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Well-known game designer Monte Cook completed a very successful Kickstarter project for Numenera, his new role-playing game. (Full disclosure: I was most definitely a backer, and I have been a fan of Monte Cook for a long, long time.)

Monte Cook Games just released their Fan Use Policy and Limited License. This post by Rob Donoghue at Evil Hat almost perfectly mirrors my opinion on the licenses, and there’s also an excellent follow-up post at the Ninth World blog. Apparently some folks have been fairly upset about the licenses. I’m honestly not all that sure why. I may have some things I would have done a bit differently. I give them a big thumbs up for making the licenses human readable, but there are parts of them to the point where they are technically incorrect by omission. For example, their description of copyright is very, very simple- it ignores copyright exemptions and the role that commercial use plays in determining whether or not something is infringing- but that gets complicated quickly, which seems antithetical to their purpose for writing it that way in the first place. The policy provides simple explanation about how they’re looking at things, though, and it seems like it’s mainly there to help the community understand their views on fan use. I’m also sure they’re going to clarify the dividing line between fan distribution and distribution allowed by the Limited License if it ever comes up, and like Donoghue points out, you can still rely on fair use if you want to make other uses (aside: or that mechanics aren’t covered by copyright)- or of course, you can also talk to the folks at Monte Cook Games. They’re very approachable.

Trademark law basically started out as consumer protection law, but over time has also been turned into a tool for anti-competitive practices. The theory was that consumers should be protected from unscrupulous sellers attempting to pass off their goods as someone else’s. From trademark, we get concepts like false advertising, brand dilution, consumer confusion (…there’s a concept actually called a moron in a hurry, when looking at how likely someone is to be confused), and so on. People can trademark things like logos, phrases, brand names- basically, something that is associated with things sold: goods and services and the sources of those goods and services.

There are registered and unregistered (common law) trademarks. Common law trademarks are more limited then their federally registered counterparts- they’re developed merely by using the trademark commercially, not registered, and usually related to a specific geographical region. They also lack some other statutory protections. For something to act as a trademark, it usually needs to be involved in trade- actual commerce. And not only does it need to be involved in trade, but it needs to be involved in trade in a specific commercial area. Apple Computers (now Apple Inc.), for example, didn’t have to worry too much about competing with the very different company Apple Music (owners of the Beatles catalog) until it got involved with iTunes and the music industry, and then those companies had to work things out because they were competing in the same area. And neither of them should be too concerned with people selling the fruit. Trademark does not have much to do with creativity- that’s largely copyright’s bailiwick- and, in fact, things can at times be trademarked that other people created, even against their wishes.

One of the things about trademark, though, is that unlike copyright and patents there is an obligation for trademark holders to protect their trademarks. Generic terms can’t be trademarked- and once a term has become generic, then it loses its trademark protection (this process is sometimes referred to as trademark erosion). Aspirin. Elevator. Kerosene. Zipper. All of those were once trademarks that have been lost. That’s why trademark holders for Kleenex, Band-Aids and Xeroxes try very hard to make sure that those terms don’t become generic. Even given all that, though, there are limits.

There’s this idea that all uses of a trademark have to be policed. Several years back, Cory Doctorow referred to this as “a fairy tale that trademark lawyers tell their kids at night to reassure them that they’ll have a healthy college fund.” It’s not true for every use. If someone isn’t using the term in a competing commercial space, for example, then the terms does not have to be protected. Trademark holders do not have the right to police others use of the works in other spaces- and there a concept of fair use with trademarks, as well. For example, you can absolutely use trademarks to describe what they’re actually intended to describe. I can use the trademarked name “Games Workshop” to talk about Games Workshop. And beyond all that- and a lot of lawyers who should know better seem to forget this- you don’t have to be a jerk about it when you do decide you need to act.

So, “Space Marines.” Space Marines is a term that has been around for some time in fiction. It’s also a term used by Games Workshop in its miniatures and games lines. Games Workshop does have a registered trademark for space marines for those lines- but although they’ve created fiction involving their space marines, they do not have a registered trademark in the book/ebook space. In this kerfluffle, they contacted Amazon to take down a book that used the term “space marine” in the title. Why? What they seem to be attempting to assert in this situation is that they have common law trademark in the term “space marine” in books and ebooks. Essentially, they appear to be arguing that anyone who thinks “space marines” in fiction should think “Games Workshop.” They seem to be trying to un-genericize the term and create a carved out commercial space for them and then alone, excluding others, which according to their press release is because they have a duty to their shareholders. This is a Bad Thing for many reasons, and the whole event illustrates some of the problems with the system and the law that I alluded to in my last post.

First, of course, there’s the obvious idea that they’re taking a term with a rich history in fiction and attempting to privatize it. There’s a power discrepancy between Games Workshop and the indie author. There’s also the idea that Games Workshop has to be predatory in this manner to appease their shareholders. That’s silly- negative publicity will also hurt their profits. That’s one reason why the controversy is important- people have to show GW and others that this type of behavior isn’t acceptable. And people have reacted. There’ve been author complaints, blost posts, news articles, comments- I even discovered that someone at my school had been a fan of Games Workshop fiction, who has now sworn off of them. That’s bad for everyone.

So far, all GW has done is double down- they’ve reiterated that they were right to do this, and for a time they also deleted and banned people who commented on their Facebook wall about it. They even banned a fellow academic who was only asking for their side of the story. They are allowing comments on their explanation, but they’re sticking to their guns. That’s not good corporate behavior. While their actions might be technically legal, that doesn’t make it right.

Now, Amazon also messed up. Games Workshop sent them a cease-and-desist, and they unnecessarily complied. While there IS a notice-and-takedown provision for taking down copyrighted material, there is no such equivalent for trademarks. They’ve since made the book available again, possibly thanks to some help from EFF. And Spots the Space Marine by MCA Hogarth has received a lot of attention, and portions of sales are donated to the Wounded Warrior Project, so there’s some positives there. Let’s hope Games Workshop learns something, too.

If you’ve been paying attention to geek-related news, you may have read about the following stories:
*“Glee” used a version of Jonathan Coulton’s “Baby Got Back” without credit, payment, or other acknowledgment.
*Games Workshop had Amazon take down an indie book because the author used the term “Space Marine” in the title.

These stories provoked outrage among various groups of fans and other folks on the Internet: it’s evident that *something* isn’t right, or fair going on in each of these situations. I see the problems as related to a) the law, and b) how legal practices work, e.g., tends to favor those with money.

The Coulton event (2) primarily deals with copyright. The Games Workshop event primarily deals with trademark. These are related subjects, but they are quite different legally. Popular articles/accounts often confuse the two. I’ll talk about each in turn.

Let’s look at the copyright issue. Copyright is my area of study. My favorite copyright attorney once described copyright to me as “arcane” (2) and “labyrinthine.” It can be confusing, understood by few and overly complicated. Over time, it’s played a bigger and bigger role in people’s everyday lives. Whereas in the 70s, I’m told, you would have to exert yourself to find a story about copyright in the news, today I go through several a day. So, here’s a quick and dirty look at the situation:

COULTON & GLEE

Jonathan Coulton probably used what’s referred to as a statutory compulsory mechanical license to cover Sir Mix-a-Lot’s “Baby Got Back” a few years ago. Glee then copied that arrangement for an episode. What’s that all mean?

So, copyright covers several uses of a work. Absent an exception (3), such uses are the exclusive right of the copyright holder (4). One of those rights is the creation of a derivative work, which to keep things simple we’ll say a work based on an already existing work. However, once upon a time Congress cared about making sure that copyright holders couldn’t completely lock down content. Cover songs have a special place in copyright law (5). Basically, the copyright holders of a song (6) cannot stop someone from making a cover song provided the person making the cover song uses the statutory compulsory mechanical license. Statutory = in the actual statute. Mechanical = making a “mechanical” reproduction of the song (the term is from sheet music days, but basically means making a copy). Compulsory = the copyright holder cannot deny this use if the law is followed. The person making the cover has to pay a compulsory rate to the song writer, the amount of which is determined by the Copyright Royalty Board every few years. The total amount is based on things like the number of copies sold, the number of people who hear the song, and so on.

So Jonathan Coulton called up the Harry Fox Agency (the group that usually handles the compulsory license) and got a license to make a cover of Baby Got Back.

So if you’re not lost yet, now it gets complicated. =P

While the compulsory license does allow you to create a reinterpretation of the work, it does not allow you to change “the fundamental character” of a work with your reinterpreation (which can lead to legal fun), and more on point, the statute (17 USC 115(a)(2)) explicitly does not convey additional copyright protection to the new arrangement without consent of the copyright holder. So unless Coulton got permission from the copyright holder of Baby Got Back, then he doesn’t have copyright protection for his arrangement.

So, Glee basically got the same or a similar license from the Harry Fox Agency, and since Coulton didn’t have copyright protection in the arrangement, they could legally use the arrangement without legal hassle.

He might have some protection if they actually used his tracks, though, because unlike the arrangement, those specific recordings ARE probably protected by copyright. And that’s probably what he’s looking into.

The other thing to remember is this: in most situations, license trumps copyright law. If the specifics of Jonathan Coulton’s license come into play at all, a lot of the legal issues can’t be figured out by looking at the statute.

So… is what Glee did legal? Maybe, if they didn’t use the exact recordings (which is in dispute). Is it fair and/or ethical? Heck no. This is one of those disconnects between law and fairness. Coulton should be getting credit for his arrangement without having to shame Fox.

1. …The Coulton Event is the name of my Paul & Storm cover band… *drumbeat*
2. Definitely arcane. The next time your party wizard starts going off about magic, pretend he’s talking about copyright and RP accordingly.
3. There are many exceptions. Don’t think that copyrights are the be-all and end-all; these exceptions are important.
4. The copyright holder is not necessarily the author/creator. Keep that in mind.
5. And the Abyss.
6. And songs can have lots of copyright holders. The song writer, the lyric writer, the performer… it takes a village, people.

danah boyd: http://www.zephoria.org/thoughts/archives/2013/01/13/aaron-swartz.html

Timothy Burke: http://www.insidehighered.com/views/2013/01/15/essay-role-academe-tragedy-aaron-swartzs-death

Barbara Fister: http://www.insidehighered.com/blogs/library-babel-fish/if-lives-depended-it

Scott Jaschik: http://www.insidehighered.com/news/2013/01/14/academe-reacts-aaron-swartzs-suicide

David Karpf: http://www.shoutingloudly.com/2013/01/14/remembering-aaron-swartz/

Matt Stoller: http://www.nakedcapitalism.com/2013/01/aaron-swartzs-politics.html

Democracy Now: http://www.democracynow.org/2013/1/14/an_incredible_soul_lawrence_lessig_remembers

MIT: http://www.theverge.com/2013/1/13/3873352/mit-announces-internal-investigation-into-its-role-in-aaron-swartz

Remember Aaron: http://www.rememberaaronsw.com/

http://chronicle.com/blogs/ticker/academics-memorialize-aaron-swartz-with-open-access-uploads/54171

Cory Doctorow: http://boingboing.net/2013/01/12/rip-aaron-swartz.html

James Grimmelmann: http://laboratorium.net/archive/2013/01/12/aaron_swartz_was_26

Brewster Kahle: http://blog.archive.org/2013/01/12/aaron-swartz-hero-of-the-open-world-rip/

Jeff Kramer: http://www.jeffkramer.com/2013/01/12/remembering-aaron-swartz/

Lawrence Lessig: http://lessig.tumblr.com/post/40347463044/prosecutor-as-bully

John Schwartz: http://www.nytimes.com/2013/01/13/technology/aaron-swartz-internet-activist-dies-at-26.html?pagewanted=all&_r=0

Christopher Jon Springman: http://www.theknockoffeconomy.com/r-i-p-aaron-swartz/

Alex Stamos: http://unhandled.com/2013/01/12/the-truth-about-aaron-swartzs-crime/

EFF: https://www.eff.org/deeplinks/2013/01/farewell-aaron-swartz

So, quick break from my self-imposed hiatus to mention the near-worthless Special 301 Report put out annually by the United States Trade Representative. This report has been part of a trend of increasingly using trade pressure to convince countries to come up stronger copyright and related laws. It reads like a special interest wish list; it essentially praises the creation of barriers that are even in excess of what the US imposes on itself (see Spain’s recent actions, lauded in the report, also the result of undue US pressure).

Canadian Professor Michael Geist’s 2010 response is still appropriate- and he’s written another great analysis for this year’s report.

We’re never going to have a real conversation in the political sphere as things stand. We should be talking about relationships between authors, publishers, and distributors in the digital environment. We should be talking about the appropriateness of copyright-related remedies and their impacts on our society. We should be talking about the costs of access to scientific literature. We should be talking about authors’ rights in a meaningful way. Although we’re having those conversations, they’re mostly not initiated by policy makers. Instead, we get junk like this. We get secretive trade treaties where the public and public groups are left out of the discussion entirely. We get an environment where real meaningful dialog is absent.

University of Michigan to start releasing orphan works.

This news is pretty incredible- most institutions are risk averse, and it’s hard to blame them. As they point out, though, not sharing this works is harmful to scholarship and learning, while sharing them probably doesn’t harm anyone. But now we get to see what happens when an institution tries this type of action, and I’m very impressed that they’ve put themselves out there like this. And although I don’t have personal knowledge of what’s going on here, I’ll bet they do have plans and policies for what happens when an author or rights holder is found.

From the “No kidding?” department, apparently, the GAO agrees that doing this type of research is tough in their new 41 page report. ^_- I actually think they did fairly well in pointing out some of the problems in these research methodologies.

Three widely cited U.S. government estimates of economic losses resulting from counterfeiting cannot be substantiated due to the absence of underlying studies… no single method can be used to develop estimates. Each method has limitations, and most experts observed that it is difficult, if not impossible, to quantify the economy-wide impacts. Nonetheless, research in specific industries suggest that the problem is sizeable, which is of particular concern as many U.S. industries are leaders in the creation of intellectual property…

…We determined that the U.S. government did not systematically collect data and perform analysis on the impacts of counterfeiting and piracy on the U.S. economy and, based on our review of literature and interviews with experts, we concluded that it was not feasible to develop our own estimates or attempt to quantify the economic impact of counterfeiting and piracy on the U.S. economy.

Leaving aside some of the possibly questionable assumptions inherent in the type of questions Congress wanted the GAO to examine, let’s look at the numbers. So, already existing government numbers?

Three commonly cited estimates of U.S. industry losses due to counterfeiting have been sourced to U.S. agencies, but cannot be substantiated or traced back to an underlying data source or methodology.

Well, those are some favorite cited numbers- what else do we have? How about the BSA?

While this study has an enviable data set on industries and consumers located around the world from its country surveys, it uses assumptions that have raised concerns among experts we interviewed, including the assumption of a one-to-one rate of substitution and questions on how the results from the surveyed countries are extrapolated to nonsurveyed countries.

MPAA Studies?

It is difficult, based on the information provided in the study, to determine how the authors handled key assumptions such as substitution rates and extrapolation from the survey sample to the broader population.

At least there was one academic paper cited in this area.

The study indicated that downloading illegal music can have a positive effect on total consumer welfare. However, as explained by the authors, this experiment cannot be generalized; the data consist of a snapshot of undergraduate students’ responses, which is not representative of the general population.

Yup. Possible positive effects, but you can’t necessarily extrapolate those findings to the public. That’s important when looking at these types of studies- they’re not necessarily generalizable. That’s pretty much a constraint of ANY study of this type, including the others mentioned that had highly questionable assumptions and equally questionable methodologies. The lack of generalizability doesn’t mean that the study isn’t useful- you can still plan courses of action at least informed by such studies, and of course you can plan to do additional research.

I think that it’s really important that people use real numbers when making arguments about what law and policy should accomplish. The problem is, people don’t really seem to have any kind of incentive to do that. Law and policy seem to be made on talking points related to the horrible numbers and other appeals to emotion not based on evidence, and that is a shame.

Appropriately enough as my students are reading the Open Source Module (previously the Unix & Linux module), Novell has won the jury trial, and did not transfer the copyrights in Unix to SCO. Groklaw continues to be a valuable resource in its coverage of this case and other issues.

This decision hopefully removes what little cloud hung over Linux. The cloud was small because of the lack of evidence of infringement, Caldera’s (then-SCO) licensing Linux under the GPL, and the likelihood that the allegedly copyrighted material could be coded around. It’s still a good thing that Novell won, because SCO could would have caused problems with increased litigation and threats of litigation in any alternative scenario.

Even with the loss, SCO, of course, plans to continue its litigation campaign as it can. I am afraid to predict the death of the organization, because I thought that these issues should have been settled years ago, but somehow it just keeps on going and going and going…

And that wasn’t an April Fool’s joke. Here’s an interesting one from the Austin Chronicle, though:
The End of UT Football
“Governor, Lege order budget cuts; ‘Students must come first,’ says Powers”

which is all the more wonderful/terrible because all of the numbers in the various articles are pretty much accurate.

The instructors of INF 312 find some common problems in student submissions to one of our assignments. Here’s some advice to students. I expect that it may be useful to others.

• Just because it’s educational does not mean that it’s automatically a fair use. I mention this fact in the copyright module, bolded. The educational purpose of your assignment is part of a fair use argument, but it can’t be the sum of a fair use argument.
• The public domain is awesome. The public domain can also be a little bit tricky. Consider classical music- Vivaldi’s Allegro is in the public domain. The London Philharmonic 2002 recording of Vivaldi’s Allegro is not in the public domain. A new expression of an underlying work in the public domain might have its own copyright associated with it. This doesn’t mean that you can’t use the work, but you have to have a different justification for doing so, or you have to use the original work that is actually in the public domain.
• Works created by the federal government are in the public domain- but not every work on a government website was created by the government, including portraits. Images might have copyright associated with them even if you find them on an official federal government site. Unless it specifically says otherwise, don’t assume that you’re free to use it. Again, you can make a fair use argument- and chances are, a pretty strong one- with such works, but you actually have to make that type of argument.
• Not every Creative Commons license is identical. Some of them specifically require you to use “Share-Alike” when you license your derivative work. Some of them specifically mention that they don’t allow derivative works. You need to pay attention to the specific terms of the license when licensing your own content.
• Just because you have a picture of yourself does not mean that you have copyright in the picture. You may have some rights of publicity in the picture, but that doesn’t mean that you can do anything you want with it. If you took the picture yourself, then you have copyright in it. If you didn’t, then someone else does. Saying that “it’s a picture of me” or that it’s a picture of you that you have at your house/on your computer is not a copyright argument.

That’s a bit on the restrictive side of a copyright argument. We also see problems in the other direction. I’ll talk about those in a later post.