms whose business models reward their wilful blindness to the piracy from which they profit.
https://copyrightalliance.org/ca_post/more-monkey-business-at-the-copyright-office-dmca-roundtable/

There can be no working together as envisaged by the DMCA, when copyright owners know that works are widely pirated, and that take down notices are an endless, fruitless cycle of whack-a-mole, but the platforms insist that the take down system works perfectly.

In haste,

Rowena Cherry

The Trouble With Memes

This week, this writer noticed that at least two legal blogs are warning about Memes.

For the purpose of this discussion, a meme is an image or short clip of video, to which a caption is added by someone other than the copyright owner of the image or short clip, and it is forwarded across social media by thousands with no regard to the copyrights of the copyright owner, or the moral rights of the subject of the image.

Meme enthusiasts would probably say that the use of the image is "transformative", or that the use is "fair", because the image is only half the work, and the text is the other half --which is not a definition of Fair Use-- or that it is commentary, or parody, or being used to disseminate news or opinion, or to educate.

Memes are like emoticons. They are a quick, convenient way for the inarticulate to spread someone else's expression of an opinion without having to think for themselves. To date, the re-tweeter has also been able to share the meme without any liability or responsibility.  That may change, even if copyright law explicitly protects parody, criticism, and pastiche.

Legal blogger Georgia Shriane for Boyes Turner LLP (specializing in European Law and UK law) warns that meme law is coming....

Lexology link:
https://www.lexology.com/library/detail.aspx?g=1191618e-8200-49db-b9d7-c89d494d5546&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=Lexology+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2019-03-29&utm_term=

The original article can be found here:
https://www.boyesturner.com/article/article-13-meme-law-is-coming

Even if the meme is protected, if content platforms use automation to filter out copyrighted images, the bots may not perceive the difference between "a good meme" and copyright infringement. That's not all.

See also, from 2017, commentary on a weeping athlete, with a question about the consequences if this meme is used for commercial advertising
https://www.internetandtechnologylaw.com/unauthorized-meme-crying-jordon/#page=1

Also, see the commentary by Claire Jones of  Novagraaf  for when memes are used gratuitously, with the sole apparent purpose of tormenting a public figure:
https://s3.amazonaws.com/documents.lexology.com/78503cc7-93e3-470e-8a7d-37ffcbee9a56.pdf

Or read it on Lexology...
https://www.lexology.com/library/detail.aspx?g=c470fc1e-d61e-4f98-a3b3-d113233998db

The most ominous shot across the bows for meme sharers comes from legal blogger  Jordyn Eisenpress  writing for the law firm Frankfurt Kurnit Klein& Seltz PC  "Popular Meme Account Sued For Copyright Infringement And Other Claims.   

Read it on Lexology  (but beware, gentle readers: there is a very vulgar word as part of the defendant's twitter handle.)
https://www.lexology.com/library/detail.aspx?g=33280fc3-a77a-41c2-b429-f998d6f22556&utm_source=lexology+daily+newsfeed&utm_medium=html+email&utm_campaign=lexology+subscriber+daily+feed&utm_content=lexology+daily+newsfeed+2019-03-28&utm_term=

Or find the very recent original here, (also including the shocking handle).
https://advertisinglaw.fkks.com/post/102fh6p/popular-meme-account-sued-for-copyright-infringement-and-other-claims

Apparently, meme enthusiasts in New York should take note, and be very careful going forward.

All the best,
Rowena Cherry

EBay is still profiting from copyright infringement

After all these years...  Ebay is still profiting from and facilitating copyright infringement, or so it appears.

https://www.ebay.com/itm/Fantastic-Beasts-The-Crimes-of-Grindelwald-by-J-K-Rowling-2018-eBooks/192756806118?_trkparms=aid%3D555018%26algo%3DPL.SIM%26ao%3D2%26asc%3D20160908110712%26meid%3D8e5df7aec01147c2af7b6045aed0b1ef%26pid%3D100677%26rk%3D3%26rkt%3D30%26sd%3D233049677965%26itm%3D192756806118&_trksid=p2385738.c100677.m4598

Do the sophisticated people at ebay seriously believe that Scholastic gives or sells licenses to Ebay sellers to sell up to ten copies at a time of a legal ebook?

Moreover, their "have one to sell" appears, in the context, to solicit copyright infringement.

Flotsam, Jetsam, Great Stuff You Find When Surfing...

Let's extend a maritime metaphor --"surfing the internet" -- to the interesting and useful treasures that you may find floating about online.

Jetsam is the good stuff that someone deliberately abandoned. Anyone who finds it, can monetize it.
https://oceanservice.noaa.gov/facts/flotsam-jetsam.html

Flotsam, on the other hand, is good stuff that floated out of the custody of its owner by accident or mishap. The owner did not intend for it to be released into the wild, and the original owner retains rights to it.

If marine law has a term for stuff that pirates filch and dangle in the deep for bait to entice and entangle treasure hunters, this writer is not aware of it.

Legal blogger Terri Seligman, writing "The Real Deal: Using Found Content" for the prestigious law firm Frankfurt Kurnit Klein & Selz PC (which represents some of the world's best known celebrities and creative content creators, publishers, and providers) explains that all that glitters online is not necessarily yours to take.
https://www.lexology.com/library/detail.aspx?g=98c3332b-418c-4f19-b4ec-f94f5c11339b&utm_source=lexology+daily+newsfeed&utm_medium=html+email+-+body+-+general+section&utm_campaign=lexology+subscriber+daily+feed&utm_content=lexology+daily+newsfeed+2018-08-03&utm_term=

Check out and memorize Terri Seligman's eight easy rules to follow before you use for commercial purposes that amazingly real and authentic photograph that you "found" online.

If you should be wary about using a photograph taken by someone else, and also a photo of someone else, and also of a photo that includes any artwork (or graffiti) in the background, you should also be careful about re-using old school yearbooks.

Angela Hoy explains:
https://writersweekly.com/ask-the-expert/can-i-use-old-yearbook-photos-in-my-book-or-online

For our Australian friends, (and authors doing business in Australia) legal bloggers Gordon Hughes and Andrew Sutherland, writing for Australia's leading intellectual property legal practice  Davies Collison Cave
give advice based on that card game at which Han Solo excelled.

See "App Developers Turn To The Dark Side."

Just because a copyright owner does not notice someone else's copyright infringement (perhaps a meme .gif) or even ignores one copyright infringing use by someone else.... does not mean that the copyright owner forfeits their copyright and their right to sue another copyright infringer.

Podcasters also need to be careful, in this case, about the music clip they found online and may want to use.
Legal blogger David Oxenford, writing for the law firm Wilkinson Barker Knauer LLP has a series of articles on podcasting, and the pitfalls of podcasting without knowing who owns what.

https://www.lexology.com/library/detail.aspx?g=dd85dd95-dbbf-416d-b965-0fef55c13d36&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email&utm_campaign=Lexology+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2018-08-08&utm_term=

Yes, one has to pay the piper!

All the best,

Rowena Cherry

Dangerous Embedfellows And... Death Of The Meme?

Imagine you happen to be in the right place at the right time, and you snap the perfect photographic scoop of a famous person doing something newsworthy.

In your excitement, you share your photo with a few friends on Snapchat. You forget that, while once upon a time, Snapchat was a place where you could show a photo to chosen friends for a few seconds, and then the photo would vanish, now those friends can capture and keep those tantalizing shots.

Then, it dawns on you that you could probably sell or license that photo to a newspaper.

Too late. One of your erstwhile friends snags the sneak peek, and uploads it (thus infringing your copyright) to Twitter. Twitter does not warn your sneaky friend that he (or she) must have written permission from the copyright owner before they can legally upload a picture. Now, by virtue of Twitter's TOS, that thieving friend has given Twitter a limited license (albeit perhaps a license that friend had no right to give) to further publish and distribute that photo.

Then, a news network (perhaps even the last one on this planet to which you would willingly give free content, or perhaps your first choice for a juicy sale) embeds that valuable picture to illustrate a story, and they publish it. Now, your chance of selling that photo is gone forever.

Breitbart believes that, because they merely "embedded" a Twitter thingy, and didn't host your .jpg on their servers, they are free and clear of liability. Maybe not.

The inspiring predicament is discussed in real life detail by Jack A. Wheat blogging for the law firm McBrayer McGinnis Leslie & Kirkland PLLC in Court In Copyright Case: Don't Embed That Tweet!

https://www.lexology.com/library/detail.aspx?g=e278507a-6cfe-4bcd-8c5d-7e98399b36c0&utm_source=lexology+daily+newsfeed&utm_medium=html+email+-+body+-+general+section&utm_campaign=lexology+subscriber+daily+feed&utm_content=lexology+daily+newsfeed+2018-06-11&utm_term=

Apparently, the court decision in favor of the photographer is being appealed. Eventually, it may go to SCOTUS.

For our UK readers, the law is similar. If you did not take the photograph, beware sharing it. UK legal bloggers Jill Bainbridge and Nicola Rochon for Blake Morgan write a really helpful article titled Sharing photos online - the risks of Copyright Infringement.

https://www.lexology.com/library/detail.aspx?g=c6ddedba-c1e8-48b1-a7ef-fd0ce7c595fa

Just because a social media platform makes it possible, nay easy, for you to upload someone else's stuff to their site does not mean that you should do so, or that you are legally on safe ground if you do so. It would not be hard for Facebook, Twitter, Google, Ebay, et alia to develop a pop-up before you physically could proceed to upload a photo: "Did you take this photo yourself?" Yes/No  "Do you have written permission from the person who took the photo?" Yes/No.

There ought to be similar pop-ups on other user-generated-content reliant sites. "Did you write this e-book?" For instance. "Did you write all 100,000 ebooks on this DVD?"

Saquib Shah, writing for the Sun, warns UK readers (and the rest of the world) that Memes may be in mortal peril.

 https://nypost.com/2018/06/08/revamped-eu-copyright-law-could-mean-the-death-of-memes/

The problem with memes is that they rely on often-copyrighted images or movie clips that are appropriated by busy internet users, "transformed" (not very much) by users who add text or other edits to communicate amusing social or political commentary.

Can people no longer communicate without disrespecting other creators' copyrights? Would it be respectful to that fine actor, DeNiro, to take his recent stage pose with fists at shoulder level and edit in a MAGA banner between his raised hands? Do actors who roll their eyes in one context necessarily welcome their eye roll being used as commentary on any topic?

Here is a link to the proposed EU law.
 https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:52016PC0593

It is perhaps a sad state of affairs if those who object to the proposals really believe that people cannot freely and clearly (and wittily) put their thoughts and opinions and knowledge into writing.... or emojis.

All the best,

Rowena Cherry

Copyright-Related Reading and Dirt

This week, a publisher wrote to authors about the dismal prospects for newbies and traditionally published "mid-list" authors.  "Mid-list" is probably a euphemism for everyone who is not a bestseller.

If commerce is about "supply and demand", the supply for digital versions of books is mind-boggling (just Google any title and author) but also, the internet and auction sites have made it possible for anyone to find a used paperback (and sometimes a "used" digital version) for less than a publisher or author can afford to sell a royalty-earning version. So, where is the demand for bricks and mortar store copies?

That publisher blames the economy, and Amazon. The publisher does not mention piracy, but piracy is ubiquitous and unstoppable.

For more, read the red-haired legal hero George Sevier of Gowling WLG on online infringement. It is a very good piece. You should look at it.
https://www.lexology.com/library/detail.aspx?g=6d08db05-d778-4e49-9767-6b2950aaa351&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=Lexology+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2017-10-19&utm_term=

This author mentioned his hair hue because there is a vigorous debate online (in some quarters) about whether or not novelists should buck perception and make their heroes ginger.

But... Talking of Amazon....
Douglas Preston writes about an alarming "grey market" for books, and how and why authors "get zilch".

https://www.authorsguild.org/industry-advocacy/douglas-preston-gray-market-new-books/
https://www.nytimes.com/2017/10/12/opinion/book-publishing-amazon-sales.html

FWIW This author is a seller on Amazon, and the Amazon fees for selling an author's stash copy of a paperback are typically $4.24 (for Amazon) for a new, unread, untouched stash paperback copy advertised for $5.70 with free postage paid for by the author.  Or $4.14 for a new, never opened paperback being sold for $5.00 with free shipping.

Just for comparison/reference, I am also trying to sell a very rare, factory sealed Pocher Rolls Royce model kit for $1,085 and Amazon's fees would be $165 if I sold it, but even though no one else on Amazon has one to sell, Amazon shows the world that there are none available, and may never be available. You see, I don't pay Amazon $30 a month, so I will never get the "buy button".

https://www.amazon.com/dp/B002VANZSG

I'll be taking it back to EBay within the week. (I do not consider this self-promo because no one reading an alien romance blog is likely to be a rare and outrageously expensive car kit enthusiast.)

I cannot imagine why this author identified this (below) as being one of the most interest copyright-related reading of the week. With hindsight, it seems pretty dry reading.

https://www.federalregister.gov/documents/2017/09/29/2017-21065/compendium-of-us-copyright-office-practices

However, for authors who may not be absolutely convinced that their publisher submitted a best copy of their published work to the Library of Congress, it might be instructive bedtime reading. Or not!

Finally, some odd goings on behind the scenes at Facebook.
https://www.washingtonpost.com/news/the-switch/wp/2017/10/12/facebook-takes-down-data-and-thousands-of-posts-obscuring-reach-of-russian-disinformation/?utm_term=.3defa353fd6d

And the legal view of the matter from Peter S. Vogel of Gardere.
https://www.lexology.com/library/detail.aspx?g=36659707-7a81-4152-8280-fbd4fcc85307&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=Lexology+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2017-10-16&utm_term=

All the best,
Rowena Cherry

Are Your Works Being Infringed?

Someone asked me how to find out if their works are being infringed.

One method is to do an online search for the title of their book(s) and of their authorname. Another is to set up a variety of Google Alerts for their book title, also for some distinctive phrases used in their writing.

Osborne Clarke suggests some practical ways to respond to infringement.

http://www.lexology.com/library/detail.aspx?g=766ec599-6092-4f69-8665-0c562135bcf2&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=Lexology+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2017-07-10&utm_term=

Not every infringement can be taken down. Sometimes, Google lawyers will declare (mistakenly) that an infringing use is "Fair". Google lawyers have done that to me over "Knight's Fork", and I have no recourse.

I can say with reasonable certainty that, if a so-called online library is lending a "Rowena Cherry" book--for instance "Knight's Fork by Rowena Cherry" to subscribers in any digital format, that online library has no right to do so, because I never gave permission --and explicitly refused permission-- for any of my books, except "Mating Net" by Rowena Beaumont Cherry (which is published by New Concepts Publishing), and the hunk cover version of "Forced Mate" by Rowena Beaumont Cherry which was published by NBI, to be released in ebook formats.

Did you notice that? A lawful digital copy of my work is by "Rowena Beaumont Cherry". Any ebook by "Rowena Cherry" was illegally created and illegally sold.

However, if the (alleged) pirate site uses a privacy service, and the privacy service is the only link provided on the (alleged) pirate for any kind of contact at all, an author is within her rights to contact that privacy service to complain vociferously and repeatedly.

But... do not create an account.  In my opinion, Congress and the Administration and the Copyright Office make a serious error when they agree that it is lawful for a site such as EBay to force authors to join its VERO (verified rights owner) program in order to complain about copyright infringement.

Why should a creator who is being ripped off be denied the right to send a DMCA notice, as prescribed by the Digital Millennium Copyright Act, and forced instead to subscribe to a site or become a member of a site?

It's like being forced to purchase a product one does not want or need. Only it is worse.

The trouble with joining any site or service, (apart from the possibility of having to pay them) is the Terms of Service. One cannot join (even for the purposes of asking them to cease and desist from piracy or facilitating piracy or profiting from piracy) without agreeing to their TOS.

Have you ever read TOS? Try it sometime. Any site's TOS will do.  Do judges and lawyers and lawmakers read TOS? Usually, part of what you agree to is that you give up the right to sue them.

How's that? A site like EBay or Google may protect alleged copyright infringers, and give the alleged copyright infringers the ability to profit from alleged piracy, but in order to send a takedown notice, the ripped off author is forced to promise to indemnify the host and patron of the alleged copyright infringers.  That does not seem right to me.

On the other hand, there are many online "subscription libraries" that one suspects do not have the books they claim to have. They may only want your credit card information.

Stay wary, my friends!

All the best,
Rowena Cherry