Friday, April 11, 2014

If Intellectual Property Is Neither Intellectual, Nor Property, What Is It?

An interesting discussion on the concept of "intellectual property" by Mike Masnick (from

Continuing my ongoing series of posts on "intellectual property," I wanted to discuss the phrase itself. It's become common language to call it intellectual property, but that leads to various problems -- most notably the idea that it's just like regular property. It's not hard to come up with numerous reasons why that's not true, but just the word "property" seems to get people tied up. There are some who refuse to use the term, but it is handy shorthand for talking about the general space.
The main reason why I have trouble with... [read more]

Tuesday, March 4, 2014

Lawrence Lessig Settles Fair Use Lawsuit Over Phoenix Music Snippets

Liberation Music Will Fix Its Copyright Policies and Pay Compensation

San Francisco - Prof. Lawrence Lessig has settled his lawsuit against an Australian record label over the use of clips of a popular song by the band Phoenix in a lecture that was later posted online. Liberation Music, which represents Phoenix in New Zealand, claimed the clips infringed copyright, demanded YouTube take down the lecture, and then threatened to sue Lessig. Represented by the Electronic Frontier Foundation (EFF) and Jones Day, Lessig fought back, asserting his fair use rights in court.
"Too often, copyright is used as an excuse to silence legitimate speech," said Lessig, who serves as the Roy L. Furman Professor of Law and Leadership at Harvard Law School and director of the Edmond J. Safra Center for Ethics at Harvard University. "I've been fighting against that kind of abuse for many years, and I knew I had to stand up for fair use here as well. Hopefully this lawsuit and this settlement will send a message to copyright owners to adopt fair takedown practices—or face the consequences."
The settlement requires Liberation Music to pay Lessig for the harm it caused. The amount is confidential under the terms of the settlement, but it will be dedicated to supporting EFF's work on open access, a cause of special importance to Lessig's friend, Aaron Swartz, a technologist and activist who took his own life in early 2013. The parties also worked together to improve Liberation Music's methodology for compliance with the requirements of the DMCA in the United States. Going forward, Liberation Music will adopt new policies that respect fair use.
Neither party concedes the claims or defenses of the other. Liberation Music included this statement in the settlement agreement:
"Liberation Music is pleased to amicably resolve its dispute with Professor Lessig. Liberation Music agrees that Professor Lessig's use of the Phoenix song 'Lisztomania' was both fair use under US law and fair dealing under Australian law. Liberation Music will amend its copyright and YouTube policy to ensure that mistakes like this will not happen again. Liberation Music is committed to a new copyright policy that protects its valid copyright interests and respects fair use and dealing."
A co-founder of the nonprofit Creative Commons and author of numerous books on law and technology, Lessig has played a pivotal role in shaping the debate about copyright in the digital age. In June 2010, Lessig delivered a lecture titled "Open" at a Creative Commons conference in South Korea that included several short clips of amateur dance videos set to the song "Lisztomania" by the French band Phoenix. The lecture, which was later uploaded to YouTube, used the clips to highlight emerging styles of cultural communication on the Internet.
As a condition of the settlement, Liberation Music submitted a declaration explaining its takedown procedures. Liberation Music had allowed a single employee to use YouTube's automatic Content ID system to initiate the takedown process and then, when Lessig challenged the takedown, threaten a lawsuit. The employee, who did not have a legal background, did not actually review Lessig's video before issuing a threat of a lawsuit.
Liberation Music's new policy will still rely on YouTube's system, but it will ensure that no takedown notice is issued without human review, including fair use considerations. Liberation Music will also limit its copyright enforcement to jurisdictions where it actually owns or administers the copyright.
"This is the policy Liberation Music should have had from the beginning," EFF Intellectual Property Director Corynne McSherry said. "Too many content owners are issuing takedowns and manipulating content filters without respect for the rights of users. This fight may be over, but the battle continues until every content owner embraces best practices that protect fair use."

For more on this case:

About Prof. Lessig:
Lawrence Lessig is the Roy L. Furman Professor of Law and Leadership at Harvard Law School, director of the Edmond J. Safra Center for Ethics at Harvard University and founder of Rootstrikers, a network of activists leading the fight against government corruption. He has authored numerous books, including The USA is Lesterland, Republic, Lost: How Money Corrupts Our Congress—and a Plan to Stop It, Code and Other Laws of Cyberspace, Free Culture, and Remix.

Corynne McSherry
   Intellectual Property Director
   Electronic Frontier Foundation

Friday, February 28, 2014

Casserly steps down as CEO of Creative Commons. Now Paul Brest is interim CEO

You might remember the announcement a few months ago that Cathy Casserly will be stepping down as CEO of Creative Commons this year.
In fact, at the beginning of January CC officially opened the search for the new CEO. Today, at the end of February (exactly three years after the entry of Cathy in CC) the CC blog publish a farewell message by her, explaining that Paul Brest, CC board chair, has stepped up as interim CEO.
My journey with CC has had different segments, contexts, and textures. What I have found so rewarding during this leg as CEO is working closely with our deeply talented and dedicated staff, regional coordinators, affiliates, partners, and supporters.
Together, we have made tremendous progress to create a global footprint of sharing, legally. We continue to extend our reach into critical communities – learning, science, data, and culture – and educate the world about the power of open. And while we have not yet reached our collective mission, we have advanced, and will continue to do so. Here at CC, we have worked hard over the past months to ensure the CEO transition is smooth. The board has the search well underway and Paul Brest, CC board chair, has stepped up as interim CEO. My profound thanks to Paul, both personally and on behalf of the broader community, for his unyielding leadership and support.
So the search for the new CEO is still open. We have to wait some more time to know which direction CC will take in the next years.

Thursday, February 20, 2014

Less may be more: Copyleft, -right and the case law on APIs on both sides of the Atlantic

Abstract: Like any relatively young areas of law, copyright on software is surrounded by some legal uncertainty. Even moreso in the context of copyleft open source licenses, since these licenses in some respects aim for goals that are the opposite of 'regular' software copyright law. This article provides an analysis of the inheritance effect of the GPL-family of copyleft software licenses (the GPL, LGPL and the AGPL) from a mostly copyright perspective as well as an analysis of the extent to which the SAS/WPL case affects this family of copyleft software licenses. In this article the extent to which the GPL and AGPL inheritance clauses have a wider effect than those of the LGPL is questioned, while both the SAS/WPL jurisprudence and the US Google case seem to affirm the LGPL's “dynamic linking” criterium.

A paper by Walter van Holst published in IFOSS Law Review.

Table of content
  • Introduction
  • Legal framework as provided by the GPL family
    • Roles of the GPL family of licenses
    • Bare licenses based on copyright law
  • Analysis and application to libraries
    • Linking mechanisms
    • Transformation and derivation in case law
  • Conclusion


License and attribution
This paper was published in the International Free and Open Source Software Law Review, Volume 5, Issue 1 (MARCH 2013). It originally appeared online at
This article should be cited as follows:
Holst, Walter van  (2013) 'Less may be more: Copyleft, -right and the case law on APIs on both sides of the Atlantic', International Free and Open Source Software Law Review, 5(1), pp 5 – 14
DOI: 10.5033/ifosslr.v5i1.72

Copyright © 2013 Walter van Holst.
This article is licensed under a Creative Commons NL (Netherlands) 2.0 licence, no derivative works, attribution, CC-BY-ND available at
As a special exception, the author expressly permits faithful translations of the entire document into any language, provided that the resulting translation (which may include an attribution to the translator) is shared alike. This paragraph is part of the paper, and must be included when copying or translating the paper.

Survey: Most Italian Internet Users Think Ignoring Copyright Harms Publishers, But Not Society As A Whole

One of the heartening recent developments in the world of digital copyright is that we have moved on from manifestly biased surveys about the evils of piracy and how the solution to everything is harsher punishment for infringement and longer copyright terms, to independent analyses that seek to understand rather than judge and lecture. There's also been a ... [continue]

An article by Glyn Moody for Read the article here.