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Posted on May 7, 2012 in IP by Comments Off

The “fundamental missions” of the University of California are “teaching, research, and public service.” All three of these missions are based on relationships – between teacher and student, science and progress, and universities and the public. These are symbiotic, rather than authoritarian, relationships, and yet – at least in the case of the teacher and student – Berkeley’s class notes policy gives its professors the sort of powers despots would approve of. There are better ways to manage the rights and responsibilities of professors and students.

It might be laughable to think that professors would really use the Berkeley policy to crack down on student notetaking, checking laptops at the door and randomly searching for pens, pencils, or even Sharpies, the WMDs of writing instruments. But why allow even the thought? A reasonable open-access policy can protect the rights of professors, while adhering, in language and in practice, to the mission statement of the University.

Let’s step away from California for a moment and generalize – what should a reasonably “open” policy on student note-taking include? Such a policy should embody a balanced set of permissions (preemptively granted to students) and limited restrictions (which professors may use when necessary), placing neither student nor professor above the other with respect to works like class notes, which are ideally the products of collaboration anyway.

To be fair, the Berkeley policy defaults to a permissive stance towards notetaking, requiring that professors expressly forbid or otherwise restrict notetaking activity during class. This is a start, but in general, students should be entirely free to take notes in whatever non-disruptive manner they choose. Of course, professors shouldn’t be particularly limited in how they define “disruptive.” What follows is a set of guidelines that should underpin a reasonably open note-taking policy:

  • Acknowledge the mission of the institution, and ensure that policies serve and reflect that mission.
  • Restrictions should be limited, and narrowly tailored to specific acts or activities.
    • Professors have the right to encourage a preferred type of classroom atmosphere, but restrictions placed on students’ ability to take notes and otherwise share information should be minimal, and justified by specifically addressing the advantages and disadvantages of any proposed restrictions.
  • Professors and students should engage in dialogue over their respective expectations of, and rights to, privacy.
  • Address copyright matters in an accurate and nuanced manner:
    • Copyright protects expression, not facts or ideas.
    • Fair use must be recognized and accepted, and not limited.
  • Proper attribution is critical in academia; students (and professors, for that matter) should acknowledge the authors of any material they use.
  • There are three general categories of use of materials:
    • Material that is unquestionably fair to use, such as any non-verbatim notes that students may take.
    • Material that “skirts” the boundaries, typically because use may violate someone’s privacy rights or interests.
    • Material that is rightly protected by copyright, such as pre-written notes or Powerpoint presentations that professors may distribute in class.

There are many interests at play in the classroom; Berkeley’s policy emphasizes the interest of the professor in his original works, as well as in ensuring the accuracy of statements attributed to him. These are important considerations, and legitimate reasons for certain restrictions. However, tying the whole educational process up in chains of copyright is not the answer. To do so uses false legalistic authority to obscure a genuine legal quandary that is only partially based in copyright: what is a professor’s legitimate and reasonable expectation of privacy in a classroom, and what are the limits of a given student’s right to free expression? A few years ago, PBS’s Mediashift “embedded” a student reporter into an NYU journalism class, and ended up confronting some of the same issues of privacy and student freedom. William Creeley of the Foundation for Individual Rights in Education also wrote an article about the legal issues involved in that case. Professors who discuss unpublished work in their classes should be aware that their right to privacy in classrooms may be quite diminished. Students should be aware of school policies, particularly at private schools, though few worthwhile institutions would advertise themselves as being against free speech and expression.

Open licensing provides a flexible approach for pre-prepared or unpublished material. Creative Commons allows professors to tailor permissions for their works, ranging from allowing almost anything and everything to be done with their work, including commercial use, to preventing anything other than simply passing along an unaltered work, with proper attribution. When presenting a manuscript or other work not yet published, professors should realize that they are not in a private space, and students should recognize that such materials do implicate copyright law. This sort of scenario – uncommon, difficult to generalize, and intricately tied to law –  should lie at the borders of a class-notes policy, not at its heart.

Posted on May 7, 2012 in IP, open access by Brian RoweComments Off


Great opportunity to work on a cutting edge Free Culture project:

The Berkman Center for Internet & Society and the Harvard Law School library seek a full-time Project Manager to advance their joint project, H2O. H2O is an online platform for textbook development and distribution, currently in a pilot stage. H2O is based on the open source model – instead of locking down materials in formalized textbooks, we believe that course books can be free (as in free speech) for everyone to access and, equally important, build upon.

Using H2O, professors can freely pull together materials for a course by selecting cases, editing those cases to the sections that are most relevant, and grouping them into readings. Once the materials are assembled, they can be copied in part or in whole by other interested faculty and then edited further.  H2O has been successfully piloted in Jonathan Zittrain’s 1L Torts class, and will be rolling out further over the coming year.

H2O’s project manager will play a leading role in shepherding H2O into its next phase, which will focus on developing new materials and incorporating additional features, in order to expand the platform beyond its law school roots.

The Project Manager will be housed at the HLS Library and work in close collaboration with lead members of the Library Innovation Lab team; he/she will also work closely with the Berkman Center and current H2O teams.

More information about the position can be found below, and applications must be submitted through the  HLS Human Resources Website at:

All best,

H2O Project Manager/Technical Lead

Duties & Responsibilities   

A joint project of the Berkman Center for Internet & Society and the Harvard Law School library, H2O is an online platform for textbook development and distribution, currently in a pilot stage.

H2O is currently seeking a full-time Project Manager who will play a leading role in shepherding H2O into its next phase, which will focus on: developing new materials and incorporating additional features, in order to expand the platform beyond its law school roots, and opening up the possibility for wide use and diverse application at Harvard and beyond. This could be an exciting opportunity for a law graduate who wishes to conduct research and contribute to curriculum development before going on to another opportunity, such as a clerkship or fellowship.

The Project Manager will be housed at the HLS Library and work in close collaboration with lead members of the Library Innovation Lab team; he/she will also work closely with the Berkman Center and current H2O teams.

Primary responsibilities will include:

Developing New Materials and Supporting New Courses

The Project Manager will be responsible for overseeing a team of summer interns who will be tasked with developing these materials and liaising with library staff for the collection of cases and other materials. He/she will also be the primary interface with new professors and work with them to develop their materials, syllabi, etc.

Developing and Implementing new technical features.

The Project Manager will work closely with the team and web developers and designers to identify priority areas for development. In addition, he/she will continue to guide our efforts to ensure that H2O software is broadly accessible; continued development and innovation in this arena is a key priority.

In addition to overseeing and guiding these priority efforts, the Project Manager will be generally responsible for performing various research and coordination activities associated with the expansion and development of the H2O platform.   Primary substantive responsibilities will be to: (a) oversee the development of new materials as described above, including interfacing with faculty, coordinating an intern team and working closely with the existing H2O team; (b) drive the development and implementation of Phase 2 technical features and enhancements.

Additionally, the Project Manager will manage the strategic project planning and implementation, including evangelizing the platform with a particular focus on professors who are currently using it, and outreach to those who may consider it in the future; driving fundraising efforts in support of the next phase of the project; and working with the team to develop communications around new developments, with the goal of spreading H2O’s use across diverse courses and disciplines around the University.

This is a term-limited position ending June 30, 2013; continuation contingent upon project status and finding.

Basic Qualifications   

Candidate must have experience in project management, including leading/working across diverse teams.

Additional Qualifications   

Advanced degree in law is strongly preferred.  Experience doing technical, substantive and organizational work for non-governmental or academic organizations strongly preferred, in addition to experience in managing and guiding participating researchers or collaborators.  Technical experience and facility also a plus, in addition to curriculum creation experience.

Candidate must pay great attention to detail and be highly organized.  Ability to work under tight deadlines a must.  Excellent writing, editing and proofreading skills required. Candidate would thrive in dynamic, entrepreneurial, self-motivated environment. Must be a team player, able to work alone and in teams.

About the Berkman Center for Internet & Society:

The Berkman Center for Internet & Society at Harvard University is a research program founded to explore cyberspace, share in its study, and help pioneer its development. Founded in 1997, through a generous gift from Jack N. and Lillian R. Berkman, the Center is home to an ever-growing community of faculty, fellows, staff, and affiliates working on projects that span the broad range of intersections between cyberspace, technology, and society. More information can be found at

About the Harvard Library Innovation Laboratory at Harvard Law School:

The Harvard Library Innovation Laboratory implements in software ideas about how libraries can be ever more valuable. The Lab works in three broad areas: thinking in public, building software that demonstrates how libraries can bring yet more value to scholars and researchers, and amplifying our effect by eagerly partnering with other groups with similar passions. More information can be found at

About H2O:

H2O is a Web-based platform for creating, editing, organizing, consuming, and sharing course materials. H2O is based on the open source model, a method of writing software that relies on the strength and skills of a community, rather than a single person, to develop a product. Instead of locking down materials in formalized casebooks, we believe that course books should be “free” (as in free speech) for everyone to access and build upon. Using H2O, professors can freely pull together materials for a course by selecting cases, editing those cases to the sections that are most relevant, and grouping them into readings. Once the materials are assembled, they can be copied in part or in whole by other interested faculty and then edited further.  H2O has been successfully piloted in Professor Jonathan Zittrain’s 1L Torts class, and will be rolling out further over the coming year. More information can be found at

Posted on April 12, 2012 in IP by Brian RoweComments Off

Our friends over at Public Knowledge are holding World’s Fair Use Day next month:

3rd Annual World’s Fair Use Day

May 4th, 9:00 am – 6:00 pm, Pew Charitable Trusts Conference Center

Join Public Knowledge for our third annual WFUD, a day-long celebration of fair use, creativity, and remix culture!

This year’s WFUD will feature panel discussions on the importance of fair use to journalism, fashion, and poetry.

Former Poet Laureate Robert Pinsky and producer of Everything is a Remix Kirby Ferguson are our fabulous keynote speakers.

Posted on March 28, 2012 in IP by Comments Off

TechWorld reports that Graphics Properties Holdings, the post-bankruptcy incarnation of Silicon Graphics, is suing mobile device makers for infringement of a graphics-related patent. Smartphone manufacturers are no strangers to patent lawsuits, of course, but I think that this latest salvo is a good illustration of how the dual regimes of patent law and rent-seeking litigation do nothing but divert resources from actual innovation.

The patent in question, number 8,144,158, describes a “rendering circuit,” the novelty of which appears to lie in the use of floating-point rather than fixed-point data to create images, thereby allowing for more complexity and accuracy in the resulting images.

As an absolute layman in the field of graphics technology, all I want to point out in the actual patent is this: the “Background Art” section of the patent description points out that the advantages of operating with floating-point data are well-known, and that a large part of the reason why floating-point data was not previously used lay in hardware limitations. A good question, then (and one that the manufacturer’s lawyers are probably studying like crazy), is whether a graphics person would think it obvious to use floating-point data in the way the patent describes, given the existence of suitable hardware. If it would have been obvious, then the patent should be invalidated under Section 103 of the Patent Act. If not, then Graphics Properties, under the law, and assuming nothing else is wrong with the patent, is entitled to damages and/or possibly an injunction.

Either way there is a clear policy problem – the fact that low-quality patents enter the system and cause wildly objectionable allocations of resources (either through unjustified licensing fees paid to avoid litigation, or the litigation costs incurred in correcting the patent office’s mistake), or the fact that a company that doesn’t practice or in any way promulgate its invention has rights against a party that does give the public the benefit of the invention. The second problem would be mitigated somewhat, at least morally, if so-called “innocent infringers” were protected – but they aren’t.

Timothy B. Lee points briefly but eloquently to the moral argument against patents, and more importantly, sets that moral argument atop a strong empirical showing that figuring out the patent morass is essentially impossible in certain fields. Graphics Properties might have an enforceable patent – but Apple, Samsung, HTC, and others put the invention in your pocket. Enforcing the patent, if it’s valid, doesn’t promote progress, or magically force companies to innovate more – it removes that invention from the field, it forces practicing companies to spend money to license or attack the patent, or “innovate around” it – or simply stop using that presumably beneficial invention. Mark Lemley posits that innovation occurs despite patent law – because companies simply ignore it. Here, patent law is an agent of stagnation – it allows the ghosts of companies past to haunt companies that actually do things. As a society, we probably should not be empowering ghosts.

Posted on February 23, 2012 in copyright, IP, Patent by Comments Off

Last week, the Washington Post reported that the Smithsonian Institution had acquired historical materials from V.A. Shiva Ayyadurai, the inventor of e-mail. One problem: As TechDirt points out, lots of knowledgeable people deny that Mr. Ayyadurai actually invented e-mail.

TechDirt’s article discusses who actually invented email, and why Mr. Ayyadurai’s claim is false. This post focuses on how the dispute illustrates how intellectual property law can throw a wrench in the way people outside of the legal system come to conclusions about issues of creation, authorship, and invention. Responding to comments about its article, the Washington Post issued a “clarification” reading thus:

A number of readers have accurately pointed out that electronic messaging predates V. A. Shiva Ayyadurai’s work in 1978. However, Ayyadurai holds the copyright to the computer program called“email,” establishing him as the creator of the “computer program for [an] electronic mail system” with that name, according to the U.S. Copyright Office.

This is akin to saying “hamburgers predate Ronald McDonald’s work, however, McDonald holds the copyright to a clowning routine, involving the production of hamburgers, called “hamburger,” establishing him as the creator of a ‘clowning routine for placing beef patties between pieces of bread’ with that name.” More than that – it would seem that, at the Washington Post, this reasoning would support a claim that McDonald invented hamburgers.

The TechDirt article notes that the non-clarifying clarification appears to conflate copyrights with patents. The Washington Post, in that case, would be confusing invention with authorship, which is somewhat alarming, coming from a newspaper.

The Post’s description of Mr. Ayyadurai’s stance on intellectual property issues is similarly disheveled. Mr. Ayyadurai says, “I fundamentally do not believe in the patenting of software. It would be like Shakespeare patenting the tragic love story.” He “prefers copyright, which allows others to innovate using the technology.” The first position is relatively uncontroversial, even though it ignores the fact that Shakespeare never could patent the tragic love story, at least not in the United States, and that American courts have, in theory, never embraced software patents that embody nothing more than abstract ideas without concrete application.

The second position, his preference for copyright, is more problematic, because copyright does not protect, or even address, technological innovations. Any usefulness, or utility, described by a copyrighted work must be patented in order to be protected .What copyright protects is individual, singular expression. In other words, it prevents others from appropriating the language an author uses to express a concept or idea. Shakespeare could stop others from copying Romeo’s monologue at Juliet’s balcony, not the idea that a hormonal teenage boy mght do romantic but embarrassing things to woo a girl. Similarly, copyright in software prevents copying, not the use of any innovations described.

The Post also comments that, “by pursuing a copyright on his email work, Ayyadurai opened it up for use, but with credit.” Copyrights are not pursued as patents are; all works of authorship are protected by copyright, whether or not the author registers his work with the Copyright Office, or even places notice of copyright on his work (the © symbol, for instance). Registration is really just a way to ensure that the author is able to sue for money damages should infringement occur. Also, a right to attribution (crediting the author) is not inherent in American copyright law, except in certain cases involving visual artists.

When legal concepts seep into social discourse – here, by underpinning the Post’s assertion that Mr. Ayyadurai invented e-mail, they interact with and modify non-legal concepts. In this case, to have invented something is equated with getting a copyright. This is wrong, as a matter both of law and of plain language. It points to a failure of intellectual property law as a mediating force between creators and the public at large – if no one, not even knowledgeable groups like the Washington Post, really understands what patents, copyrights, and trademarks are, or if misapprehensions such as those illustrated above become common, then how can IP law really incentivize creation and disincentivize misappropriation? It can’t – it simply breeds costly and inefficient litigation that settles specific cases, without clarifying the law for other parties. Shouldn’t laws that encourage technology, literature, and progress in general do better than that?

Posted on February 6, 2012 in IP by Comments Off

Two recent developments of interest for those interested in copyright law: The Association of Research Libraries (ARL) recently unveiled their new “Code of Best Practices in Fair Use for Academic and Research Libraries,” and the Supreme Court handed down its decision in Golan v. Holder.

The Code is an excellent overview of the position academic and research librarians take with respect to the interaction between their mission and copyright law. It does, however, take a more aspirational than legally pragmatic view of fair use issues. For instance, it states that “[f]air use is a user’s right.” Though it is certainly true that fair use is an important legal doctrine, and close to the core of any analysis of U.S. copyright law, it is not actually a right given to users – it is an exception to a right given to copyright owners, an affirmative defense that may cure an otherwise infringing use. Despite this prescriptive bent, the code is a great, example-based way for nonlawyers to engage with fair use issues.

The decision in Golan upheld the removal of a number of works from the U.S. public domain, the result of lawmaking designed to bring the U.S. into alignment with the requirements of the Berne Convention. Bracewell & Giuliani have published an analysis of the case that sets out a core component of the Court’s holding: First Amendment concerns do not really come into play, in the copyright context, unless either the idea/expression dichotomy or fair use are threatened.

Thus Golan gives Congress broad discretionary power over copyright, enough to cut into the public domain. At the same time, it is a reassurance that the fair use defense is and will remain a central feature of American copyright law. The Code of Best Practices, despite presenting a somewhat idealized notion of fair use, is a proactive step towards intellectual engagement with a legal doctrine, by the professionals that have the greatest stake in its continued viability. As copyright terms extend and the public domain shrinks, a continued – and aggressive – discussion of the contours of fair use will be critical in ensuring that culture remains accessible to all.

Posted on January 31, 2012 in copyright, IP, Pubilc Interest by Comments Off

Although the United States recently (and successfully, for the time being) shelved SOPA, Ireland now faces the same threat. Although U.S. detractors of SOPA had the luxury of attacking the bill as it made its way through Congress, Irish supporters of a free Internet find themselves with less opportunity to object – and much less time.

Ireland’s version of SOPA is not the equivalent of a Congressional bill; instead, it is a statutory instrument(SI), a piece of secondary legislation “made in exercise of a power conferred by statute.” What this means is that the legislation will not be considered by the Oireachtas, the legislature of Ireland, before passing into law. Instead, an emergency debate on the SI has been heard in the Dáil, the lower house of the Oireachtas.

A brief history of “Ireland’s SOPA:” In EMI Records v. UPC Communications, the High Court of Ireland determined that “Ireland is not yet fully in compliance with its obligations under European law.” As per the court’s analysis, European law requires the provision of injunctive remedies against internet service providers who facilitate copyright infringement, and such remedies are absent in Irish law. The proposed statutory instrument is being shepherded by Sean Sherlock, Minister for Research and Innovation of the Department of Jobs, Enterprise and Innovation. The SI would amend the Copyright Act of 2000, giving the judiciary broad powers to grant injunctions against “intermediaries,” such as ISPs, forcing the blocking of target websites.

The Internet Service Providers Association of Ireland has issued a letter objecting to the SI, and TJ McIntyre has posted a FAQ describing what is known about the text of the new instrument (not much, but he includes language from a previous draft) and what the implications of its passage may be. In a nutshell, Ireland’s SOPA may allow courts, when petitioned by copyright owners, to order ISPs and other “intermediaries” to block access to infringing content. He has also commented on the inadequacy of an emergency debate as a substitute for true deliberation.

In some ways this proposed SI is more insidious than SOPA – the provisions of SOPA allowed opposing groups to understand, to a point, how the legislation worked, and what it might allow copyright owners to demand. This SI does not define what the judiciary may order in any injunction, nor does it say what may not be ordered. Uncertainty and a lack of transparency is a large part of the argument against the SI.

During the debate, a number of deputies voiced the concerns noted by Mr. McIntyre and others – notably, the vague language of the SI, as well as potential negative effects on smaller ISPs and sites that post user-generated content. One of the centerpieces of Minister Sherlock’s defense was the idea that the SI “clarifies” preexisting policy – that the EMI v. UPC ruling: (1) exposes Ireland to legal action for alleged non-compliance with European law, and (2) the SI simply closes the hole exposed by the High Court ruling, rather than creating a new remedy for copyright owners. He also emphasized that there are no plans to change the wording of the SI, and that there are no plans to delay its enactment.

Despite the real – and significant –  differences between the proposed SI and SOPA, they both seek an expansion of governmental power to control what is available on the Internet, and they both do so in a manner that leads to legitimate objections including: overly broad remedies for copyright owners at the expense of the public interest; the imposition of burdensome costs on ISPs and other intermediaries; and a chilling effect on Web-based innovation, creativity, and business founded in legal uncertainties.

More information about a petition to stop “Ireland’s SOPA” here.

Posted on January 30, 2012 in copyright, Free Culture, IP, open education by View Comments

UC Berkeley’s new class notes policy is the equivalent of fighting a kitchen fire with a sledgehammer. Not only is it a disproportionate response, it is an ineffective one as well – one that poses a subtler but greater threat than the fire itself. Berkeley’s policy is not well-supported by federal or state law, and represents a surprising step backwards for the University of California’s flagship campus.

Copyright Permit Required At All Times
(Image by Mike Linksvayer)


The policy states that “[i]ndividual instructors retain copyrights to lectures and class presentations, class materials they create, and related material pursuant to U.S. copyright law, California Civil Code § 980 (a)(1), and the University of California’s Policy on Copyright Ownership.” This language invokes three separate wellsprings of authority – federal, state, and institutional. A brief look at each in turn:

Section 102 of the federal Copyright Act informs us that copyright protect subsists, in general, “in original works of authorship fixed in any tangible medium of expression . . . .” The key term for our purposes is “fixed,” which pushes many, if not most, typical classroom lectures out from under the copyright umbrella. Extemporaneous presentations, unless recorded in some manner, do not get copyright protection.

California Civil Code §980 does grant ownership rights on unfixed presentations: “[t]he author of any original work of authorship that is not fixed in any tangible medium of expression has an exclusive ownership in the representation or expression thereof . . . .”  Although the federal Copyright Act, in section 301, explicitly preempts state laws that provide similar rights, §980 avoids such preemption by dealing with works explicitly unprotected by federal copyright. It does look like a good foundation for the Berkeley policy, but the U.S. District Court for the Central District of California has found that §980 reflects a legislative intent “to deny copyright protection to ideas, as opposed to the manner in which they are expressed or represented.” (See page 1423 of the opinion) This preserves the core idea-expression dichotomy that prevents copyright law from protecting ideas and facts, rather than a specific expression of them. In essence, we can say that §980 effectively extends federal copyright-type protection, within the state of California, to unfixed works of authorship, but with limitations on subject matter analogous to those created by §102 of the Copyright Act.

Finally, the University of California’s copyright policy is more a policy statement than a grant of unique institutional rights. It states, in part: “The University encourages the creation of original works of authorship and the free expression and exchange of ideas.” Reasonable minds may disagree on whether copyright protection promotes or stifles the creation of original works, but Berkeley’s policy is an incontrovertible shackle upon students’ ability to engage in any exchange of ideas based upon those works.

How might a judge apply these laws? Faulkner Press v. Class Notes, a federal case in the Northern District of Florida, in which the defendant (a notes reseller) sold note packages including a significant amount of material copyrighted by Professor Michael Moulton. This material was prepared and recorded beforehand, and properly the subject of federal copyright protection. Judge Mickle informs us that fair use is a potential stumbling block for the sort of broad prohibitions embodied by Berkeley’s policy:

Even though the film study questions and practice questions are protected by copyright, genuine issues of fact remain as to whether inclusion of the questions, as well as the lecture summaries, within Class Notes’ note packages constitutes fair use…. Dr. Moulton’s works as a whole are derivative, factual, and published. Furthermore, his film study questions and practice questions are factual compilations. Copyright protection extends only to the selection and arrangement, not to the underlying facts themselves, and “[t]his inevitably means that the copyright in a factual compilation is thin.” Feist. 499 U.S. at 349. So in determining fair use, this factor will weigh against Faulkner Press.

With respect to California state law, some proponents of expanded professorial control over academic presentations find support in the ruling of the California Supreme Court in Williams v. Weisser, a 1969 case in which the court ruled in favor of a plaintiff professor against a note reseller defendant. Two points tend to weaken that support: first, the case predates the Copyright Act of 1976, which expressly preempts state laws that grant analogous rights and remedies. Second, the Court in Williams did not rely upon the protection of unfixed works granted by §980:

This is, therefore, not a case where the concrete expression of the “composition” (Civ. Code, § 980, subd. (a)) consists solely of an intangible oral presentation. (Nimmer on Copyright § 11.1.) As far as this litigation is concerned, the chief importance of the oral presentation is that it provided defendant with access to plaintiff’s work and with an argument that there had been a divestive publication.

Taken together, these two points mean that the common-law copyright jurisprudence applied in this case, in favor of the plaintiff, would today be preempted by federal statute.

A good look at the statutes and their application by judges should be enough to demonstrate that, if they try to exercise the “rights” granted by the Berkeley policy in a court of law, professors shouldn’t rely on an easy victory.

In the next installment: a discussion of the public policy issues that underlie the Berkeley notes policy, and how a licensing-and-permissions-based policy is more in line with the interests of educators and students than a rights-and-restrictions-based one. Also – to what extent do students and professors actually care what school policies say, and how should that inform the content of such policies?


Posted on September 15, 2011 in copyright, Fair Use, IP by Comments Off

A brief opinion on the Mackie/Hipple settlement, by a law student standing on the shoulders of giants.

The facts, as best I know, go something like this: about 32 years ago, Seattle artist Jack Mackie used public funds to create the “Dance Steps on Broadway” sculptures. These bronze footsteps in the concrete taught pedestrians how to do dances like the Rhumba and Foxtrot on the sidewalks lining Broadway in Seattle’s Capitol Hill. Mackie showed his litigious side in 1996 when he stopped the Seattle Symphony Orchestra from using an image of his sculpture in a promotional mailer. ) In 1997, Seattle photographer Mike Hipple took a photograph of someone’s feet on Mackie’s sculpture and put it on a stock photograph website for sale. Mackie sent a cease and desist, which Hipple complied with and subsequently destroyed all copies of the contentious photo. However, this action was not enough for Mackie because last year he decided to sue Hipple for copyright infringement over the photograph. Hipple decided to settle rather than fork over the time and money necessary to defend a claim of copyright infringement.


It was unfortunate that Hipple felt compelled to settle. (, it is understandable as Hipple would have been at the mercy of the courts, and thus faced a chance of being sued for the statutory damages. Under the copyright statute 17 USC § 504,(—-000-.html) statutory damages for copyright infringement can range anywhere from $750 to $150,000. I am not aware of Hipple’s personal financial situation, but the chance of having to owe $150,000 is a hard pill to swallow for any artist. (


The unfortunate part is that Hipple stood a fairly strong chance to gain some revolutionary ground in copyright law. Had this claim escalated to litigation, a holding that Hipple’s photograph was transformative would have been groundbreaking. To have the statutory damages cause an artist to shy away from defending the progression of his art directly infringes on the main constitutional policy of copyright law to “promote the progress of …useful arts.” US Constitution, Article I, §8.


In his dissent written for Sony Corp of America v. Universal City Studios, Justice Blackmun stated that “the goal of copyright, is generally furthered by the creation of transformative works.” Hipple’s photograph has transformed Mackie’s sculpture in such a way that does not infringe on the sculpture’s copyright. Hipple’s photograph is a prime example of fair use:


The first factor of fair use requires analysis of the purpose and character of the use. Hipple had placed his photograph on a commercial, stock photograph website, the purpose of his use would be considered commercial by the courts. This factor would weigh in favor of Mackie; however, In Folsom v. Marsh, Justice Story stated that the character of the use should consider the transformation of the art. If one considers the transformative character in the first factor then this factor should actually weigh in favor of Hipple. Hipple’s photograph takes the original sculpture, puts feet on it to show its functional use, and photographs it; thus remixing and totally transforming the sculpture. Hipple’s remix of the sculpture creates a whole new expression in the photograph and that new expression should be protected. In a culture that builds off of itself, where no art is truly original, it is important for artists (like Mackie) to recognize and appreciate when other artists uses their art in a transformative way. If anyone should appreciate the transformative aspect of art building on itself it should be Mackie, as I am certain he was not the artist who created the Foxtrot or the Rhumba. Furthermore, the practice of drawing tutorial footsteps originated in dance studios long before Mackie took the idea to the streets.


When looking at the second factor of fair use, the nature of the copyrighted work, courts  evaluate the value of the materials used and how close that value is to the core of intended copyright protection. The closer the work is to the core values, the more difficult it is to establish fair use. The intent of copyright protection is to foster creative and original creation.  Mackie’s Dance Steps are not exactly novel, as mentioned previously, Mackie’s sculpture is remixed art.  Thus why does his reworking of previous art deserve stifling protection to hinder another artist from doing the same thing?


Further, the court in Campell v Acuff Rose states that the second factor is of less (or even no) importance when assessed in the context of certain transformative uses. Hipple’s photograph is merely taking Mackie’s transformative sculpture, of tutorial dance steps, a step further; thus any “creativity” Mackie had in placing the Dance Steps in concrete should be irrelevant in a fair use analysis. Like the parody protected in Campell, it was necessary for Hipple’s photograph to use Mackie’s sculpture; the feet needed the Dance Steps. By placing the feet in the photograph with the Dance Steps, Hipple transformed a three dimensional sculpture into a two dimensional photograph catching a pair of feet putting the sculpture to the functional use of original dance tutorials. Hipple’s photograph essentially catches the dance steps serving a practical purpose, to teach pedestrians how to do the dances sculpted. Due to this practical use, the Dance Steps on Broadway should receive a very low level of copyright protection, in any. Hipple’s photograph can also be compared to a criticism of Mackie’s sculpture, alluding to its natural predecessor.


The third factor of fair use requires the court to analyze the amount and substantiality of the portion of the copyrighted work taken and whether that amount was reasonable in relation to the purpose of the copying. Mackie filed one registration for the several Dance Steps on Broadway sculptures with the United State Copyright Office. (,2&SC=Author&SA=Mackie%2C%20Jack%2C%201946%2D&PID=DrhimXv0qR34QHdIdM7aY3B6hGFO&SEQ=20110801120756&SID=3) (What I believe to be) the infringing photograph uses merely a blurred out portion of one of these sculptures.(

*All images were added under fair use.  This is a noncomercial, educational post.