This legal complaint was filed on November 16, 2004 by the Motion Picture Association of America (MPAA) against "the people," or the unknown offenders of piracy in the U.S.  It is important to clarify that it was the MPAA who filed the complaint on behalf of the studios it represents.  The Document is outlined by three different sections: 1) Jurisdiction and Venue, 2) Parties, and 3) Count I: Infringement of Copyrights.  The document references itself as, "a civil action seeking damages and injunctive relief for copyright infringement under the copyright laws of the United States."  The complaint also states that the MPAA is targeting the Defendant (the people) for specific film piracy actions such as distributing and offering to distribute copyright works via the internet.  A particularly informative portion of the "Parties" section of the formal complaint consists of a description of how the Plaintiffs (the studios) are affected by the Defendant.  Described in this section is the fact that piracy allows people to freely and illegally obtain unauthorized copyrighted works.  The Defendant then has the ability to distribute the illegal copy in near perfect condition regarding both sound and picture quality.  The Plaintiff's main argument here is that just one copy of a film can cause an explosion of illegal distribution worldwide by limitless people.  Included under the Infringement of Copyrights is an equally as informative explanation of willful process of the Defendant's piracy acts, and how the court should go about punishing those said acts.  This formal complaint document shows how Hollywood is reacting to the piracy movement, and what measures they are taking to fight against it.

 

This academic journal is published by Cambridge University Press and is a commentary on the first source listed above.  Laing highlights the most important points of Frith’s work, offering his professional opinion in a disagreement, agreement, or clarification in the very least.  A notable quality of this journal is the fact that is it printed in Great Britain; therefore it offers the insight of a foreigner analyzing American copyright law in contrast to that of the United Kingdom.  This perspective draws attention to aspects of the law that may not been previously considered. 

            The essay is short and concise, wasting no words in a full examination of Frith’s work.  He calls into question Frith’s assertion that the copyright system is an “aspect of the competition between different music producers…and…different music users,” and claims that there is much more to it than that.  He acknowledges the complexities in the system in that they do not clearly favor or target neither the creator, nor the performer, nor the consumer.  Slightly outdated, this essay was written before any sampling lawsuits were completed in the courts (at least in Great Britain) however, this serves as a strength instead of a weakness, however, seeing as his calculated predictions can be measured against the results to gauge how scholars viewed the subject.

            This journal is not only an intellectual work in itself, but it is also an intelligent deciphering of some of Frith’s most significant assertions.  This serves the reader well as some of his reading can be confusing and seem contradictory at parts.  In reading Frith’s work, I will be sure to keep Laing’s journal on hand for color and clarification in order to most accurately comprehend the discussion and facts presented.

 

This book is a guide – as its title might suggest – to all things digital when it comes to music.  It serves as not so much an analysis on copyright in the music industry as a whole, but rather as a set of legal and technical guidelines so that one may participate in the consumption and production of such music without infringing on copyrights.  In other words, it describes for the reader all of the ins-and-outs of the digital music industry so that one may know where in the law his practices may reside. 

            Hill’s book has entire chapters devoted to the assessment of what is legal, what is not, and how to go about participating in said sanctioned musical practices.  He identifies a list of acceptable file-sharing websites, and offers his own commentary on why others are forbidden, as well as why these are acceptable.  The book begins with a basic introduction into the technologies and methods used in the digital realm and then goes deeper to list available services and to comment on the merits of various practices.  His advice is clear and he condones no illegal activity, yet he makes clear why certain people might be motivated to circumvent copyright laws in terms of digital music.  He further lists specific file types and programs that are used in these practices and he identifies useful software.  He finishes the book with another broad chapter about the “Conscience of Digital Music” as a whole as well as his prediction of the future of the industry.

Hill’s technological knowledge is a key aspect of this book that has allowed me to delve deeply into the details of digital music production and sharing.  He explains these issues in simple terms, while still conveying the complexity of their implications.  In writing this final paper, the technological terms and details from this book will provide much-needed expertise in a field that I am not necessarily well-versed in.  In my analysis of the acceptability of digital sampling, I must first know how the practice works and what techniques are involved; this book offers me this knowledge, which is key to reaching a conclusion in my final paper on what sampling is acceptable within copyright law.

    In an article published in the Cardoza Arts and Entertainment Law Journal, Eaton O’ Neill, a J.D. Candidate at the Benjamin N. Cardozo School of Law, considers whether Perez Hilton’s use of X17’s photographs constitutes a fair use.  As the cornerstone to his argument, O’Neill classifies Hilton’s use of the photographs as a satire, thereby affording a harsher evaluation to the Hilton’s claim of fair use.  In a large portion of the article, O’Neill discussed landmark parody/satire cases, including Campbell v. Acuff-Rose Music, Inc., in which the Supreme Court determined that a rap music group’s parody of “Oh, Pretty Woman” constituted a fair use because it was “unlikely to serve as a substitute of the original” and that “no more [of the song] was taken than necessary”; Suntrust Bank v. Houghton Miffin Co., in which the Court of Appeals for the Eleventh Circuit vacated a preliminary injunction that barred Houghton Miffin Co. from publishing “The Wind Done Gone,” a parody of “Gone With the Wind,” because the parody would not “substitute nor ultimately displace revenue” of the original; and Dr Seuss Enters., L.P. v. Penguin Books USA, Inc., in which the Court of Appeals of the Ninth Circuit upheld the preliminary injunction barring Penguin Books USA from publishing “The Cat NOT in the Hat!,” a satire on the O.J. Simpson trial, because Penguin Books could not provide “justification for the very act of borrowing.”  After discussing these landmark cases, O’Neill professes that he believes Hilton’s use of X17’s photographs represented a satire, and not a parody.  He notes that a satire “employs the original work as a vehicle for commenting on some individual or institution and not on the work itself.”  Hilton does not “aim his modifications to comment or criticize the original photos,” O’Neill adds, “but targets [his] commentary or criticism…on the celebrities themselves.”  Evaluating the four factors of fair use from the perspective the Hilton’s use constitutes a satire, O’Neill proclaims that “the only reasonable outcome of the dispute between X17 and Perez is a finding of copyright infringement.”   
    This source is useful in my research paper as it presents a unique legal analysis in classifying Hilton’s work as a satire.  According to the cases O’Neill provides in his article, if Hilton’s use were deemed a satire, he would have to prove justification for why he used a given photograph, as opposed to any other of the celebrity.  Therefore, it would appear extremely difficult for any of Hilton’s uses of X17’s photographs to constitute a fair use.  However, I believe justification in a selection of a specific photograph could be made when Hilton uses it to enhance his commentary.  For example, if Hilton breaks news that Lindsay Lohan signed a major endorsement deal, and uses a photograph of her shopping and adds hundreds of dollar signs and fifteen more shopping bags in her hands, he transforms the photograph for the purpose of his news commentary.  His justification is that he selected a photograph where Lohan was shopping, as opposed to her partying at a nightclub.  Futhermore, I disagree with the declaration that all of Hilton’s uses are satires, as he may be targeting the photograph itself.  For example, if a photographer captures a celebrity in a compromising position, and Hilton draws in a phallic symbol, Hilton can claim that he is parodying the position of the subject in the photograph itself, rather than the individual it portrays.

26 Cardozo Arts & Ent LJ 535

  In February of 2007, Universal City Studios Productions (Universal Studios) filed a complaint against gossip blogger Mario Lavandeira (p/k/a Perez Hilton) alleging copyright infringement.  According to the document, Universal Studios produced and distributed the romantic comedy “The Break Up” starring Vince Vaughn and Jennifer Aniston.  Universal Studios filed an application with the U.S. Copyright office to register the motion picture.  During production or post-production of the motion picture, Universal Studio alleges that certain images of Jennifer Aniston were illegally copied, including a topless movie still of the actress.  Obtaining this image (provided as “Exhibit A” in the complaint), Perez Hilton posted an “identical reproduction” on his website.  Universal Studio charges that Perez Hilton “reproduced, distributed and publically displayed [Universal Studio’s] copyrighted images…in violation of [Universal Studio’s] exclusive rights…under 17 U.S.C. § 106.”  Universal Studios sought an order from the court “enjoining Defendants from any further infringement” and requested the “U.S. Marshall to seize and impound all items…which infringed [Universal Studio’s] copyrights.”  Responding to the lawsuit, Perez Hilton’s attorney Bryan Freedman stated, “[Hilton] used [the photograph] for the purpose of news commentary and satire as he often does with photographs. That constitutes fair use and there's nothing illegal or improper with that use."
  The complaint and Freedman’s response are extremely useful in determining whether or not Perez Hilton’s use of a movie still constitutes fair use.  First, is should be noted that Freedman chose the word “satire” to describe his client’s use of the photo, rather than “parody.”  This puts his client in a more difficult position, as it is harder to proclaim fair use for satirical works.  When posting the image on his website, Hilton drew three white teardrops under Aniston’s eyes, claiming that this constitutes a fair use as it transforms the work.  Although the case was settled out of court, a quick analysis of the four factors, which will be elaborated on in my research paper, clearly demonstrates that these few marks do not constitute a fair use of the movie still.  There is nothing transformative in Hilton’s expression of the photograph, as no new meaning was added to the work.  The purpose of Hilton’s use was simply to display a topless photo of a famous actress.  The commentary he added below, simply stating that the picture was a topless photo of an actress, was completely unrelated to the three teardrops.  Had the commentary discussed Aniston’s highly emotional nature, Hilton would have a better claim of fair use as he transformed the picture to match his opinions.    Furthermore, in regard to the nature of the work, the fact that that photo of Aniston was not used in the final cut of the movie weighs against Hilton, as Universal Studios has the right to show the first public appearance of the movie still.  The third factor, amount and substitutability of portion taken, does really not weigh in favor of one party, as the “newsworthy” significance of the movie still and the alleged satire requires the whole movie still to be used.  The final factor, the effect of use upon the potential market, significantly weighs in favor of Universal Studios.  As Universal Studios held the copyright to this still, it is possible the studio could have licensed the image for a substantial fee.  Overall, Hilton’s use of the movie still as the news story does not constitute a fair use as he did not transform the still.

In the fast-paced entertainment world, Perez Hilton has become a mainstream celebrity, operating his gossip-driven website www.perezhilton.com. Before the weekly tabloids hit the stands, Hilton breaks celebrity gossip on his website, which receives million of visitation hits a day. To accompany his commentary, Hilton uses photographs, music, and movie clips, all of which are copyrighted material. This research paper examines claims of copyright infringement against the famous blogger by photographers, movie studios, and photography agencies. In his defense, Hilton argues that his use of this copyrighted material constitutes fair use, as he transforms the works through his infamous white doodling for the purposes of his news commentary. This paper will elucidate whether Hilton, on "Hollywood's most hated website", violates the rights of valid copyright holders, or transforms their material for a different purpose, through careful of examination of legal documents and the four factor fair use test, to determine: "Perez Hilton: Fair Use Blogger or Incessant Infringer?"

While this act stipulated a number of things, perhaps the most contentious portion is its legalization of DVD filters like ClearPlay. The section entitled the Family Home Movie Act (FMA) states that DVD players that allow consumers the option of editing out specifically categorized content (such as drug use or sexual themes) are legal. It is not legal, however, to create a new, permanent copy of the DVD (as CleanFlicks did).

This piece of legislation complicates my argument, as it means that ClearPlay is considered legal. However, other articles I have researched may still contradict this legislaton. For example, the FMA implies that artists in America do not have moral rights, but a stipulation of our membership in the Berne Convention is that we must respect moral rights. Second, Amstrong makes a clear case for moral rights and for the appeal of FECA; and Madison's theory of rewriting fair use suggests that even though ClearPlay may pass the four factor test, it still may not be fair use.

In this transcription of a symposium on the changing rights of the artist, Jonathan Band (partner at Morrison and Foerster), Rebecca Tushnet (Asst. Professor at NYU Law School), and Eugene Mopsik (Executive Director of the American Society of Media Photographers) discuss the rights of the directors whose films are edited by ClearPlay technology. Band recounts the comments of various lobbyists and political figures testifying on the Family Entertainment and Copyright Act, stating that the Register of Copyrights argued against the bill because users have the choice to buy a product and should simply refrain from buying an offensive product rather than disrespect the vision of the author. Jack Valente also testified against the bill because he felt that the technology indeed infringes on the derivative work right because the software could be designed to skip not just offensive content, but any content. Mopsik addresses the concern that viewers attribute the features and feel of the edited work to the director’s vision. Lastly, Tushnet acknowledged that there is a “spectrum” of acceptable editing (ClearPlay is acceptable while CleanFlicks is not), and that consumers watching a CleanFlicks DVD have the same experience as consumers watching a ClearPlay DVD.

This piece supports my thesis as it discusses some of the immediate political reaction to the legislation that legalized ClearPlay. Even though FECA is now a law, the arguments made above against the legislation are still valid, particularly Valente’s argument. Mopsik’s discussion of attribution is more in depth than those in other articles, which mostly discuss whether or not a consumer knows the film is edited, and instead analyzes who the vision belongs to rather than who has the right to decide the vision.

 

    This blog is divided into three different parts that deal with distinct, yet related topics.  Firstly, there is the issue of “preserving the quality of movies for fans like these and so many others, we must stop these Internet thieves from illegally trading valuable copyrighted materials online” (movies television shows aren’t mentioned, but the same is true).  Strong ticket and DVD sales are likely with huge blockbuster films even with films that are illegal downloaded and distributed prior to actual theatrical release.  Movies such as “Star Wars,” with huge fans, do not have to worry about the potential consequences.  Films that don’t have a set fan bases are more likely to be affected by the illegal downloading process.

            Secondly, the issue of the Boucher Bill is discussed.  The U.S. Congress was sent a letter this past May arguing the passing of the Boucher-Doolittle Bill, saying “(1) that the legislation would “legalize hacking tools” and that (2) the bill misinterprets the 1984 U.S. Supreme Court Betamax decision.”  However, that information was incorrect and opponents of the bill were quoting a previous year’s version.  In actuality, this year’s version of the bill says that (1) “it would not legalize the manufacture, sale or other public provision of circumvention (or so-called “hacking”) tools” and (2) by directly quoting the Supreme Court’s Betamax decision, “it shall not be a violation of the Copyright Act to manufacture or distribute a hardware or software product capable of substantial non-infringing uses.”

            Lastly,  there is discussion of the FCC’s case arguing for the implementation of broadcast flags into digital television (DTV).  “The core issue is consideration of the conditions under which broadcasters will turn off their current, over-the-air analog signal and replace it with a digital one.”  Without the new, proper equipment, consumers’ televisions will no longer be in working order.  The FCC wants to put broadcast flags in each individuals television to detected “what can be copied or transmitted, and under what terms.”  The FCC court case was dismissed after the courts decided that the FCC did not have the power necessary to do what the intended.  The FCC is now looking to implement legislation to give them the power they need.  All in all, the broadcast flags will cost consumers a lot of money and the idea does not seem to be well received. 

 

 

In “Feca Matter,” which appeared in the John Marshall Review of Intellectual Property Law, Jacob Armstrong states that arguments for DVD-editing technology like ClearPlay have favored consumer rights over artist rights, and that artists rights must be protected. Armstrong, an attorney and legal scholar, argues that regardless of why or how a film is edited, the resulting film changes the expression of the copyrighted work that the director intended. While consumers may want the right to change the way a film is viewed at home using a specialized DVD player like ClearPlay rather than a remote control, artists want the intended meaning of their work to be preserved. Furthermore, the passage of FECA violates the U.S.’s presence in the Berne Convention, which states that members must have moral rights in their legislative understanding of copyright law.

Armstrong’s article supports my thesis, as it makes a strong, clear case for artists’ rights and shows a coherent path towards moral rights, rather than simply proposing them as necessary for the illegalization of ClearPlay. Furthermore, Armstrong points out that companies like ClearPlay have claimed in court that they are not creating anything new from the film; that they are therefore preserving the film and therefore not violating artists’ rights. However, if such is the case, then ClearPlay is not fair use because it does not transform the work and it takes most of the film (or the “heart” of the work).

 

    In a copyright infringement case, the judge ruled against the company Cablevision.  Customers were given a DVR remote to store television shows where “the hard drive itself was stored on Cablevision property.”  The courts decided that this made “Cablevision liable for reproducing and transmitting the programs without permission.” In other words, when Cablevision customers record television shows, no matter if they actually watch them or not (“buffer copies”), Cablevision is responsible for creating this “infringing copy.” Since all the saved programs are stored in Cablevision’s hard drive, the shows are then transmitted to the user after the broadcast, whenever they choose to watch their show.  Thus, officials are claiming that Cablevision “needs to manipulate signals in order to record the shows a user has selected” and, in essence, calling the company a “broadcast pirate.” The Cablevision case “does nothing to curb piracy”; if anything it “discourages innovation.” Also, it seems that Cablevision did nothing to actually infringe any copyright laws, which “center not on the details of the machinery, but on how the rights in a work are affected.” This is a major problem for the officials who deal with copyright laws.  If DVR and other recording techniques become so complicated and so afflicted with copyright laws, consumers may refuse to use them; thus, consumers would not be able to keep up with their favorite shows and probably never be willing to buy the DVD box sets later in life.  These copyright laws could negatively affect the market more so than DVRS (what they see to be the problem in this case) ever would have.

Consumers using Cablevision were not affecting how the works were used, the general market was in no way affected, and there was no copyright infringement.  Therefore, it seems that all this lawsuit did was enrage the public and prove that copyright laws are only “being used as a tool to scrape more money from wherever the studios can get some.”

 

In a recent case, television studios realized that a certain individual had gotten a copy of a number of episodes of the popular Fox television show 24. These episodes had yet to be aired, but were soon uploaded to the Internet. The individual was charged with “uploading copyrighted material…knowing the work was intended for commercial distribution.” The episodes were first uploaded to the website LiveDigital, but quickly reached YouTube, therefore both “were served subpoenas under the DMCA demanding they disclose the identities of the users who uploaded the episodes.” In this landmark case, the individual could receive a rather severe punishment. Not only were the uploaded episodes considered valuable because of the popularity of 24 and the fact they hadn’t been aired yet, but copyright officials are trying to use this case as an example for future pirates. Normally, Internet copyright infringement cases are taken up against “user share sites.” The fact that an individual did the same gives copyright officials more incentive to protect “‘the rights of the content owners who invest millions of dollars in a television series must be protected.’”

Twentieth Century Fox, who produces 24 and is a major studio in the television industry “hopes it [this case] will serve as a powerful warning that uploading copyrighted TV shows and movies to the Internet can be a crime with significant penalties and will be prosecuted as such. ”It seems fair to say that this particular studio is not alone in their beliefs. It also seems that the individual prosecuted in the 24 case is being so harshly is so that others will be deterred from attempting the same. Television copyright officials “have no choice but to take it seriously, because if they don’t catch it early, they won’t be able to stop it at all ’” Without enforcing harsh punishments, illegal downloading and uploading of copyrighted material will continue to the point that there will be no laws to prevent it or punish for it. Officials are implementing harsh penalties, but more importantly they are putting into effect laws that are current with the technology.

    X17 is a photography agency that “owns and operates one of the world’s leading archives in celebrity-related photographs.”  Perez Hilton posted reproductions of X17’s work, and often drew sexually explicit “satirical” doodling on the pictures.  Using more than fifty-one reproductions of X17’s images, X17 filed a complaint alleging copyright infringement.  According to the complaint, “X17 has licensed the rights to reproduce its copyrighted works…to hundreds of newspapers, television stations and other prominent media outlets throughout the world.”  X17 alleges that Hilton used “timely photographs covering breaking news events” on his gossip written website that “receives 2.5 millions viewers” daily and “generates thousands of dollars per day in advertising revenue from it website.  Some of the photos included “Britney Spears driving her son on her lap,” “Britney Spears exposing herself,” and “Cameron Diaz in a beige sweater out golfing.”  In the case of all fifty-one photos, X17 argues, “The photographs were virtually identical reproductions of copyrighted work. [Hilton] thereby reproduced X17’s copyrighted works in copies, distributed copies of the copyrighted works, and publically displayed copyrighted works…in violation of exclusive rights under 17 U.S.C. § 106 that X17 holds in the photographs.”  As a prayer for relief, X17 asked the court “for the entry of an injunction providing that [Hilton]…be permanently enjoined” from using X17’s photographs.  Additionally, X17 asked for “actual damages for copyright infringement,” “a seizure order directing the U.S. Marshall to seize and impound” X17’s copyrighted photos in Hilton’s possession, and “for a disgorgement by [Hilton] to [X17] of all profits” derived from Hilton’s use of the photographs, among other damages and fees.
     This complaint is useful in my research paper as it involves Hilton’s use of newsworthy and not-newsworthy copyrighted photographs.  In the document, X17 establishes that hundreds of gossip tabloids and magazines rely on its photographs, which break news events.  In the case of these photographs, it would be hard for Hilton to proclaim fair use.  A quick analysis of the factors of fair use reveals that Hilton’s doodling on the X17’s image of Britney Spears driving with her son on her lap does not transform it in any way, as his news story simply refers to Spear’s reckless endangerment of her child.  Hilton uses the image in it entirety and if posted on his website immediately, it would destroy the licensing value of the photograph.  Therefore, Hilton’s use of a newsworthy photograph, in which he doodles on the photograph, does not constitute fair use.  This is the same if Hilton did not doodle, because if Hilton can use the image and write his own news story below discussing what's in the photo, and this was determined to be a fair use, why would tabloids ever license a photo if they could also claim fair use?  In that case, why would paparazzi or photographers exist at all if they could not license their photos?  Finally, Hilton’s use of a non-newsworthy photograph, such as Heather Locklear eating, may be deemed a fair use if he transforms the photograph to match his news story. Overall, this source allows me to evaluate different situations of Hilton’s use of photographs and whether or not his use of copyrighted images constitutes a fair use.

  Chapter One of Title 17 of the United States Code presents the “Subject Matter and Scope of Copyright” in American law.  According to Section 102, copyright protection is given to “original works of authorship” including “pictorial, graphic, and sculptural works.” Section 106 states the “exclusive rights” of the owner of a copyright includes “to display the copyrighted work publicly.” Section 107 delineates that “the fair use of a copyrighted work...for purposes such as criticism, comment, news reporting, teaching, scholarship, or research, is not an infringement of copyright.”   In evaluating an alleged a fair use, Section 107 presents four factors to be considered: “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational uses; the nature of the copyrighted word; the amount and substitutability of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for a value of the copyrighted work.”  In Section 113, “Scope of exclusive rights in pictorial, graphic, and sculptural works,” an exclusive right is given to the copyright owner to “reproduce a copyrighted pictorial…in or on any kind of article, whether useful or not.”  Chapter Five of Title 17 presents “Copyright Infringement and Remedies” in American law.  Stated in Section 501, “anyone who violates the exclusive rights of a copyright owner…is an infringer.”  In Section 502, the law states “any court having jurisdiction…may…grant temporary and final injunctions on such terms as it may deem reasonable to prevent or restrain infringement of a copyright.” Additionally, Section 504 states the infringer of copyright is liable for “the copyright owner’s actual damages and any additional profits of the infringer, ” or “statutory damages.”  Statutory damages may be awarded up to the amount of $150,000.  
    For the purposes of my research paper, the aforementioned sections establish that photographs can be copyrighted and cites the four factors used to analyze fair use cases.  Argued by the photography agencies in complaints, the exclusive right “to display the copyrighted work publically” is flagrantly violated by Perez Hilton, who often displays copyrighted photographs before the agencies can license them to weekly tabloids and newspapers.  Although Hilton argues that his use of the photographs represents “news reporting,” the four factors stated in the copyright law will allow me to determine if Hilton’s infamous doodles and commentary constitutes a fair use.  Hilton’s alleged fair use will heavily depend on whether his doodling on the photographs is transformative, in that it adds new meaning or expression to the copyrighted work, or if his news commentary is transformative, in that it adds value in the form of new insights or understandings.  Furthermore, the “Copyright Infringement and Remedies” section will allow me to evaluate the photographers and photography agencies’ prayers for relief in the filed complaints.  The law states that infringers are liable for either actual damages and additional profits or statutory damages.  If Perez Hilton’s use of photographs was infringement, it will be interesting to research whether or not courts would award statutory damages per photograph or award actual damages.  Although Hilton does not charge a fee for visiting his website, he earns significant revenue by means if advertising, and his use of copyrighted photographs certainly increase his advertising rates.

    Zomba Recording LLC (“Zomba”) is a record company that distributes copies and phonorecords of sound recordings performed by music artists, including Britney Spears, Leona Lewis, and Beyonce Knowles.   On October 30, 2007, Zomba released Britney Spears’s album Blackout, her first record released since 2003.  According to the first amended complaint filed by Zomba against Mario Aramando Lavandeira, the legal name of celebrity blogger Perez Hilton (“Hilton”), Hilton posted copies of tracks of the album on his website www.perezhilton.com.  As a result, Zomba was forced to push forward the release of Spear’s album.  From August 23, 2007 to October 6, 2007, Hilton consistently posted eight unreleased Britney Spears’ tracks (Perfect Lover, Heaven on Earth, Break The Ice, Everybody, Hot as Ice, Piece of Me, Radar, and Kiss You All Over), as well as one released track (Gimme More).  The complaint states that Zomba consistently appealed to the Recording Industry Association of America to demand that Hilton remove the sound recordings from his website and demanded that Hilton’s Internet service provider (“ISP”) disable access to the sound recording.  Although the ISP disabled access to the recordings, Hilton “continued to post and re-post unlawful copies” of the sound recordings.  For each of the individual sound recordings, Zomba argued that Hilton infringed Zomba’s copyright “ by copying and reproducing plaintiff’s [sound recordings],… by distributing copies…to the public,” and “by performing [sound recordings] publically.”  As a prayer for relief for copyright infringement, Zomba asked that Hilton be “enjoined…from infringing…[Zomba’s] copyrights…” and that Hilton “be required to pay plaintiff…damages…[Zomba] has sustained in consequence of [Hilton’s] infringement.   
    This complaint is of importance to my research paper as it involves Hilton’s use of sound recordings.  An analysis of the four factors of fair use clearly weighs in favor of Zomba.  For one, there is nothing transformative in Hilton’s posting of the songs.  He does not produce a new mix of alter the material in any way, shape, or fashion.  This is also the first case in which the nature of the copyrighted work weighs heavily against Hilton, as all but one of the songs was unpublished.  As under copyright law the author has the right to control the first public appearance of its expression, Hilton clearly violated this right by posting the tracks before the release.  Although the tracks posted did not represent the final release version, the heart of the work was expressed through the “draft” versions on Hilton’s website.  Therefore, coupled with the fourth factor, the sound recordings on Hilton’s website substantially effected the potential market, as individuals could substitute the tracks online for the actual album.  This conclusion is further substantiated by the fact that Zomba was forced to release the album two weeks earlier in an attempt to retain its economic profit.

    Seeking summary judgment on the issue of the copyright claim, Perez Hilton, in X17 Inc. vs. Mario Lavadereia, filed a memorandum of points and authorities in support of motion for summary judgment, or in the alternative, partial summary judgment.  According to the document, “X17’s copyright infringement claim fails because [the court] lacks subject matter jurisdiction.”  Hilton stressed that the Copyright Act provides that "no action for infringement of the copyright in any work shall be instituted until registration of the copyright claim has been made,” and therefore, “an invalid registration nullifies the federal court’s subject matter jurisdiction.”  In it’s applications filed with the U.S. Copyright Office, X17 identifies itself as the author and that the photographs were a “work made for hire,” but does no state the actual photographer or reference any agreement between the photographer and the agency.  As a latch ditch effort, X17 created assignment agreements as a “litigation strategy.”  In the document, Hilton declares that none of the photographers were X17 employees and that he and X17 were not competitors, both claims substantiated with testimony of the photographers and principals of the photography agency.  Hilton asserts, “Summary judgment should be granted on X17’s copyright claim because the undisputed facts demonstrate that’s its purported copyright registrations are invalid.”  When X17 represented itself as the owner of the photographs on the basis that they were “works for hire,” it must prove that the “work was prepared by an employee within the scope of his or her employment” or a “certain work 'specially ordered of commissioned.’”  Hilton declares that the photographers were not employees of X17 and that there was no agreement between the agency and the photographer in writing that the photographs were “works for hire.”  Additionally, the document purports that the three-month grace period to register some of the photographs after first publication had passed, and therefore, X17 could not meet the requirement for statutory damages and fees.     
    Hilton’s claim that material misrepresentations in X17’s copyright applications invalidate the registrations serves as an alternative defense to his fair use claim.  For my research paper, this document allows me to investigate whether or not X17’s copyrights are valid and to dissect the relationship between the paparazzi agency and the photographers.  This is the first document that introduces the term “work for hire,” as X17 maintains that they were assigned the rights to the photographs and commissioned the works.  However, if Hilton was able to successfully prove that X17 does not hold valid copyrights to the photographs, his use of the photographs, newsworthy or not newsworthy, with doodles or without doodles, would not constitute infringement, as the photographs may belong in the public domain.  Therefore, photography agencies such as X17 should ensure the proper protection of their photographs, and perhaps change their business model from “independent contractors” to employees to properly classify the photographs as “works for hire.”

  On November 22, 1963, Lee Harvey Oswald assassinated President Kennedy in Dallas, Texas.  At the exact time of the murder, Abraham Zapruder, who happened to be filming a home video, documented photographic evidence of the assassination on his camera.  A few days after, “Life” magazine, a publication of Time Incorporated, purchased the rights to the film, and parts of the film were then published in several issues of the magazine.  In his book “Six Seconds in Dallas,” Josiah Thompson utilized “sketches” of the Zapruder film, which were later declared as clear copies, to enhance his study of Kennedy’s assassination.  In response to the book’s publication, Time Incorporated filed a complaint against Thompson and his publisher, alleging the film was “stolen surreptitiously” and the defendants use of “copies of the frames” was “an infringement of statutory copyrights, an unfair trade practice, and unfair competition.”
    In response to a motion by Time Incorporated for summary judgment, the district judge evaluated whether or not Thompson’s use of the film shots constituted a fair use.  The judge notes that Life properly registered the film with the copyright office and stated that Thompson’s book “relie[d] heavily on the Zapruder pictures.”  At a first question to be answered, the judge considered whether or not there was a valid copyright in the Zapruder pictures.  The judge evaluated the plaintiff’s assertion that the pictures were simply records of what took place and that “news could not be copyrighted.”  Evaluating past precedents, the judge stated “any photograph may claim the necessary originality to support a copyright claim merely by virtue of the photographers’ personal choice of subject matter, angle of photograph… and the…time it was taken.”   Next, the judge evaluated whether or not the use of the pictures constituted a “fair use.”  The judge declared that there was “a public interest in having the fullest information available on the murder of President Kennedy.  Thompson did serious work on the subject and has a theory entitled to public consideration.”  Further, the judge proclaimed that the book “was not bought because it contained the Zapruder pictures” but because of the “theory of Thompson and its explanation is supported by the pictures” and that there was no injury to Time Incorporated because there was “no competition.”  For these reasons, the judge granted summary judgment for the defendants as the use was deemed a fair use.     
    This decision is vital for my research paper, as it discusses the fact that all pictures can qualify for the originality needed for copyright and that “serious work” and a “theory” in association with a copyrighted photo can constitute fair use.  For one, Hilton cannot claim that a paparazzo’s photograph lacks originality, and therefore cannot be copyrighted, because the photographer, among other things, personally chose “the subject matter.”  Furthermore, it exposes the fact Hilton cannot claim fair use in cases where he publishes newsworthy photographs because he simply states what is in the photograph, rather than imparting a theory or adding anything transformative.  Individuals go to Hilton’s website to see the photographs, not to see Hilton’s obvious explanation of them.  As opposed to this case, where Time Incorporated and Thompson operated in different markets, Hilton and the copyright holder are in direct competition, as Hilton greatly reduces the value of copyrighted work because the pictures are exhibited in whole on his website.

   At 5:30 A.M. on January 3, 2004, internationally known celebrity Britney Spears married Jason Alexander, an unknown individual, at the Little White Chapel in Las Vegas, Nevada.   In November of 2006, Perez Hilton, eager to maintain his claim to be the “Queen of All Media,” published a photo of Jason Alexander on his website, juxtaposed next to a photograph of Britney Spears. Accompanying the photographs was a quote from Alexander, who stated that he and Spears used ecstasy and cocaine.  Ken Knight, a professional photographer created the image that Hilton used on March 9, 2000, and registered the photograph with the U.S. Copyright Office on January 9, 2004. In 2006, Knight filed a complaint against Perez Hilton, arguing that Hilton’s use of his photography infringed Knight’s copyright.  Knight provides a copy of the registration number to prove validity of his copyright. In the complaint, Knight argued “there was instant and significant demand within the publicity, news and entertainment industries for photographic images of ‘Mr. Britney’” and photos “incorporating those whose lives intersect hers…are licensed and sold for significant fees.”  Further, Knight noted that “the subject image was directly hosted by Hilton on his website and was not displayed via a link or frame from any other website.”  Knight asked for damages in the amount of $150,000 and an order enjoining Hilton from infringing on his copyright.  Hilton moved to dismiss the case for improper service and lack of jurisdiction.   Approximately one month after Hilton’s motion to dismiss, Knight dropped the case. 
   This case is important to my research paper and it involves Hilton’s use of a photograph that became newsworthy, thereby making the fair use analysis more complicated.  As opposed to paparazzi that follow current celebrities, this photographer took the photograph four years before the individual entered the limelight.  Knight’s lawsuit involved Hilton’s use of the photograph two years after it had infiltrated the entertainment world, thereby reducing its potential licensing value.  A quick analysis of the factors of fair use weighs in favor of infringement, largely due to the fact that Hilton did not doodle on the photograph.  Hilton’s use of the photograph does not add any new meaning or expression and there is no justification or transformation in its use. The purpose of Hilton’s post was to reveal that Spears and Alexander used drugs.  It is evident that Hilton would have relayed the same information had the picture not been there, as the foundation for the post rests on Alexander’s quote.  Had Hilton drew references to drug use, a transformation related to his story could possibly be found.  Additionally, Hilton’s used the photograph in its entirety, and did not reduce the size by any measure, thereby taking the “heart of the work”.  The nature of the work weighs minimally in favor of Hilton, as many had already seen the photo, but the effect on the potential market weighs in favor of Knight, as Hilton’s use presented a direct-market substitute.  Had Knight not chosen to drop the lawsuit, I believe the court’s decision would have been in Knight’s favor.

In this post from “The Blog Herald,” Jonathan Bailey proclaims that the X17, Inc. vs. Perez Hilton case has the “potential to drastically impact bloggers and small webmasters."  Bailey cites the copyright cases against Hilton, including the Universal Studios suit involving a topless photograph of Jennifer Aniston.  In discussing the X17 case, he purports that the blogger and the photograph agency were at a stalemate, as Hilton’s motion to dismiss the suit was denied, but he was allowed to “keep his site online while the lawsuit was pending.”  However, Hilton’s site temporarily went down when Crucial Paradigm, his Australian web host, blocked Hilton’s access “due to the volume of copyright complaints,” and subsequently, he moved his site to the Voxel Dot Net server.  The blog post discusses a separate lawsuit filed by Hilton against the photograph agency, an obvious vindictive move, “citing what [Hilton] called unfair competition.”  Hilton argues that X17 “does not pay its photographers properly” and “hires illegal immigrants” to maintain low costs.  In discussing “what was at stake,” Bailey asserts that the decision could establish guidelines for using others photographs on the Internet, especially in regard to published versus unpublished works.  He believes that if the ruling is broad enough, the decision could “impact the Youtube crowd, many of whom take copyrighted works and make humorous modifications to the video, and it could impact link blogging services that republish articles, such as Google Reader’s “Share” feature.” 
    For the purposes of my paper, this blog post introduces information not contained in the legal documents filed in court.  The fact that Hilton’s server terminated his service is representative of the highly contentious nature of the X17 lawsuit.  Although the case only involves one individual, Hilton seems to be at the forefront of the blog world; therefore, the outcome of this case may have broad implications for the whole cyber world.  The decision of the lawsuit may elucidate what constitutes a parody in regard to photographs.  Small alterations to the photographs, in the form of doodles, may be deemed a satire, rather than a parody, by a court of law, thereby making it harder for Hilton to claim fair use.  Additionally, the “unfair competition” lawsuit referenced in the blog post may reveal Hilton’s desire to retaliate against X17.  He obviously lacks standing in a lawsuit filed that alleges that X17 exploits its photographers, some with “criminal backgrounds and gang affiliations.”  The lawsuit is clearly a public attack aimed at damaging X17’s reputation.  Finally, this blog is the first source to reference Hilton’s procedure for a takedown request.  The existence of this procedure on his website seems backwards, as Hilton is attempting to secure DMCA protection for himself.  However, Section 512 of American copyright law grants protection from monetary damages if “the transmission of the material was initiated by or at the direction of a person other than the service provider.”  In this case, however, Hilton himself is posting the copyrighted pictures on his website, not an third-party user, so he affords himself no DMCA protection.

In this article, which appeared in the Santa Clara Computer and High Technology
Law Journal, Aaron Clark argues that even if moral rights were applied to video filters like ClearPlay, the technology would not infringe on those rights. Clark quotes the case in which moral rights were first defined using the Lanham Act: “The purpose of the Lanham Act is to prevent misrepresentations, such that the author of an original work is not “present[ed] to the public as the creator of a work not his own, and thus [keep him from being] subject to criticism for work he has not done” (Gilliam, 538 F2d at 24 as qtd. in Clark 70). Under that definition, it seems that ClearPlay is violating the Lanham Act. However, Clark explains that this case was the only one in which moral rights were defined in this way, meaning that any application of the Lanham Act would be an unlikely exception to the rule. In fact, the argument was really only valid in that case because ABC did not tell viewers they were editing the piece in question and viewers might miss a disclaimer aired at the beginning of the special, and because the viewers could not compare the edited and non-edited versions. ClearPlay, on the other hand, makes it clear that the films are edited. 

This article complicates my thesis, especially in its dissection of the first use of the Lanham Act in defending moral rights. While it is difficult to argue that consumers do not know the film is being edited—they may buy the film because they know ClearPlay will edit it—it may not be possible for them to compare the edited and non-edited versions. In fact, this argument is particularly true when the intended consumer is imagined: it is not just the parent, likely familiar with the film, that watches the film, but the child who may not know anything of the original film or know that anything is missing. In fact, the child viewer may not even know that he or she is watching an edited film. Although the child is not the one buying the film, he or she is largely the reason the technology was created, and the effect on them of the film’s edits should not be forgotten.

    On www.perezhilton.com, Mario Armando Lavandeira Jr., better known as Perez Hilton, posts gossip and news stories about celebrities.  The self-declared “Queen of All Media” posts up to twenty-five stories a day, and his website receives between two and four millions unique visitors per day.  On his website, Hilton’s posts mostly consist of three parts: a title for the post, a photograph of a celebrity, and a news story or commentary.  Additionally, on most of his posts, Hilton uses a computer program that allows him to doodle on the photographs with virtual white paint.  His doodles are often sexually explicit, as he draws phallic symbols on celebrities’ faces and bodies.  In some occasions, Hilton substitutes doodles with virtual white handwriting over the photographs, often consisting of sexual or exclamatory statements.  To acquire the photographs, Hilton navigates entertainment websites, mostly those of photograph agencies, and copies the image for his own use.  Along the right side of his website, Hilton displays advertisements serviced by Blogads; it has been reported that Hilton earns up to $110,000 per month in advertising revenue.  On the left side of his website, Hilton offers his “Perez by phone” service, in which monthly subscribers receive pre-recorded messages from Hilton regarding breaking news stories, as well as a link to his clothes fashion line.  In another section of his website, Hilton includes a copyright statement on, in which he declares, “All images on perezhilton.com are readily available in various places on the Internet and believed to be in public domain. Images posted are believed to be posted within our rights according to the U.S. Copyright Fair Use Act.”
    Perez Hilton’s website is the cornerstone for my research project, as my paper investigates whether or not his use of copyrighted photographs constitute a fair use.  The doodling, the photographs, as well as the news commentary, will offer the substance needed to evaluate his fair use claim.  An analysis of his website reveals that there are, in general, five different types of posts that constitute a mix of newsworthy and not newsworthy photographs, photographs that contain and do not contain doodling, and news commentary that does or does not relate to the photograph used.  These distinct blog posts complicate my research, as it is important to determine if any or all of the uses constitute a fair use.  The existence of his telephone service, his clothing line, and the multitude of advertisements confirm that Hilton makes a substantial profit from his website.  The website’s profitability will be a factor in determining the appropriate damages awarded to the photographs’ copyright holders if Hilton’s use of the material is determined to be infringement.  Finally, Hilton’s “Copyright Statement” on his website appears to reveal a flaw in his affirmations.  For one, the notion that all the images he uses are “readily available on the Internet” and are believed to be in the “public domain” is nonsensical.  The next part of his statement, that images posted fall within his rights under the fair use act, completely contradicts his first statement.  If Hilton believes the images he used were in the public domain, there would be no need to establish a fair use, as he would have every right to use the photographs.  This flagrant inconsistency, in my opinion, immediately weakens his claims of fair use, as he obviously does not completely understand the principles behind it.

Gail H. Cline’s 2004 article from the Hastings Communication and Entertainment Law Journal objects to the use of ClearPlay, arguing that the use of such technology violates the Lanham Act, thereby adversely affecting directors’ reputations. Cline, an attorney, does not believe that ClearPlay is fair use, and that the company is in fact guilty of contributory liability for aiding consumers in creating derivative works. Cline believes that in editing films, ClearPlay changes those things that mark a work as that of a particular director, thereby changing the way viewers identify the film and the director. Because the credits are left unchanged at the end of the film, a viewer may assume that the people listed created the filtered film rather than—or along with—the vision expressed in the unfiltered film. Furthermore, because the RAM technology of the machines creates a short-term derivative work, ClearPlay encourages consumers’ infringement.

This article supports my thesis as it argues expressly for the rights of the author/director. Not only does Cline argue that the transformations ClearPlay makes ruin a director’s artistic vision, but she also insists that this transformation does not make the technology fair use because it takes most (or the “heart”) of the film, and it seizes the studio’s potential market for creating sanitized versions of its own films.

However, this article also complicates my thesis, as it was written before the passage of the Family Rights and Entertainment Act. In fact, the existence of this law is perhaps the biggest complication for my argument in general—how is it possible to argue for the rights of the director when legislation has already deemed ClearPlay legal? However, because ClearPlay is not mentioned by name in the legislation, it is still possible to argue against the technology with the Act in place.

Philip Vineyard’s article, from the Tulane Journal of Technology and Intellectual Property, argues against the introduction of moral rights into U.S. copyright law. Vineyard believes that, considering the country’s relationship to the Statute of Anne, “A court should balance ‘societal benefits [in] expand[ing] public access’ to an authors’ works against the likelihood that too much expansion ‘might reduce the supply and variety of original works available by impairing the incentives for their creation’” (Lunney as qtd. in Vineyard 232). Whereas Cline’s previously discussed argument raises concerns that ClearPlay changes a consumer’s reputation because they may believe the director has approved the technology’s edits, Vineyard believes that the consumer knows that material is being skipped over and therefore the Lanham Act is not applicable. Furthermore, the availability of ClearPlay will, if anything, benefit the public interest by making more films viewable for consumers.

This argument complicates my thesis in a positive way because although an argument for moral rights is a tempting one to make against ClearPlay, it is both too simplistic and too difficult to make. The likelihood of moral rights legislature being introduced in order to protect films is low, especially after copyright law has existed for so long without it. It is difficult to say whether or not the consumer knows that material is being skipped over, and to what extent. This raises an interesting point of contention with the technology: do the consumers buy the film knowing that there is lewd content and if so, do they know how much is present? Is it assumed that the person buying the film has seen it before (such as a parent), and is going to show the film via ClearPlay to someone unfamiliar with the film and the director’s work (a child)? If so, ClearPlay is indeed infringing on the director’s reputation under the Lanham Act, regardless of moral rights.

This is essentially the plaintiffs' (Columbia Pictures' et. al.) memorandum of Points and Authorities in Support of Summary Judgement on Liability. Essentially it captures the main arguments of the plaintiffs in Columbia Pictures v. Gary Fung (IsoHunt), a recent development in the bittorrent context. Essentially the plaintiffs claim that the whole purpose of the "Fung websites" is to facilitate and provide users with the ability to search for ".torrent" files which link to trackers hosted on various computers and servers that contain actual content files like movies, etc. Also, plaintiffs maintain that "torrent" files in themselves have no purpose but to link to actual content files. The plaintiffs say that there had been done an "unrebutted" statistical study which showed that "95%" of all the torrents on the "other fung sites", which work hand-in-hand with the main IsoHunt site, are links to copyrighted material. Also important, is the plaintiffs counter to the defendant's (Gary Fung) claim that the Grokster case doesn't apply because unlike in the Groster case IsoHunt does not distribute any product. The plaintiffs' argument is that this claim is invalid because the Grokster case had nothing to do with it being a product as opposed to a service, but rather the fact that the Grokster "induced and promoted" active infringement which thus made Grokster liable for contributory infringement. 

This document is crucial to my research paper. It is the only recent legal document, and at the same time a primary source, directly related to my research thesis of whether government can/should shut down sites like www.IsoHunt.com. I plan to use virtually all of the arguments presented by the plaintiffs in my research paper. By weighing these arguments with various other sources (copyright law, DMCA, Grokster case, Fung's Affidavit) I'll be able to reach some kind of a conclusion in regards to my thesis.

This is a chapter from the U.S. code pertaining to copyright. For the purpose of my research paper only sections 502 & 504 are being focused on.

Section 502 deals with remedies for copyright infringement, specifically injunctions, and is subdivided into two parts. The first one makes it legal for courts to "grant temporary and final injunctions on such terms as it may deem reasonable to prevent or restrain infringement of a copyright." This can be interpreted that courts may rule however is necessarry and within power in order to prevent occurrences of copyright infringement. The second part of section 502 says that any court in the United States, having jurisdiction of the relevant parties, may serve any injunction as described in part a. It also says that once an injunction is served it shall be operative in and shall be enforceable by the United States.

Section 504 deals with damages and profits stemming from copyright infringement. Essentially it provides the legal grounds for an infringer to be financially liable for the copyright owner's actual damages and any additional profits made by the infringer, attributable to the copyrighted work.

These pieces of law are important for my research because they provide the legal grounds for a government or appropriate agencies to go after copyright infringers. Furthermore they provide legal grounds for any theory of indirect liability for infringement; specifically in those cases when an online service provider such as IsoHunt makes profit in the form of advertisement revenue much of which can be attributed to the popularity of copyrighted content found using the service.

This article is another in the copyright-optimism camp, but less in an economic way than in an intellectual property protection way.  It is targeted to online copyright content owners, and offers insights on one’s rights and recourse involving copyright infringement.  The author understands and accepts the culture of the internet, and that copyright owners may have differing attitudes about the use of their work.  The stance is moderate and professional, illustrating a slow series of steps one can take without rushing to judgment or litigation.  She offers examples of preliminary letters to send to infringers, how to contact them and gather information, create a paper trail, establish ownership of your work, register with the copyright office, send a cease and desist order, and request a search engine ban.  The use of threats and lawsuits is downplayed, and the emphasis is on protection of your work, if that protection is so desired.  There is no single online agency to help with content piracy- the fight is up to the individual, and this article stresses the importance of education and awareness of copyright issues with individual creators. 
Even in this copyright-optimistic world, there is still room for Creative Commons.  The author mentions Creative Commons licenses as a good way to display and track the protections of your work.  Since the focus of the article is on individuals and not large corporations or big business, it touches on more personal content matters and ways individuals can take back and control their rights.  The importance of creative control for lesser-known and less powerful copyright owners cannot be accentuated enough.  The resulting discussion from this article shows how interested people are in learning more about online content issues – what their rights are, and how to get exposure, but still protect their work.  Almost everyone is an online content owner in 2006 – with writings, research, photography or art somewhere on the web.  If more people knew about their options and their rights, the tide could start to turn away from our current over-extensive copyright culture.  This article demonstrates the vital nature of individual creators, and how key it is that they continue to create.  Some people get frustrated with the internet, and feel it is too expensive or time-consuming to post online content – they fear piracy, the takeover of large corporations, or their perceived lack of protection.  There are a variety of myths perpetrated about copyrighted content – that once you put something on the internet it is free to be taken, that online copyright protection is only for media conglomerates, or that content is not copyrighted until you register it.  This article dispels those myths (along with many more), and shows how new licensing models like Creative Commons can help in more ways than one.  It can give control over one’s rights back to the individual and educate them, which can then increase access to creative works on the web, and give society more ammunition to fight increasing copyright control.

The Future of Ideas was Lawrence Lessig’s precursor to Free Culture.  It is extremely tech-heavy and goes into great detail about the history and infrastructure of the internet, and the principles the internet was built upon.  He describes how these values of freedom and the free interchange of ideas are being corrupted by the extreme of copyright control in our society.  The drastic increase and rapid changes in technology have gotten out of hand, and there is no longer a balance between public and private goals.  Our past traditions can still come into play, and changes in technology do not have to alter our law or culture.  The DMCA is a good example of a flawed law put into place as a response to changing technology.  The juxtaposition of the early internet to what it is now is striking – the extremes of copyright and the lack of works in the public domain have severely stifled creativity.
The three main sections of the book are a discussion of the importance of “the commons” on the internet, how to recapture online creativity and innovation, and how to stop the increasing restrictions on the internet.  The first section details the need for more free resources on the internet, and a realm of works that are owned by everyone, without control to their use or access.  Lessig explains in detail the principles of the GNU/Open Source movement, and how important it is to the innovation commons, moreso because large companies lack the ability to quickly adapt to technology changes.  The second section illustrates how the constraints that stifle creativity on the internet need to be removed, and gives examples of online innovation such as HTML books, mp3s, and online cultural databases.  The need for new models and new ideas is strong.  The third section shows how the law is being manipulated by corporations, and their increasing control over web content.  Copyright and patent laws have been virtually re-written to stifle the creativity of individuals, and increase the control of government-backed media conglomerates. 
The book is as pessimistic as Free Culture, but does offer some ideas as to how to alter this negative process.  Lessig introduces the ideas of Creative Commons and 5-year copyright term renewals, if desired by the copyright owner.  He emphasizes the importance of removing special interests, and finding new ways to spread information for free.  He also encourages individuals to go after large corporations if they provide false claims to copyright.
This book is extremely important because of how it details the internet and online copyright issues.  It very accurately describes the foundation of the internet, and shows just how far away from that beginning things have gone.

 

Freedom of Expression is a very recent book in the tradition of Free Culture and The Future of Ideas.  McLeod describes how the two main enemies of the creative public are the CTEA and the DMCA.  He has a more optimistic view than we see in Lessig’s writings – he believes that individuals do have options when it comes to “overzealous copyright bozos”.  Fair use is expensive, but should be used in court cases, following the principle of “use it or lose it”.  And individuals should not back down when confronted with frivolous threats or lawsuits – they should do their research, educate themselves and others, and explore spaces and holes in the law.  He also gives examples of free speech cases where the “copyright bozos” lost, including Nader v. MasterCard, “Victor’s Little Secret” v Victoria’s Secret, and Annie Liebowitz’s case against the Naked Gun franchise.
McLeod’s book is a veritable encyclopedia of examples from every aspect of modern life as to how the privatization of our culture is harming us irrevocably.  He goes over sampling and music, collage art, book publishing and education, filmmaking, the internet and online content, the privatization of nature and public spaces, and electronic voting.  He explains how in today’s world such innovators as Woody Guthrie, Martin Luther King, Jr., and Muddy Waters would be copyright infringers of the highest order.  He argues that “freedom of expression” (which he trademarked for the book as an example of the extreme to which private ownership has gone) needs to have greater meaning to public life.  This ownership, branding, and franchising of life impedes innovation and creativity.  It is better for business, but worse for creative people.  Society as a whole needs the existence of “the commons”, because the alternative goes against our cultural traditions.  In the discussion of folk and blues music, he stresses the importance of building on tradition, and states that “a rented future forgets the past”. 
McLeod explains how compulsory licenses in music would help artists and the market, and how Creative Commons licenses are good for society because they increase the public domain.  He advocates for moderation, and a balanced public policy that takes into account private and public interests.  This book is Free Culture’s “hip” younger brother, and could educate younger generations and pop culture experts to the current state of copyright in the US.

This article, written by Kathleen Murphy in 1999, illustrates some of the copyright issues photographers faced in the early stages of the internet.  This was a time when the online legal rights for photographers and other content owners were unclear and untested.  The rights of photographers were entangled with the property rights of website creators and owners.  Piracy was a problem before digital photography came about, but hosting, storing and displaying photos online made it easier to steal them.  All of a sudden it only took a right click and “save”.  It was also a daunting task to try to catch and punish photo pirates, given the enormity and anonymity of the internet.
 Ms. Murphy describes some cutting-edge technology to track down online piracy, including digital watermarking and web “spider” services like Cyveillance.  She admits that nothing is perfect, and much of the work of catching online copyright infringement is left up to the photographers themselves.  Many photographers were not willing to spend the money on watermarking, or monthly service fees for services like Cyveillance.  It is easy to see how quickly online content owners were lulled into a sense of complacency, that it just “wasn’t worth it” to track down copyright infringers.  In 1999, the alternatives were pricy and unreliable.
 Another key issue discussed is that the contracts photographers signed when licensing their photos to a website were weighed heavily in favor of the website owner, and against the photographer.  Many of them took all rights from the photographer forever.  Those rights would then be transferred to a client, in the case of a stock photo website for example, and the photographer’s rights would be omitted yet again.  Licensing is only mentioned in this context, not in the context of the photographer creating or controlling their own licenses.
 The article seems to be geared toward photographers who sell their photos to “big business” or stock photo sites, and displays a desire for stronger copyright and better online piracy detection.  This was a time when the future of internet content and technology innovation was unsure.  Very few people had the insight to sense what the internet would become, or how important individual content owners would become; on sites like Flickr for example.  Creative Commons deals with some of these issues – it allows photographers greater control over their rights.  It allows people to dictate how their work can be used, and allows for the possibility that not all photographers want “all rights reserved”, as this article would suggest.  Using Creative Commons licensing on your photos will not stop piracy altogether, but it can go a length to prevent unintentional piracy, and make your work more accessible on the internet.  Creative Commons can help create a realm of work online that is in between the two extremes suggested by this article – complete anarchy with constant photo piracy, or strict licensing that takes and wields all of someone’s rights.