Posted on November 24, 2008 in IP by Brian RoweComments Off

From KEXP’s Blog by Chris Estey:

In the “Fair Use Firestorm” throw-down, well, no one was thrown down because the two opposite sides (Jay Rosenthal of the National Music Publishers Association in a black polo shirt and slacks and Brian Rowe of Freedom for I.P. in black leather trench and droog bowler hat) were so vociferously opposed yet elegantly self-contained that it was like watching an immovable object resist pissing on an impenetrable force that had been set on fire.

Check the KEXP blog generally for local music news.

Posted on November 22, 2008 in copyright, FLI, IP by Brian RoweView Comments

Today we are out at University of Washington’s Law School. Here is the schedule for the day:

  • Breakfast and Welcome from Dean of the University of Washington School of
  • What you need to Know about Copyright – Robert C. Cumbow
  • Law Workshops
  • Parent Workshop
  • Lunch and Introduction to FLI Mentors
  • Mock Trial!

Note from Cumbow’s Intro to Copyright by Cumbow:

1. What is IP: The products of the mind.  Copyright, patents and Trademarks

2. What are the requirements for getting a copyright?  The work must be original and fixed.

3. Examples of copyrightable Matter:

  • Literary works
  • Musical works
  • dramatic works
  • pictorial works
  • derivative works (translations, film from books, works based on other works)
  • characters
  • motions pictures & other A/V works
  • sound recording
  • pantomimes and choreographic works
  • toys, games, dolls
  • computer programs
  • packaging design

4. Things that are NOT protected by copyright

  • ideas
  • facts
  • titles (de minimis)
  • slogans and other short phrases

5. Copyright Owner’s Rights

  • Reproduce
  • Make derivative works
  • Distribute (including “first publication”)
  • Perform publicly
  • Display publicly
  • Digital performance of Musical Work
  • Authorize (license) any of the above

Question: Why do people give up these rights?

Answer: Often someone else can exploit that right better.

Note Brian:

Question: Does the license or transfer have to be in writing?

Answer: yes and no… No for Licenses. Yes for Transfers.

Question: when you license or transfer a work do you get royalties?

Answer: Maybe this is up for negotiation, you can write a contract that stipulates some from of royalty.

Question: If I license a work to someone can they license it to someone else?

Answer: it depends on what you grant in the license.

Question: is licensing or assignment better?

Answer: Generally speaking licensing is better as you retain most rights.  hanging on to your copyright

6. How do I get a copyright?

  • Copyright is automatic! You already have one
  • This is automatic

7. What is copyright registration?

  • This is where you give the government notice that you have a copyright

8. Advantages of Copyright Registration

  • cheep ($35-$45)
  • Presumption of exclusive rights
  • prima facie evidence of validity, ownership, originality
  • Ability to bring infringement actions (to sue is court)
  • Choice of actual damage or statutory damages + award of costs and attorney fees

PS: statutory damage range from $200 to $150,000

Question: If someone makes a t-shirt with my image and a quote from me is that a copyright violation.


Question: many commercial companies have phrase or slogans are those protected by copyright?

Answer: No but this likely protected by trademark law.

Question: Can I use a picture, without the authors permission, I found online for scape book I am making for school?

Answer: Most likely yes, if your use is noncommercial, transformative and part of an educational activity it is likely to be fair use thus allowed

9. copyright infringement

  • Unauthorized use of an exclusive right
  • Federal Court has exclusive subject matter jurisdiction
  • Elements of a prima facie case :
  1. A valid, registered copyright
  2. Copying

10. Defenses

  • Time bared 3 year statute of Limitations
  • Waiver/acquiescence
  • The copyright is not registered
  • the registration is invalid
  • work is unprotected (ideas, facts)
  • The work is not substantially similar
  • Licensed (express or implied)
  • The use was trivial de minimis
  • Fair Use

11. Fair Use

  • codifies divisional law (came from old case law and is now a statute)
  • 1st amendment in the copyright law
  • Use of copyright for criticism, comment, teaching, news

12. fair use 4 factors (from section 107)

  • Nature of the use
  • Nature of the copyright work
  • Amount and substantial use
  • Effect on the market or potential market

13. Factor 1 & 2

  • Nature of use commercial or nonprofit educational, was it transformative
  • Nature of work fact based or fiction AND published

13. Factor 3 & 4

  • How much of the work did you use? did you take the”heart of the work?”
  • are you harming the market value of a work

14. Fair Use: Right or Defense?

Both, the court recognize it as a defense but it is related to the 1st amendment

15. How can you tell?

  • Before 1923 = not copyright
  • Check the copyright office (but most works are not registered)
  • Look for a copyright notice
  • if unsure assume it is copyrighted

Question: Can you register copyright under 18?

Answer: maybe I am not sure.  you can get a copyright just by creating something.  You can probably register that copyright.

Posted on November 21, 2008 in IP by Brian RoweComments Off

I just got notice form NTC that I get to run a panel again this year at NTC. Here is are basics:

Dear Brian C Rowe -

Congratulations! You have been selected to be a Session Designer for the 2009 Nonprofit Technology Conference on April 26-28, 2009. We are thrilled to have you! We would like you to serve as session designer for:
Fair Use, User Generated Content, Terms of Service and the DMCA Safe Harbor

A panel discussion with professionals from NPOs and the legal profession to help answer your questions and provide access to best practices around User Generated Content. This session will include 3 short presentations and lots of time for Q&A. Samples best practices and hands on resources will also be provided.

1. HOW TO: use Fair Use for your campaigns and members
2. Best Practices for Terms of Service related to UGC
3. Understanding the basics of the DMCA with regard to UGC

This will be fun. Last year Sarah and I ran a panel to a packed room on CC and Fair Use, which had great question. This year I am reaching out to EFF and ACLU NorCal to find a few strong legal speakers to join the panel.

Posted on November 21, 2008 in IP by Brian RoweComments Off

Over the last few months I have been writing a Mock Trial for Future of the Law Institute (FLI).  FLI, a joint enterprise of KCBF and KCBA,encourages minority and economically disadvantaged high school students to pursue higher education and law-related careers, thus broadening the pool of persons entering the legal profession. This years confernce is being attended by approximately 100 students.  Day one of the confernce is being held at Seattle University Law.

Opening Session, Professor Lori Bannai:

  • School Uniforms
  • Bong Hits 4 Jesus Morse v. Frederick
  • Self Expression v. Policitcal Expression
Posted on November 14, 2008 in barlow, copyfight, IP by Brian RoweComments Off

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.

Posted on November 12, 2008 in IP by Brian RoweComments Off

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

Posted on November 11, 2008 in IP by Brian RoweView Comments

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.

Posted on November 5, 2008 in copyright, copywrong by Brian RoweComments Off

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