Freedom for IP Dreaming of Intellectual Prosperity Fri, 14 Nov 2008 19:42:51 +0000 en John Perry Barlow on Copyfight & EFF /2008/11/14/barlow-on-copyfighting-eff/ /2008/11/14/barlow-on-copyfighting-eff/#comments Fri, 14 Nov 2008 19:36:13 +0000 Brian Rowe /?p=888 I just came across a  good interview at with John Perry Barlow, one of the founders of the copyfight movement. Here are some of the highlights:

Reason: How would you assess the accomplishments of EFF so far?

Barlow: Every existing power relation is up for renewal with cyberspace, and it was only natural there would be an awful lot of fracas where cyberspace met the physical world. EFF has been the primary mediator on that border. We have been very successful at protecting against excessive government encroachment into the virtual world.

Copyright and intellectual property are the most important issues now. If you don’t have something that assures fair use, then you don’t have a free society. If all ideas have to be bought, then you have an intellectually regressive system that will assure you have a highly knowledgeable elite and an ignorant mass.

Reason: Is it your goal to annihilate intellectual property?

Barlow: Let me differentiate my own view from ex cathedra EFF. I personally think intellectual property is an oxymoron. Physical objects have a completely different natural economy than intellectual goods. It’s a tricky thing to try to own something that remains in your possession even after you give it to many others.

Barlow’s fiery rhetoric has been a strong inspiration for both my and Sarah’s activism in copyright and patent reform.

PS: If you have not read A Declaration of the Independence of Cyberspace take a minute to.

Harry Potter Lexicon Case Appealed /2008/11/12/harry-potter-lexicon-case-appealed/ /2008/11/12/harry-potter-lexicon-case-appealed/#comments Wed, 12 Nov 2008 12:03:05 +0000 Brian Rowe /?p=882

Round two is coming /cheer.  There is a strong case here for fair use.  I will write a longer piece on this after I get back from vacation.

RDR Books, represented by Anthony Falzone of Stanford Law School’s Center for Internet and Society, has appealed their case to the United States Court of Appeals for the Second Circuit.

Past coverage:

Fair Use takes a Beating from JK Rowling

Grammy MusicTech Summit 08: Fair Use FireStorm Panel /2008/11/11/grammy-musictech-summit-08-fair-use-firestorm-panel/ /2008/11/11/grammy-musictech-summit-08-fair-use-firestorm-panel/#comments Tue, 11 Nov 2008 08:31:07 +0000 Brian Rowe /?p=873 This is the first of a series of reports for the Grammy MusicTech Summit 2008. On Thursday of last week I participated in the Fair Use panel. The panel was well run and covered the gambit of topics from music sampling in transformative works to to file sharing. Here are my initial notes on the panel:


Daryl Friedman – The Recording Academy (not the RIAA)


Jule Sigall - Microsoft
Jule was very centrist on the issues presented, this is the second MS Attorney that I have seen eye to eye with on some of IP issues, the first being Andrew Culbert who gave a great presentation on patent trolls at Seattle University Law last year. Jule did emphasize the history of fair use a case law that allowed for reasonable exceptions from almost the beginning of copyright.

Jule also brought up some interesting points related to the User Generated Content Principles authored by Mircosoft, Disney and Veoh (who recently won a big DMCA case) amongst others.  The idea of  taking fair use into account before sending a DMCA takedown.  Maybe I was overly critical of the UGC principles when they came out, in retrospect they have some positive and negative points.

Jay Rosenthal – National Music Publishers Association
Q: What words have the most meaning to you in the Patent and Copyright Clause?
A: Artists and Progress – without paying artist no one will create content.
Jay focused a lot of attention on fees for use and making sure that P2P is not considered fair use. He also emphasized how difficult fair use can be to determine. Jay’s rhetoric was heavily permeated with the “property” norms repeating Mark Twain’s characterizing the public domain as vultures.

Jay’s response to the Lenz v. Universal was interesting, he argued that the DMCA only gives a cause of action to people who abuse the takedown provisions when they do not own the copyright in the work where the takedown is asserted. I will have to look into this theory.

Although I strongly disagreed with many of Jay’s points on the panel it I do respect his perspective.  He the professional artist at heart, I hope to speak with again in a less adversrial setting, I think we have more in common then the panel presented.  I too want people to be able to make a living off music I just do not think exclusive monopolies are the best way to do this.

Brian Rowe - FFIP
Q: What words have the most meaning to you in the Patent and Copyright Clause?
A: Progress Copyright was designed to encourage creation, unfortunately now it is working to discourage creation by adding Transactional costs that make standing on the shoulders of giants nearly impossible. We are being asked to stand on the shoulders of lawyers which kills creativity.

When first asked this question I thought about mentioning the big word that is not in the clause, property. Viewing copyrights as rivalrous property is one of the largest things that is standing in the way of real innovation.

After the panel one of the other conference participants pointed out this great quote to me:

If you have an apple and I have an apple and we exchange apples then you and I will still each have one apple. But if you have an idea and I have an idea and we exchange these ideas, then each of us will have two ideas.

- George Bernard Shaw


Full audio and video for the panel should be available in the next few weeks.

PS This post was auto posted the author Brian Rowe is on vacation and will be back next week.

Rent an Icon - Alienate a Fan /2008/11/05/rent-an-icon-alienate-a-fan/ /2008/11/05/rent-an-icon-alienate-a-fan/#comments Wed, 05 Nov 2008 20:04:39 +0000 Brian Rowe /?p=866 Are icons safe from copyright claims? One artist thinks not, Takashi Murakami is sending shakedown letters, through an agent, asking you for you to cough up $500 a year to use his artwork and an icon.

A member of a poker site called twoplustwo named Mephisto used one of Murakami’s images as his 80×70 pixel avatar on the site’s forum.  Here is a copy of the letter he recieved:

Beat: “Your avatar is copyrighted

Hello, we are very complimented that you are a fan of Takashi Murakami’s art, however, the artwork image(known as And Then, And Then And Then And Then And Then Blue version, also known as Mr. DOB) you are using is copyrighted and therefore requires a license for private use, images used as avatars in forums are defined as private use and therefore you would need to purchase a license to use this image yearly.

The cheapest possible license costs about $498 USD or ¥50,000, if you cannot or are not interested in purchasing a private license, please take this off as your avatar, as Takashi Murakami’s artwork has to be licensed for private use.

We were contacted by one of our company colleagues who happens to post at this website, this is the only form of contact I have with you therefore I had to contact you within this form!

If you cannot purchase a license, we ask you kindly to please take this image off as your avatar, you are free to keep this artwork image on your computer, but private use is restricted and copyrighted.

Thank you, and I hope you will take this into consideration as I know myself this can get very unnecessary!


This over active licensing bothers me for three reasons:

#1 the fee asked is insane $500 for the use of an icon is more then it cost to play WOW for 2.5 years.

#2 the use of the icon does not compete with the market for the original work, in fact it increases the market value.  When I see interesting icons on LJ or forums if often sends me looking for the original source.  Icon use like this is basically free advertising for artist.

#3 The letter ignores fair use, there is a strong argument that noncommercial use use of a low quality cropped image may be fair use. Unfortunately it would cost thousands of dollars to take this to court and find out. (I do not see this as a strong fair use case, but possibly a borderline case)

I would support an author that wants attribution added to the icon or a link back, but obscene licensing fees only makes me want to avoid the artist and their work. My advice to Takashi Murakami is to fire his over active rights police before they hurt his fan base.

Careful With Those Avatars, You May Get A Shakedown Letter via TechCrunch by Michael Arrington

Forum post letter was taken from

CC & Free Culture Presentation at SCCC /2008/10/30/cc-free-culture-presentation-at-sccc/ /2008/10/30/cc-free-culture-presentation-at-sccc/#comments Thu, 30 Oct 2008 23:51:21 +0000 Brian Rowe /?p=864 Today I spoke at Seattle Central Community College to a Media Ethics class regarding Creative Commons and the Free Culture movement.  This was a refreshing experience the students were very engaged in the discussion.  This was one of the more receptive groups I have spoken to in Seattle, which is usually very frosty towards CC and FC in general. The realization that everyone is a creators bring to a discussion of FC an important element of how easy it is to create content.  The previous coach potato generation does not understand how easy it is to create a work, but this younger generation sees the world as an active canvas for creations.

Here are the slides from the talk:

At the end of the class we started to broach the topic of Girl Talk and fair use.  There were strong feelings on both sides due to the finical gain from selling CD’s and the impossibility of clearing all rights.  GT has exposed a real tension in the law that is breaking traditional notions of control and creativity.

in re Bilski Kills State Street and Some Process Patents /2008/10/30/in-re-bilski-kills-state-street-and-some-process-patents/ /2008/10/30/in-re-bilski-kills-state-street-and-some-process-patents/#comments Thu, 30 Oct 2008 19:39:17 +0000 Brian Rowe /?p=857 A very important case was decided today Bilski.  Read the desision here.

Therefore, we also conclude that the “useful, concrete and
tangible result” inquiry is inadequate and reaffirm that the machine-or-transformation
test outlined by the Supreme Court is the proper test to apply.19

Foot note :
19 As a result, those portions of our opinions in State Street and AT&T
relying solely on a “useful, concrete and tangible result” analysis should no longer be
relied on.

I soo want to skip my afternoon classes and read the 130 pages… hmmm more to come later.

Past articles:

ACLU, Patent Lawyers of Washington and End Software patents on Bilski before the decision.

Free Culture and Films /2008/10/26/free-culture-and-films-2/ /2008/10/26/free-culture-and-films-2/#comments Mon, 27 Oct 2008 06:09:26 +0000 Brian Rowe /?p=844 Here is my second column on SFFC for the Seattle Univeristy Law Prolific Reporter:

If you have tried to set up a movie viewing at [Seattle University Law] for a student organization lately you have probably run into the new copyright compliance policy.  Before showing a move at the school outside of a structured class you must gain copyright clearance from the copyright owner.  The reason the school is doing this is fear of lawsuit, copyright comes with stiff statutory damages, an unauthorized public viewing of a copyrighted could come with penalties up to $150,000. What has been the effect of this policy; most student organizations have stopped showing films due the the transactional cost of having to clear rights.  The time need to clear rights can take hour or days, time that is better spent studying for evidence or legal writing.

Is this policy good for student orgs? No, it makes it tougher for orgs to share information or rally students around a cause.  Is this good for film makers?  No less students see their work and less people will hear their message. Is this good for the rights holder? No, rights holders are not likely make any money off student org that have an annual budget of $200. Simply put the blanket policy is not good for anyone.

I am not one to complain, unless I am willing to change things.  The school should consider implementing a fair use policy related to student orgs use of films.  Fair use is the part of the copyright act that protects users from infringement claims. Another way to look at fair use is the codification of the first amendment in the copyright act. The use of a film for educational, noncommercial purposes in a way that promotes a public interest cause is very likely considered fair use. Here is a first draft of a suggested policy:

Student orgs may show films as long as they meet the following criteria:
1.  The film showing must be noncommercial in nature: no charging admission, taking donations or exchanging money in any way.
2.  The film showing must be for an educational purposes that is directly related the the student orgs mission.
3.  The film showing must not take place if the film are currently being shown in a commercial venue within 20 miles of Seattle.
4.  The film showing should be accompanied by other educational activities, such as a discussion of the films subject mater and how it relates the the student orgs mission.

If you have interest in learning more about how copyright creates problems Students for Free Culture’s showing of:

GOOD COPY BAD COPY - a documentary about the current state of copyright and culture.
The documentary features interviews with many people with various perspectives on copyright, including copyright lawyers, producers, artists and even the MPAA.  The point of the documentary is the thesis that “creativity itself is on the line” and that a balance needs to be struck, or that there is a conflict, between protecting the right of those who own intellectual property and the rights of future generations to create. The showing is Tuesday October 28th at 7:30pm in Room: C7.

PS: I did not have clear rights on Good Copy Bad Copy the film was released under a Creative Commons Attribution-NonCommercial license which encourages public use.  To read more about fair use and creative commons follow my blog at and join Student for Free Culture.  If we do not use our rights they are lost.

Attribution: The description of the documentary was remixed from Wikipedia and the image was taken from the intro screen of the film.

Propoganda Alert: Microsoft Anti-Piracy Day /2008/10/21/propoganda-alert-microsoft-anti-piracy-day/ /2008/10/21/propoganda-alert-microsoft-anti-piracy-day/#comments Wed, 22 Oct 2008 00:48:37 +0000 Brian Rowe /?p=842 Microsoft has just launched a new Anti-Piracy Day Campaign (quote from

Meanwhile, in the US, Microsoft has announced that it’s taking legal action against 20 software resellers in nine states, which it says ‘allegedly sold pirated copies of Microsoft Windows XP Professional and multiple versions of Office.’ Microsoft’s attorney, Sharon Cates, explained that ‘it is important to take the economic advantage out of pirating and counterfeiting in order to protect partners and customers.’ She also added that ‘Microsoft will continue to work to protect the channel, through resources and initiatives, from businesses that operate dishonestly.’

Microsoft says that ‘the collective impact of piracy in the U.S. is serious,’ and cites the findings of the Fifth Annual BSA/IDC Global Software Piracy Study, claiming that ‘software piracy and counterfeiting cost the U.S. economy more than $8 billion US in 2007 — roughly the equivalent of paying for the entire National School Lunch Program.’

They even have a great video with Rob Mckenna the Attoney General for Washington State is acting as a sock puppet for MS propaganda by making weak claims based on unvetted statistics. (the video is on the bottom of the article)  I know Washington loves MS, but can we please stop shilling for outdated business models through fear mongering and start supporting alternatives for the future of this state. I expect MS lawyers to shill but not our AG.

Arcticstoat on slashdot makes a good point it is Microsoft’s old products that are killing their new products:

Interestingly enough, unauthorized copies of Vista might not be harming the company all that much: reader twitter was among several to contribute links to a related story at Computer World which highlights Microsoft attorney Bonnie MacNaughton’s acknowledgement that pirates prefer Windows XP over Vista and Office 2003 over 2007.

Maybe the issue is the quality of the new products and the unavailability of the old products that is causing the problem.

Michael Masnick also has a great point on how this day of propaganda is inconsistent with Microsoft’s own claims about piracy:

Microsoft announce that today it’s celebrating “antipiracy day”,… Odd, then, that this would be the same company that in the past has admitted that it greatly benefits from piracy of its own products, in establishing worldwide standards and in competing against open source alternatives. The company, apparently, is a bit conflicted.

Read More at: Microsoft announces global anti piracy day


Part 1, What is Free Culture? /2008/10/21/part-1-what-is-free-culture/ /2008/10/21/part-1-what-is-free-culture/#comments Tue, 21 Oct 2008 20:09:12 +0000 Brian Rowe /?p=840 This is the beginning of a series of short articles I am writing for the Seattle Univeristy Law Prolific Reporter (PR). The publication is a weekly news paper for the law school, it is only available offline at this point.

In late fall of last year Seattle University School of Law became one of the few law schools in the nation to have a Students for Free Culture (SFFC) chapter. At the time, only Harvard Law School and George Mason Law School had law students involved in the movement.  All other chapters were undergrad chapters.  Since starting the SFFC chapter, the board members have noticed that there is some opposition to and confusion about SFFC.  I joined Seattle University because of the focus on public interest and social justice. During my first year of law school, the public interest paradigm did not appear to extend to extra circular activities focused on intellectual property.  However, I was able to connect with some amazing faculty including Margaret Chon and the visiting professor Elizabeth Townsend-Gard (whose copyright class I sat in on as a 1L).  These next few articles are designed to explain what SFFC is and why we need to care about public interest in the realm of copyright, patents and technology.

The second national Free Culture conference was held on October 11th and 12th at Berkley, it was attend by 270 students from through the US and abroad.  The focus for the conference was to set a national agenda had identified four areas of focus for the organization.  Before the conference students engaged in a nation discussion online and identified 4 areas of interest to SFFC.  They are best summarized by my summer roommate and fellow intern at Creative Commons, Tim Hwang: 1) Create a preemptive ultimatum around creative works to defend fair use 2) Connect with the development community (including access to essential medicine) 3) Encourage open access 4) Promote data portability.  By the end of the first day we had heard speakers on each of these main topics and were ready to take action.

The second day of the confernce was an un-conference (like barcamps) where the participants created there own panels.  One full track was dedicated to creating a campaign where students could take action. Students chose to focus on open access due to the broad reach and the focus on public interest generally.  This campaign gives student the opportunity to engage universities on topics ranging from how we use patents to access to information and knowledge.  SFFC believes that education and knowledge should be available to everyone regardless of social or economic position, this campaign is focused on opening up access to a broader audience.  The day ended with a written declaration of our values around open access and a commitment to run a 1 year campaign bring these issues up at all universities. Here is the text of the declaration:

The Wheeler Declaration

An open university is one in which

  1. The research the university produces is open access.
  2. The course materials are open educational resources.
  3. The university embraces free software and open standards.
  4. If the university holds patents, it readily licenses them for free software, essential medicines, and the public good.
  5. The university network reflects the open nature of the Internet.

Note: “university” includes all parts of the community: students, faculty, and administration.

This campaign with be used to grade and rank universities based on the above criteria.  After universities are graded, SFFC will develop action plans for dialogue with the universities to improve their scores and help move the universities to a more open model of education.
Final note: I am an IP geek. If you ever see me on campus in my black hat and kilt feel free to approach me and talk talk about IP issues I am always willing to engage in banter.  I also write daily at and

Brian Rowe

PS: I will be trying to get the PR to print online also.

/2008/10/21/part-1-what-is-free-culture/feed/ Profiles Launch /2008/10/21/creativecommonsnet-profiles-launch/ /2008/10/21/creativecommonsnet-profiles-launch/#comments Tue, 21 Oct 2008 10:05:53 +0000 Brian Rowe /?p=836 I just set up my new account.  All levels of donation for the Creative Commons fundraising campaign come with a CCNetwork account.  This account provides 3 things:

  • A profile page at to tell your story, with a link back to your personal site
  • An Open ID account with a great privacy policy
  • A central place to keep track for your CC works a registry of types

These are some nice perks for a fundraiser check it out and join the community: