The Allowed Fool and the Law

In Tudor England, the only relatively safe way to tell truth to power (to coin a phrase), was to be reliably and consistently amusing about it. Kings, Dukes, dictators and tyrants have been understood to like a good laugh, and to very occasionally tolerate a really good joke at their own expense.

It helped for the longevity of the comedian if he could be excused for his impudence because it could be attributed to a harmless mental disorder.

An elegant modern term for such a repeating disorder might be "brain fart". 

College professor and Shakespearean scholar Steve Werkmeister writes an excellent blog about the allowed fool in Shakespeare's Twelfth Night (January 6th), and suggests some contemporary comedians who perform this role.

https://stevesofgrass.wordpress.com/2016/06/12/twelfth-night-allowed-fools/

Some blogs age well. Observations made in June 2016 might seem even more perspicacious in January 2022.

The blog No Sweat Shakespeare offers a self-styled ultimate guide to Shakespeare's fools... and a heavy larding of irrelevant advertisements.

https://nosweatshakespeare.com/blog/ultimate-guide-shakespeares-fools/

Drew Layton writes a fascinating analysis of a song lyric copyright case (in which the plaintiff did not prevail). The words in a sentence may be identical, but copyright depends on original expression that has been created independently and separately from another work.

 https://www.eip.com/us/updates/article/music_copyright_case_discusses_originality_requirement

The same analysis might apply to jokes.

The defence in the lyric case was very well served because the defendant had kept very good records of his creative process, and had sound recordings of early versions of the song, including experiments with a variety of phrases (beginning with "tell me that...") before settling on the phrase in question.

Titles cannot be copyrighted, for instance, but documenting ones experiments might be a good idea.  The same might apply to punchlines.

Intellectual Property attorney Milord A. Keshishian of the Milord Law Group wrote an interesting blog about copyright litigation between an extremly popular comedian (and others), and an author who published a complilation work of other peoples jokes.

https://www.iptrademarkattorney.com/los_angeles_copyright_litigati/

The author made the monumental mistake of giving attribution by name to the comedians whose jokes she transcribed, published and distributed without permission.

One might use the search term "compilations of jokes" and find a great many YouTube videos of individuals telling jokes, but beware of appropriating them.

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

How The Cookie Crumbles

Regrettably, this is not about an end to data-collecting "cookies".  It's about intellectual property esoterica. 

For Fenwick and West LLP , legal blogger David L. Hayes Esquire  has complied the most comprehensive and fascinating summary of the most newsworthy and influential copyright lawsuits in recent times.

It is titled, "ADVANCED COPYRIGHT ISSUES ON THE INTERNET."
https://www.fenwick.com/insights/publications/advanced-copyright-issues-on-the-internet

Here is the link to the .pdf, all 1020 pages of it.  
https://assets.fenwick.com/documents/Internet-Copyright-Treatise-0920.pdf

It's an absolute treasure trove if you want to know what was really going on with the Dancing Baby (see page 889), or why EBay cannot be touched when its sellers sell copyrighted works at auction (see page 926) , caching, incidental copies of copyrighted works, inducement liability, vicarious liability, innocent storage, acting as a conduit,  and much much more.

Many decisions seem harsh to copyright owners. That's the way the cookie crumbles.

Of great interest is pp 999 - 1001 (First Sales In Electronic Commerce), which goes to the heart of why the Internet Archive's digital lending premise is not permitted under the DMCA. At least, it is of interest, if you read this rather piratical distortion of copyright history by Ryan and LaToya and Maria.

https://wdet.org/posts/2020/10/15/90154-publisher-lawsuit-against-internet-archive-puts-future-of-book-ownership-in-question/

I'm not sure if you can "like" this author's reply to the premise, left in the Comments section of the piece, but the comments about "the future of book ownership" are absolute, opinionated rubbish.

Another somewhat concerning article about a religious institution deciding to opt for piracy instead of donating their library to a University occurred this week.
https://www.insidehighered.com/news/2020/10/21/marygrove-college-library-materials-have-been-digitized-and-placed-online-will


For those writers with a book written and ready for competition, entry into the Vivian is free for members of RWA and also for non-members this inaugural year, and will open for entries on November 10th at 11.00 am Central Time.

Visit www.rwa.org/TheVivian for information.

All the best,

Rowena Cherry 

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

On Intellectual Property

Cory Doctorow has an unusually long, information-dense post this bimonth, about the background of the concept of intellectual property:

IP

He reviews the history of open source software and the shift toward increasingly stringent restrictions, leading up to the present situation in which taking the wrapper off a box legally commits users to agreements they haven't yet had a chance to read. He discusses in great detail the principle of "interoperability," which lets all railroads run on the same tracks, all brands of lightbulbs work in lamps from different manufacturers, in general all the benefits of standardization. "Interoperability lowers 'switching costs' –- the cost of leaving behind whatever you’re using now in favor of something you think will suit you better." This advantage to consumers, naturally, is something a lot of commercial interests would like to eliminate or minimize. Doctorow analyzes how companies such as Google and Facebook make it easy for customers to start using their services but hard to get out, sometimes impossible to do so without abandoning a wide network of services and contacts. He explores the differences among copyright, patent, and trademark and how those different "creators' monopolies" became bundled together under the single term "intellectual property" -- a development he disapproves of, by the way.

Market monopolists, according to Doctorow, often strip power from the alleged "creator's monopoly." Corporate monopolists also tilt the balance of power as far as possible from the consumer to the seller. The abuse of DRM, one of Doctorow's recurrent topics, is a conspicuous example. Laws against bypassing software, as more and more devices in common use become computerized, will inevitably lead (according to him) to this result: "Software isn’t just a way to put IP into otherwise inert objects. It’s also a way to automate them, to make them into unblinking, ever-vigilant enforcers for the manufacturer/monopolist’s interests. They can detect and interdict any attempt at unauthorized interoperability, and call the appropriate authorities to punish the offenders." Furthermore, "Even where tech is challenging these monopolies, it is doing so in order to create more monopolies." He mentions the Kindle program and Amazon's dominance of the audiobook market as examples.

This article contains much to reread, digest, and debate. Is Doctorow's concluding manifesto valid? "There are no digital rights, only human rights. There is no software freedom, only human freedom."

Margaret L. Carter

Carter's Crypt

What Makes Private Property Private?

Cory Doctorow's latest column explores the doctrine of "terra nullius" (nobody's land), which he traces back to John Locke's 1660 work TWO TREATISES OF GOVERNMENT:

Terra Nullius

Under this theory, private property is created by "a human taking an unclaimed piece of the common property of humanity and mixing it with their labor" to create something new, which then "belongs" to the creative innovator. The catch in this theory, according to Doctorow, is the problem of deciding what constitutes "unclaimed," "common property," or unimproved "nature." European colonizers, for example, viewed the lands of "primitive" people as available for settlement and exploitation because they weren't "owned" by any individual according to the Western concept of ownership—in an act of radical "erasure" of the indigenous peoples. As Doctorow puts it, if those lands belonged to nobody, the "primitives" who lived there must be "nobody."

How does this distinction apply to intellectual property? Doctorow summarizes the claim as follows: "The labor theory of property always begins with an act of erasure: 'All the people who created, used, and improved this thing before me were doing something banal and unimportant—but my contribution is the step that moved this thing from a useless, unregarded commons to a special, proprietary, finished good.'” One application he cites is the example of the Beatles. The R&B rhythms the Beatles incorporated into their music didn't count as owned; they were considered common property, available to anyone who chose to use them. On the other hand, if any musician nowadays takes recognizable elements of the Beatles' songs and incorporates them into new material, that's considered theft. How do we decide what's owned and what's free for use without acknowledgment or compensation? A similar phenomenon that occurred to me, not mentioned by Doctorow, is the 20th-century folk revival. Some folk musicians recorded traditional songs and copyrighted them, thereafter claiming ownership of the song (not simply of their particular arrangement of the song). Here's a forum thread discussing what elements of traditional songs can be copyrighted, as opposed to changes by individual singers that should be considered part of the "folk process" rather than private property:

Folk Song Collectors and Copyright

Two remarks in Doctorow's article that particularly struck me:

"The Ayn Randian hero is delusional: his (always his) achievements are a combination of freeriding on the people whose contributions he’s erased, and bleating that everyone who had the same idea as him was actually stealing his idea, rather than simply living in the same influences he had."

Here's how Doctorow applies this principle to authorship, using his own work as an example: "I wrote my books. They were hard work. I made real imaginative leaps that contributed to the field. Also: I wrote them because I read the works of my peers and my forebears. If I hadn’t written them, someone else would have written something comparable. All these things can be true. All these things are true. Originality exists, it just doesn’t exist in a vacuum."

In my opinion, that last sentence makes a valid and important point. Nothing in his essay, however, supplies guidelines on how to determine what creative elements qualify as "original" contributions that deserve protection as private property.

For example, here's an update about the ongoing lawsuit among Tom Clancy's estate, his widow, and his first wife over who gets to profit from past and future works featuring Clancy's character Jack Ryan:

Who Has Custody of Jack Ryan?

While I don't think anyone would deny that Clancy created and therefore "owned" Jack Ryan according to both ethical and legal principles, the question of who holds rights to the character after Clancy's death (or should the profits be split on some kind of chronological basis, depending on when the particular books or films were released?) is tangled up in a dense legal and contractual controversy.

Speaking of "commons," if we could trace back far enough, we'd find that every creative work was originally made by some individual or particular group of creators. It's just that once a work gets so old we can't identify the creator(s), we categorize it as "traditional" and part of the "common property of humanity."

Margaret L. Carter

Carter's Crypt

Creepy IP for Halloween, Maria P. Goes ...Bumped Into The Night

Look out for the #CreepyIP  hashtag. Anticipating Halloween, the USPTO publishes an entertaining and edifying blog about all the Intellectual Property and copyrights on display during Halloween (in the candies, costumes, decorations, tools and gadgets.

https://www.commerce.gov/news/blog/2016/10/when-patents-and-trademarks-go-bump-night

Perhaps you might like to join the conversation?

Something else, prematurely went "bump into the night" and gave some imaginative and creative people a case of the horrors.  On Friday October 21st, Maria Pallante, the Register of Copyrights who has been a courageous and outspoken advocate for creators, authors, artists and musicians, was "bumped upstairs" and allegedly deprived of internet access to the Library of Congress computer system, according to two sources who spoke with Library employees.

https://www.loc.gov/today/pr/2016/16-189.html

And
https://artistrightswatch.com/2016/10/22/google-fires-head-of-u-s-copyright-office/

Why, though? The Trichordist has some thoughts
https://thetrichordist.com/2016/10/21/google-and-public-knowledge-coup-register-of-copyrights-fired-dark-days-ahead/

According to Billboard
http://www.billboard.com/articles/business/7549978/maria-pallante-removed-us-register-of-copyrights

"US Register of Copyrights Maria Pallante was removed from her job Friday morning (Oct 21) by the Librarian of Congress, Carla Hayden, who has authority over the Copyright Office...."

It is interesting to reflect on who supports Carla Hayden. Alleged P2P Pirates!
https://thetrichordist.com/2016/02/28/former-director-of-p2p-piracy-alliance-endorses-nominee-to-oversee-copyright-office/

To this author, it seems strange that businesses that consider music, movies, books, photographs, and games "content" and that publish and distribute and monetize other peoples' intellectual property ... often without the copyright owners' affirmative consent should have any influence on the  Copyright Office and the Register of Copyrights.  But, that's the current Administration for you. It's not likely to change in the next 4 years.

Buy stock in Google and Amazon.... and get some cool and creepy disguises for Halloween and the dark days ahead.

All the best,
Rowena Cherry

What's WIPO And Why Should Writers Care?

WIPO is the World Intellectual Property Organization.

Writers ought to care because copyright is the only legal protection that writers have to ensure that writers are able to profit from their time, expertise, and creativity.

WIPO defines "Intellectual Property" thus:

Intellectual property (IP) refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce.
IP is protected in law by, for example, patents, copyright and trademarks, which enable people to earn recognition or financial benefit from what they invent or create. By striking the right balance between the interests of innovators and the wider public interest, the IP system aims to foster an environment in which creativity and innovation can flourish.

You can check out its resources on copyright here: http://www.wipo.int/copyright/en/

There are many free reports including "

UNDERSTANDING COPYRIGHT AND RELATED RIGHTS"

which can be downloaded using this url, or directly from the WIPO site by searching for 893.
http://www.wipo.int/export/sites/www/freepublications/en/copyright/893/wipo_pub_893.pdf 

In my view, Report 893 gives the lie to self-serving assertions --made by people who profit or benefit from piracy-- that content posted on the internet "should be free" and that writers, photographers, musicians, actors, artists and others should give away their intellectual property (free), allow others to monetize the creators' intellectual property without compensating the creators, and that the creators should find other ways to make a living.

 "In the global economy, copyright protection creates the basis for entire industries such as those for music, publishing, film, broadcasting and software, and affects as well many other business activities. Thus copyright is a powerful source of economic growth, creating jobs and stimulating trade."

The Guide is quite lengthy, but it sets out to establish a methodology for assessing the financial impact of copyright (the contribution to the GDP) and of copyright-protected individuals and businesses.

"80. A number of conditions need to be met in order for copyright to perform its properfunctions. Among those particular attention should be paid to appropriate monitoring andcontrolling misuse by consumers as well as the existence of appropriate valuation ofcopyright, which has to balance the true cost of production and efficient protection."

And

"...creators must be sufficiently compensated, or they will find another employment...."

And

"If the intellectual property is not protected it will be easily reproduced and some other delivery media will compete with the original on the market. This will undermine the profits and could imply insufficient compensation for the creator. Under a system of legal protection the marginal cost of reproduction will be increased and the market price will not fall so far as when originals and copies compete and creators can thus enjoy compensation.45" 

I am grateful to Joseph Harris for drawing my attention to the WIPO site and the free Guide, and also for his excerpts, some of which I have used as a matter of convenience instead of taking the trouble on my own to cut and paste them from the free .pdf.

Rowena Cherry

Credit:  Joseph Harris, author/publisher, S P Publications, jcrharris.com

Joseph Harris is completing a number of books, the first of which he hopes to publish before the year is out [Crimes and Ciminals of Old series], as well as a historical revision biography and othe longer works. He will also republish books not currently available; all initially ebooks. His website is visitable but not yet pretty! After service in the Royal Air Force his career spanned financial and related  journalism, horticulture and negotiating, with  few byways. His interests and writings range from humorous poetry to economics to people and politics; and he is devloping a "New Reform" political philosophy. 


All the best,
Rowena Cherry

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