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Copyright, Click Wrap and the Fourth Circuit Court

Copyright in the United States was originally enumerated as a short term monopoly for authors as a method of defining ownership of ideas and concepts(aka ‘Intellectual Property’) and also creating opportunity for financial wealth for authors in the “short term” and increasing the intellectual wealth of the society as a whole upon expiration of its term, with assignment to the Public Domain. I use “short term” advisedly as US Copyright has been savagely extended for the benefit of the so called Entertainment Industry.

Click Wrap is the term used to define an electronic agreement between an owner and a user. Most commonly found on the internet when signing up for such things as social media sites like Facebook, Google+, LinkedIn, Twitter, and registration on sites that allow interaction like commenting, uploading images, and other forms of interaction. In the heat to become one of the cool kids and or join the gang, folks blow past these agreements in their rush to belong, assigning licenses and giving up rights to their individual property. This has happened time and time again.

These “agreements” all contain the following:

For content that is covered by intellectual property rights (like photos and videos), you specifically give us the following permission, you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to For content that is covered by intellectual property rights (like photos and videos), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use, copy, publicly perform or display, distribute, modify, translate, and create derivative works of (“use”) any content you post on or in connection with Facebook. of (“use”) any content you post on or in connection with (Insert Your Social Site Name Here).

Basically while you maintain ‘ownership’, these sites can use, copy, publicly perform or display, distribute, modify, translate, and create derivative works of any content you post Derivative Works can be as simple as resizing an image to just renaming it, which if you ever used Typepad was their MO. Also is the game of removing metadata in an image, further obscuring actual ownership. Also a claim can be made for Derivative work status, creating something that you cannot claim. Sort of like filing the serial number off a gun or changing the VIN Number of a car.

Also understand that these ‘agreements’ are subject to change at any time. Be aware that these fulfill all the requirement of a contract between you and them. And in almost every case You Lose.

Which brings us to this article from Copyhype:
Fourth Circuit: Clickwrap Agreement Fulfills Writing Requirement for Copyright Transfer

The important tidbit:

The underlying dispute in this case is between two competing real estate listing businesses, Metropolitan Regional Information Systems, Inc. (“MRIS”) and American Home Realty Network, Inc. (“AHRN”). Plaintiff MRIS, located in Maryland, maintains a database of property listings to which real estate brokers and agents subscribe. These subscribers upload their listings to the MRIS database, and they agree via acceptance of the website’s terms of use to assign ownership of the copyrights in whatever photographs they upload to MRIS. Defendant AHRN, located in California, operates a nationwide real estate search engine. MRIS alleges that AHRN displayed real estate listings that contained copyrighted photographs from the MRIS database, and it filed suit claiming direct and indirect copyright infringement by AHRN.

MRIS is a social network for real estate agents with one important distinction: Their click wrap agreement assigns copyrights to them. Which was used as club to sue AHRN for copyright infringement. Due to the nature of click wrap contracts MRIS won.

Your really need to read the whole thing.

You should be very careful who you play with.

British Copytheft

A frightening piece of legislation from Britain.
UK.Gov passes Instagram Act: All your pics belong to everyone now

Here is a tidbit:

The Act contains changes to UK copyright law which permit the commercial exploitation of images where information identifying the owner is missing, so-called “orphan works”, by placing the work into what’s known as “extended collective licensing” schemes. Since most digital images on the internet today are orphans – the metadata is missing or has been stripped by a large organisation – millions of photographs and illustrations are swept into such schemes.

Yep! Everyone of those sharing sites like Facebook, Instagram, and others where you just clicked Yes to the Terms and Conditions is now free to exploit what they just boiler plated previously.

From Instagram:

“you hereby grant to Instagram a non-exclusive, fully paid and royalty-free, worldwide, limited license to use, modify, delete from, add to, publicly perform, publicly display, reproduce and translate such Content, including without limitation distributing part or all of the Site in any media formats through any media channels, except Content not shared publicly (“private”) will not be distributed outside the Instagram Services.”

I have written about this before,
Instagram’s TOS – Facebook Beacon 2.0

From Facebook:

“2.3 For content that is covered by intellectual property rights (like photos and videos), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use, copy, publicly perform or display, distribute, modify, translate, and create derivative works of (“use”) any content you post on or in connection with Facebook. This license ends when you delete your content or your account.”

Facebook Proposed Statement of Rights & Responsibilities, bullshit walks Take 2
Social Network Slavery YouTube hands Viacom the whip

Now it just remains to see how quickly the Social Media sites open up British offices to drive your property through this.

HTML 5, Flash and saying NO to H.264

There is a certain amount of controversy regarding video standards and support in the upcoming HTML 5 spec for creating and designing websites. This is an important debate in terms of the future and open direction of the web.

Video has become a substantial portion of the traffic across the web due to the vibrancy of our ability to process information in engaging our visual and audio senses at one time. Folks like moving pictures.

One of the bedrock principles of HTML is the open and unencumbered code that is used into creating what we see on the screen in our browsers. To that end video and the new video tag for embedding needs to be addressed sooner rather than later. Closed technologies never benefit users over the long run.

Flash by Adobe is the current front runner in video on the web. It is an interesting technology but has become spyware on personal computers. Flash cookies are stored on your personal computer and are not removable with the standard browser privacy controls.

Don’t take my word for it, check for yourself:
Where to find these flash cookies:

* Windows: LSO files are stored typically with a “.SOL” extension, within each user’s Application Data directory, under Macromedia\FlashPlayer\#SharedObjects.
* Mac OS X: For Web sites, ~/Library/Preferences/Macromedia/FlashPlayer. For AIR Applications, ~/Library/Preferences/[package name (ID)of your app] and ~/Library/Preferences/Macromedia/FlashPlayer/macromedia.com/Support/flashplayer/sys
* GNU-Linux: ~/.macromedia
Hattip Wired News: You Deleted Your Cookies? Think Again

Read More
Schneier on Security: Flash Cookies

And currently none of the browser makers are addressing this issue. But then Adobe has a history of violating your privacy. An earlier version, Flash Player 6, turned on your Camera and Microphone by default if your computer had them. Flash itself puts blocks between you and your privacy by requiring you to go to Adobe.com to “manage” you privacy settings. There is no other down loadable program that requires this scheme, and cannot be managed on your own computer.

They say that the new version will respect your privacy, but don’t hold your breath.

Adobe is trying hard to keep their grip on the video on the web by a campaign of disinformation as to how open the Flash application is.
However, here is the money shot from Dave McAllister a blogger for Adobe.

The main reason we can’t release Flash Player as open source is because there is technology in the Player that we don’t own, such as the industry standard hi-def video codec, H.264. Adobe pays for that codec so video plays reliably worldwide, across browsers and OS’s. So we make it as open as we can – by releasing the specifications.
Source: Open at Adobe

Moving along from privacy to usability
Kevin Lynch also posted his take on Flash and most revealing are the comments.
Adobe is also saying that Flash doesn’t crash or hang systems, but the comments on this posting at Download Squad tells a different story.
Interesting is the admission by Adobe of incorporating H.264 to hedge their bets.
H.264 is getting a lot of airtime across the web as a possible successor to supplant Flash as a video standard. As the above quote aptly demonstrates H.264 is not an open standard, but a proprietary codec owned by the MPEG LA group. In a story posted at Beta News, the H.264 Group says that they will not ask for royalties aka payment for use,(until 2015 unless they change their mind) but trust me, just like the UNISYS .gif patent mess they will come calling.

According to Allen Harkness, global licensing director:

“While our Licenses are not concluded by End Users, anyone in the product chain has liability if an end product is unlicensed,” wrote Harkness. “Therefore, a royalty paid for an end product by the end product supplier would render the product licensed in the hands of the End User, but where a royalty has not been paid, such a product remains unlicensed and any downstream users/distributors would have liability. Therefore, we suggest that all End Users deal with products only from licensed suppliers.”

anyone in the product chain has liability if an end product is unlicensedThink YouTube with Invoicing. When the RIAA gets tired of suing everybody, the lawyers can just step into H.264 suits.

Like folks are gonna plumb source code for licensing and or liability. Give me a fucking break! Seriously, most folks on the web think that Copyright is a gift from Microsoft with Right Mouse Click > Save As.

Ogg Theora is currently the frontrunner in open source video, still has some technical limitations, but it has the potential to become a royalty free open video standard.
Encumbering the web with proprietary technologies will kill the web as surely as if you turned off the power to your computer.

iPad Flash Refusal

The best decision made with the iPad is the refusal to to use or enable Adobe Flash. The rest of the iPad is the continuation of the Apple is God control meme. As Mike Copeland at Brainstorm Tech notes, it is all about control and money.

“If Flash were allowed on the iPhone or the iPad, software developers would have free rein to sell apps directly to consumers, bypassing Apple’s shops and Apple’s cut of the sale. If Flash were on the iPhone, you could watch Hulu and play games on Mini-Clip rather than buying movies from iTunes or buying games from the App store.”
Source: Brainstorm Tech

Flash is the most notorious piece of spyware in existence compromising your privacy with every animation or movie played.

Flash is a virus program masquerading as a helper application. It does not just process video for compression and playback but creates a cornucopia of spyware hidden to the standard privacy settings in your browser. Flash cookies are spyware. The animation characteristics of Flash is too small a percentage given the primary usage is video playback. You can clear your text cookies, but Flash Cookies remain and merrily spy and report to every site their are scripted for. Not just first party but third party sites as well.
John Nack who is an Adobe employee brings out the “guns don’t kill people, people kill people argument” in defense of Flash as being blameless.
when he talks about how wonderful Flash is. He goes on to entertain us in how much standard compliance there is with Flash. That being the current save the world H.264 video codec.

H.264 and Standards
The H264 codec is being bandied about as the new open standards video darling, but it really is not. It is encumbered by patents requiring the payment of royalties which does not qualify it as an open standard. The HTML 5 Working group seems to have forgotten open standards in their discussion and or implementation of an open video standard.

I thought that we had the RAND discussion back in 2001. Back then I wrote:

The W3C is currently exploring RAND as a method of allowing commercial entities to incorporate proprietary or closed technology to be adopted into the Recommendations that are known in the web development community as THE STANDARDS.

RAND stands for “reasonable and non-discriminatory”

The Danger with “reasonable and non-discriminatory”

They are neither. They sound good, and seem to be fair, but they are not. Poll Taxes ‘were reasonable and non-discriminatory’.
The theory was that if you couldn’t pay to vote you were a second class citizen. Excluding women from voting was reasonable and non-discriminatory. Same Deal. Times have changed and both of these propositions are no longer reasonable or non-discriminatory.

I see this RAND business as a coercion attempt on the part of private companies to subvert the work of the W3C and to control the web through license intimidation.

This is a preliminary document outlining a mechanism for including intellectual property, patents of questionable validity and proprietary code and software components into the W3C Standards as Recommendations.

The W3C is a world wide resource. If it is to remain the authority that we have made it, we cannot allow it to be blackmailed by private companies looking to bleed every developer, business, and user from Boston to Bangladesh.

The only thing that has changed since I wrote that is time has gone by. And your privacy is at greater risk than at any time ever.

With Apple you know that you are getting screwed, but you know that your partner is clean and have made that decision. Flash is like getting fucked in an alley by a wino with various STD’s.

Copyright Notes FOR Artists

Copyright is the entity allowing creative artists to make a living from their work. Distributors/Publishers are the middlemen that can help or hinder you in making money from your work. Assigning all your rights to a single entity is a recipe for suicide.

Monopolies have no incentive to work hard for you. Think I am wrong? Just ask your cell phone company.
Nina Paley writes this at Techdirt:

Middlemen will only have monopolies if artists keep granting them. They’re not going to give them up on their own. It falls on us artists to simply refuse to grant these monopolies in the first place. A copyleft license sends a clear, simple, and non-negotiable message to middlemen that they need to innovate and compete to profit from the work. Only we artists can supply the incentives they need to do their jobs well; and we can only do that by refusing monopolies.
The Problem Isn’t Middlemen, It’s Monopolies | Techdirt.

If a middleman says they need exclusivity, run away.

Some Copyrights are more Equal than others, but everybody is waiting.

Copyright is seriously screwed up. Don’t get me started.
Now the Copyright Office is seriously screwed up. The Washington Post has this:
© 2009? Wishful Thinking, Perhaps, as Backlog Mounts

For $35 you can file electronically, for $45 you can file by mail, (which is going up to $65 in August) and for $695 bucks you can file an ‘expedited’ registration. Nowhere in the intent of Copyright was a class system mentioned.

Being granted copyright and registering it are two different animals, with serious implications.

Maybe we should outsource the Copyright Office to Google, as they seem to be the only folks who can copy, present, publish and announce stuff in near real time.

Vendor Relationship Management and Personal Health Records

VRM is a theory that we own our data and should be in control of our relationships with folks who want to sell us stuff.

Dave over at e-patients has posted “Meaningful Use”: a pivotal definition for new-wave medical records systems which looks at coming medical records that are headed to the same place.

Dave outlined these principles on medical records.

My principles

* Patient is a first-person word. Your time will come: someday it will be you, your child, your mother, your spouse on that hospital bed or at that roadside being tended by an EMT. The way to think about this is in the first person: “my data,” not “patients’ data.”
* It’s my data. It’s my life that’s at stake. I have a right to seek the best care in the world, and if that means exporting a copy of my data from your system and taking it somewhere else, I have a right to do that..
* Corollary: No more proprietary data. Whose data is it, anyway? We must put an end to the era where a system provider thinks the data they collect is their property. Lives are at stake. Vendors must adapt to a world where they earn their margins by creating on-going value, not by holding data captive. This includes images (CT scans, MRIs, etc) as well as lab results and everything else.
* Let each constituency say what works for them. Patients shouldn’t say what doctors need, and doctors shouldn’t mandate how patients should and shouldn’t describe things. (Warning: experts on both sides should be able to comment on / warn the other about apparent errors. Docs must be able to say “Whoops, you overlooked this,” and patients must be able to say “Whoops, you overlooked this.”) [[link to medpedia post]]
* Enable participatory medicine – doctor-patient collaboration. Make it possible for each party to view the same data. (Ideally, I’d like to enable collaboration tools such as online discussion of my medical records – but that’s beyond the scope of this post.)Source e-patient.net

Replace Patient with Customer and you see what I mean.

Bonus Link: Health Care Relationship Management

Code, Privacy, and Copyright

HTML is the language of websites. For a number of years the W3C has been the  accepted authority on the bits of code and tags that make up what shows up on your screen. As technology has changed, there has been a number of people who think about and are working on coming up with a new version of HTML which includes various hooks to display different types of information.

The point of various ‘standards’ is to try to get what is written to show up hopefully the same in the various browsers.  This is a battle that has been going on since the second browser showed up. There is work on a new standard taking place right now. It is not going well. Shelley Powers has a great post on what it means, and the spitballing going on.

A lot of what is creating confusion is not deciding what a tag does, but more in what can be hooked up to it, and what can be extracted from it. Where cases can be made for Sematic tags, RDF Frameworks, common tags for extraction, all of this disconnects the writer from the user, and opens the door for forming technologies that manipulate these various elements in ‘novel’ ways.  The problem with machine readable tagging is the garbage in, garbage out, problem. If you can’t get it on the screen in the browser it doesn’t matter what you can do with it.

On the privacy front with the aforementioned code lunacy and allowing third party scripting reporting to someone trying to sell you something, collating your viewing and surfing habits, are a number of tools to stop this behavior. Tools like AdBlock Plus can cut down on a significant invasion of your privacy. Highly Recommended!
Adobe and its Macromedia product Flash which runs so many video sites, sets cookies in non standard locations for tracking, and are not easily removed. If you try to block them, sites break. Never mind that Adobe has never respected either your privacy nor your choice in your home. One of the first versions of the Flash Player turned on your webcam and microphone by default, and you had to change it to regain your privacy. Getting rid of Flash cookies is harder, But Wladimir Palant has a trick for doing that.
Getting rid of Flash cookies It is a little complicated, which just points out the lengths that companies and organizations will go to in order to invade your privacy and sell you down the river.

Copyright in the US is irretrievably broken. It has moved from a simple limited time monopoly for writers and artists into a gigantic entitlement program for the Industrial Entertainment Complex. Mike Masnick at Tech Dirt has a great writeup on a conference celebrating the 100th Anniversary of the Copyright Act of 1909 .
Read the posting.

Significant were the conclusions that International treaties are bullshit. I have long been an advocate of reducing Copyright back to 14 years, and re instituting Registration for Protection. Registration does not have to be a big deal especially in the internet age. Nor does it have to be expensive. Such a registration methodology can eliminate a lot of the present court time being sucked up litigating copyright issues, when a simple online search of the Registration Database can answer these questions.
Copyright is not a welfare program for the entertainment industry.

Judith Krug – Rest in Peace

Judith F. Krug, who led the campaign by libraries against efforts to ban books, including helping found Banned Books Week, then fought laws and regulations to limit children’s access to the Internet, died Saturday in Evanston, Ill. She was 69.

Source NYT

She should be missed by everyone who believes in freedom of access to information.

Amazon gets Borged

Amazon, arguably the largest bookseller on the planet, and proud parent of the Kindle Book Reader, whose birth defects are legion, most notably DRM, came out with V2, which added  text to speech as an enhancement, recently came under fire by none other than  the Borg Collective Authors Guild.

Roy Blount Jr., current President of the Authors Guild put forth the argument that:

“Kindle 2 is being sold specifically as a new, improved, multimedia version of books — every title is an e-book and an audio book rolled into one. And whereas e-books have yet to win mainstream enthusiasm, audio books are a billion-dollar market, and growing. Audio rights are not generally packaged with e-book rights. They are more valuable than e-book rights. Income from audio books helps not inconsiderably to keep authors, and publishers, afloat.”
Source NY Times

Audio Books still come on cassettes fer christ sakes! Growing Market my Ass!

There is nothing illegal with text to speech especially in the comfort of your own home, on your own devices,(readers, computers, your significant other, or parents) The First Sale Doctrine alone gives you the right to do what you want with your books. Regardless of delivery system, subject to physical or technological stumbling blocks like DRM. For example I used a copy of John Deans ‘Blind Ambition’ for target practice. Which is my right.

The “first sale” doctrine says that a person who buys a legally produced copyrighted work may “sell or otherwise dispose” of the work as he sees fit, subject to some important conditions and exceptions. Section 109(a). In other words, if you legally buy a book or CD, “first sale” gives you the right to loan that book or CD to your friend. Libraries heavily depend on the first sale doctrine to lend books and other items to patrons.
Source: AALL

Which if you have the brains god gave a gerbil, is the first free taste most people get that leads to an addiction to the printed word, culminating in visits to dead tree dealers both offline and on, like Borders, Barnes and Noble, and Amazon.

That the Borg Collective Authors Guild, would put forth such a specious argument boggles the mind in light of using the audio book market (another milestone in technology) as its justification for demanding the removal the Kindle’s technological Next Step, the text to speech feature.

No the most outrageous part of this sorry mess is that Amazon fell for it. Here is Amazon’s statement:

Kindle 2’s experimental text-to-speech feature is legal: no copy is made, no derivative work is created, and no performance is being given. Furthermore, we ourselves are a major participant in the professionally narrated audiobooks business through our subsidiaries Audible and Brilliance. We believe text-to-speech will introduce new customers to the convenience of listening to books and thereby grow the professionally narrated audiobooks business.

Nevertheless, we strongly believe many rights holders will be more comfortable with the text-to-speech feature if they are in the driver’s seat.

Therefore, we are modifying our systems so that rights holders can decide on a title by title basis whether they want text-to-speech enabled or disabled for any particular title. We have already begun to work on the technical changes required to give authors and publishers that choice. With this new level of control, publishers and authors will be able to decide for themselves whether it is in their commercial interests to leave text-to-speech enabled. We believe many will decide that it is.

Customers tell us that with Kindle, they read more, and buy more books. We are passionate about bringing the benefits of modern technology to long-form reading.

Note that the rights holders are emphasized,(before authors) which as an author you usually have to assign to a publisher to get published. The Borg Collective Authors Guild’s members would probably be better served limiting rights grants to publishers for publication. Because without authors, there is no reason for a publishing industry. Ask the Buggy Whip or Pager folks.
Authors should be drowning Jeff Bezos in fruit baskets or hookers in profound thanks making their work available worldwide 24/7.