Google and Copyright Infringement

Google, back in 2004, began an endeavor to index the contents of an enormous number of books through its search engine, so that google users would be able to full text search books that were otherwise unpublished on the internet.  Under U.S. Copyright law, books that were published before the 1920’s (and certain texts published after that time that did not comply with the renewal requirements and were not saved by the Copyright Act of 1976) are in the public domain and can be freely copied without the need of prior consent or the paying of royalties to the author or his/her estate.  Hence, you can find a copy of Edward Gibbon’s Decline and Fall of the Roman Empire on google’s book search, because Mr. Gibbon originally wrote the manuscript well before the earliest date that the book could be protected by current U.S. Copyright law.  Of course, what got google into trouble was not long dead authors but very alive ones (or ones whose estate or a third party owned a valid copyright to the work), which led to a lawsuit against google in federal court in 2005 by several named plaintiffs and an association, the Author’s Guild, who represents over 8,000 other authors.  The Author’s Guild, et. al. v. Google, Inc., 05 CV 8136 (S.D.N.Y. Sep. 20, 2005).

The complaint in 2005 alleged that google’s indexing of these books without paying a license fee to the individual authors with valid copyrights was copyright infringement writ large, and that the indexing was done in search of advertising revenue (an expressly commercial purpose).  Infringing the valid copyright of another without paying the customary license fee is the sine qua non of an unfair use, and I suspect that were we to see this tested in a court, google would likely have lost the suit.  However, the case didn’t get very far as the parties entered into negotiations to settle the matter.  In 2008, a proposed settlement was announced (see a CNET article here) which would have had google pay the Author’s Guild about $125 million in royalties for google to continue its “exploitation” of works that were probably protected by copyright.

This settlement has not set well with others that are concerned that google’s book collection looks a tad monopolistic (including the Department of Justice, who opened an antitrust investigation according to Reuters).  There is concern in the online community that google may have control of too much information which may ultimately stifle innovation by others.  Monopolizing a market generally violates the Sherman Anti-Trust Act, which can lead the Department of Justice to file suit against the alleged monopolizer.  Such suits have caused large companies like IBM and AT&T to either stop seeming to be monopolies, or to breakup outright into smaller units.  Last year, anti-trust concerns stopped google from establishing a search marketing relationship with yahoo, even though google was probably not trying to control the world of search but just trying to help yahoo fend off a purchase by Microsoft (which ultimately did fail and subsequently led to the ouster of Yahoo’s CEO and a founder Jerry Yang, later in 2008).

Ironically, holders of a valid copyright exercise a legalized monopoly over the thing copyrighted, which, while limited to the duration of the author’s life plus 70 years, is a relatively long time.  For highly valued items, such a monopoly could effectively stifle innovation, at least for those that wish to make derivative works from the copyrighted work but cannot afford to pay the “customary fee” to the copyright holder.  Effectively, the copyright holders represented by the Author’s Guild are one set of monopolists fighting with another alleged monopolist, google, which is probably far larger, but probably not otherwise more or less sympathetic.  On the other hand, the copyright monopoly does have limits built in to the rights granted under the Copyright Act itself, including fair use under section 107, which provides for some academic and non-profit expression by individuals who would otherwise be copyright infringers.  Against google’s alleged monopoly of online information, only a very large sum of money to invest in a competing search engine can offset the market that google now controls in search traffic and search advertisements.  There is no “fair use” exception to google’s alleged monopoly over information that would balance the playing field.

In years past, the anti-trust branch of the Department of Justice may have tried to break up a monopoly and/or have a governmental agency regulate the resulting company(ies).  For example, in Maryland, the Public Service Commission is responsible for watchdogging the utility and phone companies.  Verizon, which operates in several states including Maryland, is a smaller version of AT&T from the 1970s (or perhaps larger given the overall growth in telecommunications in the U.S. over the last thirty years).

The question to be answered is whether Verizon is any more responsive to customers today than AT&T was before the big break up, and whether Verizon is any less stifling of competition and innovation than its predecessor, AT&T.  Answering these questions may help to answer whether google ought, as a matter of policy, to be broken into smaller operating groups and/or regulated by the federal government like an “internet utility” company.

With regards to responsiveness, this is a hard question to answer.  A regulated utility like Verizon is still a very large entity, and as a matter of statistics, Verizon will make a substantial number of errors in service provision and billing that will lead to user complaints.  I don’t have any hard data on complaints over time or resolution rates to compare pre- and post-break up of the entity.  And as to google, I’m not sure that this is much of an issue.  The truth is that there are other search engines in the market today, and it is very easy for an internet user to access these search engines.  They may not have the same content indexed, but all of them use some form of search advertising to help subsidize your ability to freely search on them (or you have to pay a subscription fee to use them).  The state of search today may not really compare with the customer service issues of telecom customers of years past that were stuck working with the Baby Bell to get their phone to work properly.

With regards to the problem of stifling competition, the telecommunications bust at the beginning of this century was in part the result of the Baby Bells like Bell Atlantic/Verizon who controlled the last mile infrastructure that connected competing telecoms to customers.  After a century, the Baby Bells had so much more invested in the public phone and data networks that no small start up could possibly compete.  And whether court-ordered or not, the engineers at Verizon were not going to make a competitor’s service request a higher priority than servicing direct Verizon customers.

So, if the equivalent of this is for google to keep its database of indexed books but simply share access to other search engines, I doubt the outcome would be much different – most people trying to find a book would get a better response from google’s search engine than a competing search engine.  Alternatively, if google were required to publish its search engine algorithms and code, how long and how much money would it take for a competitor to grow to sufficient size to accumulate the scope and depth of data that google now handles every day?  Ten years?  Twenty?  And would the internet be a better place because there are two identical search engines? This is like when there were two different paper phone books.  Other than the additional tree casualties, I don’t think the public was better served with two phone books, and I doubt having two identical databases on the internet of web sites would be much better, either.

What about an Internet Public Service Commission?  For the phone company, the PSC in each state is empowered to receive and investigate complaints from customers – typically about a billing problem, but the PSC investigators examine related issues as well.  My experiences with the PSC here have been positive.  The PSC’s opening of an investigation usually gets my complaint to the right person at Verizon, who is then able to resolve the problem that the customer service representative was either not empowered to resolve or unwilling to resolve.  What, then, would the IPSC be charged with handling from the public about google?  Lost documents in the internet cloud that were stored with google?  Google’s search crawler doesn’t search my site quickly enough?  My web site doesn’t show up in search results high enough based on my keywords?  Security breaches at google?

I suppose another solution would be to make google a national library and attach it to the Library of Congress, which could use the google revenue stream to pay for scanning and indexing everything in the Library of Congress to make it generally available to the public.  Unrelated parts of google could be spun off as private enterprises that would not operate with public money or public regulation (such as the cloud computing aspects of google).

Stay tuned for developments!

Health IT & Open Source

The truth is that I may just be getting annoyed about this debate.  A recent blog posting on Wired (click here for the article) frames the debate over health technology in terms of open source versus legacy or proprietary code, the latter being the enemy to innovation, improved health outcomes, and usability.

First off, an open source program is merely governed by some version of the GPL, which means that other developers can reverse engineer, make derivate works, or otherwise include your open source code in their subsequent open source code.  Developers that freely work together to write something cool are developers writing code.  They aren’t necessarily health experts, physicians, efficiency gurus; in fact, they may not even have health insurance if they live in the U.S. (1 in 6 of us are uninsured).  The fact that code is open source does have a big impact on how U.S. copyright law protects the work, but it doesn’t mean that somehow an open source developer is more in tune with health IT requirements, how to best integrate the system into a physician’s practice, or even necessarily what the actual requirements are for a physician to see a patient and document the visit to avoid liability for fraud or malpractice.  That’s because for developers, requirements come from outside of the development community, from users.

And guess what – proprietary developers of software listen to their user community to understand their requirements.  It’s part of the job of developers, regardless of whether the code is open source or proprietary.  And, for everyone participating in the global economy, the people that pay for your product generally drive the features and functionality in it.  If you can’t deliver, then your user base will go find someone else who can deliver.

Now, for larger health organizations, health records systems are a multi-year investment.  This inherently locks that health organization into a longer term, and more conservative, relationship with their health IT vendor, which tends to reduce the amount of change introduced into a health records system over time – especially for the larger vendors that have a lot of big clients.  The little developer out there writing code at 3am is certainly going to respond to market changes far more quickly than a really big corporation with a health IT platform.  But you know what?  Try getting the little guy to support your 500 desktop installations of his software 24×7.  Do you really think he can afford to staff a help desk support function around the clock for your business?  What happens when he has two customers with emergencies?  Or he wants to get some sleep?  And what about change control?  Even big vendors stumble in testing their code to make sure it works and is secure before releasing it (think Microsoft).  Solo, open source developers, even working in informal teams, are going to miss at least as often as a larger vendor, and introducing a lot more changes just increases the frequency that an untested change becomes an “unpublished feature” aka “blue screen of death.”  Trust me on this one: the health care user base is not going to be very tolerant of that.

Repeatedly, I hear the refrain that this stimulus money is going to go to systems that can be put to a “meaningful use,” and that is going to exclude rogue open source Health IT developers from being funded, squelching innovation in the market place.  I imagine that complying with the security regulations under HIPAA probably hinder innovation, too, but they increase the reliability of the system vendors that remain in the market place and reduce the risk to the data of patients that might be in their computer systems.  Setting minimum standards for health records systems may favor incumbent systems, but honestly – is that so wrong?  Isn’t the trade off here that when someone buys a system that is certified, they can have the satisfaction of knowing that someone else without a vested interest in the product, thought it had certain features or a proven record of delivering certain outcomes?  Perhaps the certifiers aren’t neutral because they come from the industry of EHRs, but if I recall correctly, the people that run the internet have committees with representatives from the internet industry, yet I rarely hear that the standards for the POP3 protocol unfairly burden new or open source developers.

That someone set standards for EHRs like a government agency is a lot like the government setting the requirements for you to receive a driver’s license.  Everyone who drives needs to understand what the red, octogonal sign with the capital letters S T OP means.  On the other hand, you may never parallel park again, but you better learn how to do it if you want your license to drive in Maryland.   Standards are always a mixed bag of useful and not-so-useful rules, but I don’t think there are too many people out there arguing that the government should not set minimum standards for drivers.  A certification requirement for EHRs to establish minimum standards is no different.  Ask the JCAHO people about it.  Ask the HIPAA police.  Ask the IT people you know.  If you are going to develop an EHR, you better secure it, make sure the entries in the database are non-repudiatable, and have a disaster recovery approach.  Don’t know what these things are?  Do your homework before you write a computer system.

Now, another refrain has been that look at how all of these proprietary systems have failed the world of health provisioning.  For example, look at how more kids died at the Children’s Hospital ER in Pittsburg after the hospital implemented an EHR (I can feel a class action lawsuit in federal court).  Who implements EHR’s in ER’s?  So the doctor is standing there and a patient is having a heart attack.  What should the doctor’s first act be?  To register the patient into the EHR and record his vitals?  I would think the doctor should be getting out the paddles and worrying about the patient’s heart beat, but then, I am an attorney and systems guy, not a physician.  Look – dumb decisions to implement a computer system should not lead to subsequent critics blaming the computer system for not meeting the requirements of the installation.  EHR is not appropriate every place patients are seen or for every workflow in a health care provider’s facility.  No knock on the open source people, but I don’t want my ER physician clicking on their software when I am dying in the ER, either.  I don’t want my doctor clicking anything at all – I want her to be saving me.  That’s why I have been delivered to the ER.

Now, VistA is getting a lot of mileage these days as an open source, publicly funded, and successful example of EHR in action.  And it is free.  But in fairness, VistA is not a new piece of software recently written by three college kids in a garage somewhere in between World of Warcraft online gaming sessions.  This program has been in development for years.  And “free” is relative.

For example, if you want support, you need to pay for it.  If you want to run it in a production environment, you will need to buy equipment and probably get expert help.  If you want to implement it, you will need to form a committee, develop a project plan, implement the project intelligently with input from your users, and be prepared to make a lot of changes to fit this system (or any system) into your health facility’s workflows.  And if you find yourself writing anything approaching software, that will cost you something, too, as most health care providers do not have a team of developers available to them to modify any computer system.  So, “free” in this context is relative, and genuinely understates the scope and effort required to get any piece of software to work in your facility.  “Less” may be a more appropriate adjective.  But then, that’s only true if you can avoid costly modifications to the software, and so far, there is no single EHR system that works in every setting, so expect to make modifications.

That’s my rant.  Happy EHR-ing!

RIAA & Copyright: $2 Million Fine Whacky Consequence of Copyright Act

The RIAA, in a new trial of an alleged copyright infringer who had shared 24 songs via the file-sharing service Kazaa, won almost $2 million in fines against the defendant calculated on the basis of statutory damages under the U.S. Copyright Act.  (See the Wired Story here)  This is an almost ten fold increase in the fines awarded to the RIAA against Thomas-Rassert from the original trial in 2007.  The basis for these fines is a provision of the Copyright Act, codified at 17 U.S.C. § 504(c)(2), which allows for a maximum fine of $150,000 on the finding of willful infringement by the defendant.  Statutory damages are available to a plaintiff who elects to not seek actual damages for the infringement proved during the trial.

In this case, the defendant Thomas-Rassert had been sharing 24 songs online.  Assuming that she had a typical aDSL connection where the upload speed is considerably slower than the download speed, and the average size of each file shared was about 3 megabytes, she would have been able to share about 0.22 songs per minute to other users of Kazaa.  If each song would have cost $1 to purchase as a single from a reputable vendor (like itunes), and she shared these 24 songs continuously for a year, the amount of lost sales to the music industry would have been about $115,632 (with about 20% of this going to the reseller and not the music companies), or about 1/20th of the damages award against her for her infringement of the plaintiff’s copyrights.  Thomas-Rassert’s own estimate of the actual damages proved by the plaintiff was even smaller – on the order of $150.  (See the filing seeking remittitur after the original trial resulted in a $222,000 verdict against her)

I certainly do not condone copyright infringement, but the damages sought by the RIAA in this case are highly disproportionate to the alleged injury to the copyright holders.  Seeking such a large fine against an individual reflects to me, at least, the frustration the RIAA has had in pursuing the makers of the file sharing platforms directly, many of whom are either out of the RIAA’s legal reach or otherwise judgment proof.  While I would not call Thomas-Rassert an “innocent infringer,” nor a “fair user” given the prior Supreme Court jurisprudence holding otherwise, I also would not call her a “pirate” worthy of the civil version of a hanging, either.  Let’s hope the judge has the good sense to reduce the fines to a more reasonable level.

Copyright and Fair Use

Jeff Koons, an “appropriation artist” who has been known for controversy in his career, has tested the limits of fair use under the Copyright Act in two cases: Rogers v. Koons, 906 F.2d 301 (2nd Cir. 1992), and Blanch v. Koons, 467 F.3d 244 (2nd Cir. 2006), with opposite results.

The United States Copyright Act grants to owners of copyrights exclusive rights under section 106, including the right of reproduction, preparation of derivative works, and to distribute copies of the copyrighted work.  17 U.S.C. § 106 (2007).  These exclusive rights, however, are subject to certain exceptions enumerated in the statute, including “fair use” as it is defined under section 107.  Besides certain kinds of academic and journalistic uses, a party can use a copyrighted work if the use falls within the factors described in section 107, namely: (1) the character of the use, (2) the nature of the protected work, (3) the amount of the work used, and (4) the effect of the use on the market for the copyrighted work.  Id. at § 107.

Under the first factor, the court weighs whether the alleged infringer stood to profit from his use of the copyrighted work without paying the customary price.  Brown v. McCormick, 23 F. Supp. 2d 594, 607 (D. Md. 1998).  While the fact that an alleged infringer profits from his use is not necessarily dispositive of his fair use defense, that there are profits without compensation to the copyright holder will weigh heavily against the “fair” user.  See Rogers, 906 F.2d at 309 (citing Sony Corp. v. Universal Studios, 464 U.S. 417, 449 (1984)).

Under the second factor, the court weighs whether the copyrighted work is more like a compilation of facts (like a phone book) or more like a creative work (like a painting).  More protection is offered to a work the more creative it is under this factor.  Brown, 23 F. Supp. 2d at 607.

Under the third factor, the court weighs how much of the copyrighted work was used by the alleged infringer in the subsequent work at issue, and how substantial that amount was as compared to the copyrighted work as a whole.  Taking a small portion of a copyrighted work that is not central to the work’s theme or thesis will tend to more often than not be protected as a fair use.  Id.

Under the final factor, the court weighs what impact the fair use had on the markets for the copyrighted work.  For example, if the copyrighted work was a photograph, and the alleged fair use was also a photograph that was sold to the same market as the copyright holder without compensation or royalties to the copyright holder, this factor would weigh heavily against a finding of fair use.  Id. at 608.

In Rogers, Jeff Koons had taken a photograph made by Art Rogers that Koons had purchased in the form of a post card in a tourist card shop and provided it to his artisans to copy for the creation of a sculpture that was to form a portion of Koons’ “Banality Show,” which opened on November 19, 1988 at Sonnabend Gallery.  Rogers, 906 F.2d at 305.  Koons provided specific instructions that the photograph was to be copied faithfully into the resulting sculpture, and visited the artisans weekly who were contracted to create the sculpture to ensure compliance with Koons’ directions.  Id.
The Second Circuit found that Koons’ use was not a fair use within the meaning of section 107 of the Copyright Act.  Id. at 312.

In Blanch, Koons had again appropriated an element of a photograph made by Blanch that was used in an commercial advertisement in the August 2000 issue of Allure Magazine.  Blanch, 467 F.3d at 247.  In this case, Koons took the legs and feet of the female model in Blanch’s photograph and then inverted the orientation of the legs so that they dangled vertically rather than horizontally as in the original photograph, and a heel was added to one of the model’s feet.  The modified legs and feet were then incorporated into a painting by Koons entitled “Niagra.” Id. at 248.

The Second Circuit found that Koons’ use was a fair use under section 107.  Id. at 259.  Why Blanch came out differently than Rogers, however, is not self-explanatory.

The Second Circuit in Blanch spends a fair amount of time around the idea that fair use is about the transformation of an existing copyrighted work into a new work with new insights and understandings about the original matter.  Koons, according to the Court, had aimed at a kind of criticism of the aesthetic employed by the advertisement in Allure Magazine, so that a neutral party would understand Koons to be commenting on the purpose of the protected photograph through his painting.  Id. at 252.

Interestingly, Koons’ sculpture that was based on Rogers’ photograph was in the context of criticism of the “banality” of this photograph, the consequent cheapening of art by its commercialization, and the resulting deterioration in the quality of society as a whole.  Rogers, 960 F.2d at 309.  The Court disagreed that Koons’ work was readily criticism in Rogers because the sculpture did not communicate that it was actually based on Rogers’ original photograph.  Id. at 310.  Of course, the painting in Blanch arguably did no better a job of announcing which or whose photograph it was actually based, even though Koons did do more work with his computer to crop and alter the original photograph before placing it into its new “context.”  Perhaps the lesson of these two cases is that painters should use the basic crop and rotate tools in Photoshop if they wish to infringe upon another’s copyrighted photograph!

Accepting that Koons’ main thrust is a social criticism of our society’s materialism, I would imagine that at least some artists (and some sophisticated members of the public) that view his work get his message.  If this wasn’t true, there would probably not be such a market to support his work.  Koons provokes a response from some artists that because his works are merely a commodity, they are not art at all.  Others are willing to accept his work in the tradition of Duchamp and Warhol, who made things that were on the fringe of what was acceptable as “art.”  Whether the general public understands what Koons’ work is about is probably a separate matter, just as it would have been for earlier artists that were pushing on the traditional notions and boundaries of art and criticism.

Does “fair use” turn on whether the public at large (the omnipresent “reasonable person” in the law), represented by the judge assigned to hear the case, understands the message of the work?  If the definition of art turned on this understanding, much art would not be recognized as “art” at all – at least not by the contemporaries of the work being defined.  Whether a work is “fair use” is a less philosophical question than whether a work is “art,” but I would argue that the question is not made easier by this distinction.  The authors of the Copyright Act acknowledged that the exclusive rights protected by the law had to be limited for the benefit of the public, and that courts (of the dubious options of the executive or the legislature) were in the best position to equitably balance these two competing interests.

But is this really a fair standard for adjudicating a copyright dispute?  The Second Circuit in Rogers stated that the “copied work must be, at least in part, an object of the parody….” They continue “[w]e think this is a necessary rule, as were it otherwise there would be no real limitation on the copier’s use of another’s copyrighted work to make a statement on some aspect of society at large.”  Id. I think most would agree that there must be some objective standards by which to find infringement or not.  But perhaps this reasoning was really just cover for the underlying feeling of the court that Koons was taking advantage of another without paying the customary fee.  The Second Circuit ultimately held in Rogers that Koons had acted in bad faith and profited substantially from his sculpture without compensating the original photographer. Rogers, 960 F.2d at 310, 305.  Somehow (maybe Koons got better attorneys to represent him), though, this sense of bad faith left the view of the court in Blanch, even though Koons most certainly profited from his unlicensed use of Blanch’s photograph (Koons’ works in both these cases sold for over $100,000 each). Blanch, 467 F.3d at 248.

Where does this leave artists?  Well, for most, these kinds of questions are academic, as most artists do not have the financial wherewithal to go through civil litigation to avoid paying a royalty to a photographer.  “Transforming” and not acting in “bad faith” appear to be the guide posts for acceptable fair use, but there would seem to be a rather wide field between these two guide posts.  Perhaps the next Koons lawsuit will settle things!  Stay tuned.

Marketing a Law Practice Online

I have heard from a number of new attorneys about how to market yourself online through a web site.  I thought I would share some thoughts about this here on my blog, based on my own professional experience as a web developer and entrepeneur.  As always, if I can be of further assistance, don’t hesitate to contact me.

First Things First – Get a Domain Name

You will need to pay to register a domain name, like, with an internet registrar, such as Network Solutions.  This is required in order for all the other computers on the internet (well over a billion) to be able to find your site’s location on the network server that will hold your web site’s files and data.  Network Solutions was the original registrar back in the bad old days, but today there are a number of registrars that you can work with (try searching with google to find others).  Be sure to pick one that looks like they are going to be around for a while (and that may not be the guy that registers domain names for $10 for 1,000 years).

Your domain name should make sense based on the name of your practice, your specialty, and should ideally be short.  Don’t try to use a famous trademark as your domain name or you will get in trouble!  Don’t pick a name that is three hundred characters long, either.  And your name should usually end in .com.  There are other possible domains, like .biz or .tv, but these have really not caught on for the average internet user looking for your site.

Web Site Hosting

Your web site has to physically be located as a set of files on a server that is connected to the public internet.  You will generally have to pay someone who is in the business of hosting sites for this service, unless you have a T1 connection at home with a static IP address and your service contract allows you to host sites.  There are a lot of businesses that offer web site hosting.  You may want to find a hosting company that will support multiple web languages, backend databases, blogging, and other features, even if you don’t need that right away.

Content of Your Web Site

Your web site should be straight forward for your users to get around, and should have a basic navigation scheme that highlights your skills, services, and a way for users to reach you.  Think of what you would put on a brochure that you would mail to prospective clients and put that on your site.

Be careful about the graphics or other art that you place on your site.  Using other people’s art without a license or express right can get you into trouble, especially if your site gets a lot of traffic.  There are a number of services that you can purchase that will allow you to create a web site from a template (this service is often wrapped up in the hosting of the finished web site itself).  Be sure to read the contract before you sign up for the service.

Meta Tags

Meta tags are a special hidden indexing tool that helps internet search engines like yahoo and google to properly index the content of your site.  These are placed in the header section of each web document, and are basically a list of the words that describe the content of your site, like “attorney,” “copyright infringement,” “tenant and landlord,” “intellectual property” and so on.  You may or may not have the ability to add this to the header of the documents that you post, but check with your service provider or hosting company about editing these tags.

Blogging and Dynamic Content

Once you have your site up on the internet, you need to make a note on your calendar to update the content of your site on a regular basis.  And by regular, I do not mean once every thirteen years.  You should have a section of your site for news, and you should post updates to this section on things that are going on with your firm.  You can also create an online blog, like this one, and post news and updates to it.  This is good for several reasons.  One, the search engines stop by your site regularly and they see what is on the site.  New content will get indexed by them, which helps to increase the chances that someone searching for you will find your web site.  Two, people that actually do come to your site will think you actually still exist and are actively working as an attorney.  And three, the more content you have overall, the more established you will appear to others that might be researching you, including other attorneys, especially if you can demonstrate some expertise in your area of the law.

Online Adverts

Google, Yahoo, and MSN probably make up 95% of all the searching of the internet today, with Google making up nearly 60% all by themselves.  All three of these allow you to pay for advertising, which basically helps to make sure that, based on the keyword search, your web site will show up towards the top of the search results.  Generally speaking, this is the entire web search game.  If your site is indexed but consistently appears as search result 624,691,504 out of 624,691,505 results, no one will ever find your site via a search engine.  That makes the search engine pretty much useless to advertise your site, and by extension, makes your web site kind of useless (I mean, people will find your web site if you meet them in person and give them your business card with your web address on it, but how many people can you meet in person to do that?).

Of the three, I would recommend starting with google.  The cost to run an ad with keywords is generally minimal to start, and you only pay if someone clicks on your ad and comes to your site.  Now, not many of the clickers will become customers, but you don’t need a million customers to start.  In fact, you may only need just one.


Some web site hosting companies will provide you with statistics on your web site’s utilization.  These stats are very helpful as you begin to develop your site and want to measure how successful your efforts have been, because you can compare site activity before and after you begin advertising in various places.  Also, most web servers will allow you to collect referer data, which you can use to see how people get to your site, such as a search engine or other web site address that has a link to your site.

So, for example, if you are advertising on google, google will tell you how many times someone clicked on your ad in a given period.  You can then query your web site itself to see how many people used google to search for you and what search terms they used to find your site.  If your google had got 2 clicks in a month, but people got to your web site via a google search 60 times, you might need to change your ad on google, or change the keywords that you are advertising to match how people got to your web site.

Or, if you are advertising on yahoo, but all of your referers are from MSN or AOL, you might stop advertising on yahoo and start advertising on one of the other search providers or services.

Market From Multiple Angles

Marketing is all about advertising in multiple ways at the same time.  So, if you are considering building a web site and advertising from it or about it, also think about other places you can get the web address in front of your prospective customers.  Also, think about what’s cost-effective for you, especially if you are just starting out as an attorney.  Ads in a major newspaper that you run weekly for a year are going to cost thousands of dollars, and it is very hard to measure what impact these ads are having on those that contact you.  But, you can put your web address on your business cards, stationery, on other materials that you handout to prospective clients, perhaps on direct mailings that you send to prospective customers, and as a tattoo on your forehead (that will go over well in court!).

Good luck in your efforts and contact me if I can be of service.

Tim Faith, esq.

Online Virtual Realities – Do You Know Who Owns Your Virtuality?

Second Life, a virtual reality simulation system available online, is a privately managed computer system that allows “real” people to participate in “virtual” activities within the system.  You can download a copy of the program and login for free at Second Life’s website.  But, if you do, you’ll notice that you have to consent to a rather lengthy (which is kind of normal for these sorts of sites) online agreement that governs the terms of service of the site.  Undoubtedly written by risk-conscious lawyers, the terms of service give users a more or less one-sided set of rules that govern the basic way that the site will operate.  These terms include a number of discretionary matters reserved to the good folks at Linden Labs, that creator of Second Life.

In reality, no one but you owns your right to exist or engage in interactions, so it is a little unsettling that a private company has, in its discretion, control or ownership over your virtual existence.  But, like most of us children of the internet age, we quickly breeze through such concerns.  What’s more interesting about the agreement relates to the copyright possessed by users of Second Life.  As students of copyright law can surmise, Linden Labs is an author under the Act.  The system it has created is a copyrightable work, which includes the audio visual presentation, along with the application code underneath that makes things work within the system.  Individual users have a license to access the system and roam its virtual landscape, but are also empowered, effectively, to create their own little derivative works.  The system gives users the ability to create new objects within Second Life, upload images and pictures, and then buy and sell those virtual objects to other users in the system, in exchange for a virtual currency that is managed by the system creator.

Normally, Linden Labs would have an exclusive right to create derivative works.  However, under the agreement with Linden, users are able to retain an exclusive copyright in the virtual objects that they might create within the system.  This likely includes programming code users can generate themselves within the system to automate or otherwise cause virtual objects to interact with Second Life in particular ways.  Section 3.2 of the current agreement describes this right and the limitations upon it.  So here’s an interesting question: how do you go about enforcing your rights under the Copyright Act in the event of a potential infringement?  Today, you generally have to sue in a real court of law somewhere, and gain personal jurisdiction over the alleged infringer, who may not even live in the United States (it is the internet where this system exists).  But Linden, to date, has not established an internal judicial system within Second Life that might have the ability to bind users of the system to the outcomes of adjudication of claims within the system – virtual complaints, claims, and so on.  Perhaps there will one day be a virtual 15th circuit in the federal court system that operates in systems like Second Life.

In the meantime, I think it would be interesting to see if it would be possible to create an informal arbitation or mediation system within Second Life that might provide an alternative way for users in the system to settle disputes over virtual land, goods, warranties of fitness, and the like.  See you in Second Life!

eBay Copyright Infringement in France

eBay, according to Yahoo News, was held liable for infringement of a number of copyright holders based in France.  See the Story.  This is a surprising result, especially given the large fine against the online retailer.  With regards to vicarious liability, under US Copyright law I would imagine this result would be quite surprising, especially when eBay serves so many customers and has not built its business around selling or buying counterfeit products.  eBay got its start advertising to individuals to sell their old junk, and they still are known as the online garage sale or flea market.

Duration and Renewal

Under the present copyright act, the typical duration of a copyright is the life of the author, plus 70 years (works for hire and anonymous works endure for 120 years from creation or 95 years from publication, whichever is shorter). Section 302(a), (c). Unfortunately, it gets a little more complicated for works fixed before 1978 when the current copyright act went into effect. The rules vary for works based on whether they were published or not before 1978.

Under section 303, published works that were fixed before 1923 (95 years is the maximum copyright duration for works published before 1978) are now in the public domain. Works published after 1923 and before 1978 enjoy a maximum of 95 years of copyright protection under the act. However, that copyright protection is tied up with the renewal process, which was required every certain period of years under the 1909 act. If a published work required a renewal to be filed with the copyright office before 1964, and the author failed to appropriately renew, that published work would become a part of the public domain and lost its copyright protection. However, the authors of the 1976 act did look back to works that required a renewal after 1964, and made the renewal automatic for all those works. As of today, the maximum period of copyright protection is 95 years for works that were published before 1978.

As to unpublished works, these works were not protected by federal copyright until 1978. Therefore, states provided varying degrees of protection. The 1976 act authors wanted to preempt state copyright protection, by providing protection for all works that were fixed, regardless of whether the work was published or not. For unpublished works that were made recently to 1976, giving these works protection for the life of the author plus fifty years (now seventy years) would be reasonable. But what about works that were unpublished but originally fixed in the 1800s? Some state laws provided for perpetual copyright protection, which the federal law could not provide because of the constitutional mandate.

Congress decided that section 303(a) would provide a savings clause for works unpublished before 1978: if published between 1978 and 2002, the works would enjoy protection until at least 2047. If the works were unpublished in 1978 and remained so in 2002, copyright protection would continue until at least 2002.

Now, renewals are today automatic under the Act. However, the renewal intervals serve a second purpose, which is found in section 304 – the ability of the heirs of a deceased author to terminate transfers of rights of the author’s copyright by providing notice to the party or parties to whom the copyright was assigned. The timing to terminate such a grant is keyed to the renewal cycle of the copyright. See Section 304(c)(2).

Contributory and Vicarious Liability

The Supreme Court has addressed the problem of second party liability in a series of cases that go back to the 1980’s with Sony. In that case, the Supreme Court addressed the question of whether a neutral technology such as the VCR, with substantial non-infringing uses, could survive a copyright infringement lawsuit, and by extension, whether the manufacturer of that technology could be liable for the infringement of its end users. The Court held by a narrow margin that the VCR, because it could be used to record non-copyrighted materials or could be used for time shifting of copyrighted materials for later viewing, was covered under the doctrine of fair use.

In the late 1990’s, technology had advanced with the sharing of mp3 music files on such popular file sharing programs as Napster, Gnutella, LimeWire, and Grokster. Each of these variations on the mp3 file sharing technologies got its day in court, and all were held to be infringers who were not exempted by section 107’s fair use safe harbor. Why the change? Sony in the 1980’s was not marketing expressly to infringe on the copyrights of others. In addition, the parties representing the copyright holders were a smaller group of the overall parties with a copyright interest in the Sony case. However, by the time that Napster came to court, the Recording Industry Association of America (RIAA) represented most of the interested copyright holders as plaintiff, and evidence of illegal file sharing was quite clear from the statistical analysis and data collected from the defendant applications by the plaintiffs.

Justice Suter, writing for the Court in Grokster summed it up as there could just be no way that a court could find for the defendants, given the enormity of the evident theft of copyrighted materials via the Grokster service. Further, the defendant specifically marketed itself as a way to continue to infringe otherwise valid copyrights once Napster’s service was shut down by court order.

Work for Hire

Section 101 provides a definition for work for hire: “(1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned for use as a contribution to a collective work, as part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument…”

If a work is considered a work for hire, the hirer or employer holds the copyright of the work.  Much litigation has ensued about this between parties that have worked together to make some final work, and between employers and employees.  The Supreme Court in Community for Creative Non-Violence v. Reid established a set of factors from the Restatement of Agency to aid courts in determining if one of the parties was an employee of the plaintiff.  These factors include: (a) right of hiring party to control manner and means of production, (b) the skill required to complete the work, (c) source of instrumentalities and tools for the work, (d) location of the work, (e) duration of the relationship of the parties, (f) whether hiring party has right to assign other projects to hiree, (g) discretion of the hiree over when and how long to work, (h) method of payment for the work, (i) hiree’s role in hiring and paying others to assist with the work, (j) whether the work is regular work of hiree, (k) employee benefits, and (l) tax treatment of the hiree.  In Aymes v. Bonnelli, the court held that not all these factors are equally important, and whether or not the employer pays social security taxes and other benefits for the alleged employee will always be relevant to a finding of the status of the hiree.

If the hiree is found to be an employee, the next question is whether the employee was acting within the scope of his employment.  Avtec v. Pfieffer held that the factors in section 228 of the Restatement of Agency would be used to determine if the work was completed with the scope of the employee’s employment.  These factors are (a) if the work is of the kind the employee is employed to perform, (b) the work occurs substantially within the authorized time and space limits of the employment, and (c) the work is actuated by a purpose to serve the master.

If the employee is not acting within the scope of his employment, plaintiffs will then look to determine if part two of the work for hire definition is relevant.  Generally, courts require there to be a written agreement between the parties indicating that the party commissioning the work will own the copyrights to the work, and the work itself must fit within one of the categories in the statutory definition.

If neither of the two clauses of the work for hire definition fit the fact pattern, the independent contractor will hold the rights to the copyright.