NEW YORK — A judge has dismissed copyright lawsuits between an artist who created the Barack Obama “HOPE” image and The Associated Press but has left a March trial date in place for related claims between the news service and companies that sold merchandise using the artist’s image.

U.S. District Judge Alvin Hellerstein said in a one-page order publicly filed Tuesday that a “suggestion of settlement” led him to dismiss claims between artist Shepard Fairey and the AP. He said the claims could be reinstated within a month if either side requested it.

The judge said other claims between the AP and Fairey-related companies that manufactured or marketed products based on the image will be put before an eight-person civil jury on March 21. Lawyers on all sides did not immediately return messages seeking comment Tuesday.

The dispute stems from an AP picture taken in 2006 when Obama, then a U.S. senator from Illinois, was at the National Press Club in Washington.

Fairey used the photograph when he created his artwork during Obama’s 2008 run for the presidency. In 2009, he sued the AP, seeking a court declaration that he did not violate AP’s copyrights when he made the Obama image.

The news cooperative countersued, saying the uncredited, uncompensated use of its picture violated copyright laws and was a threat to journalism.

Last year, it was disclosed in court that Fairey was under criminal investigation after he said he erred about which AP photo he used as a basis for “HOPE.” He also had acknowledged that he had submitted false images and deleted other images to conceal his actions.

The red, cream and light-blue images show a determined-looking Obama gazing upward, with the caption “HOPE.”

It was unclear how a dismissal of claims between Fairey and the AP would affect legal fair use arguments over whether Fairey altered the original image of Obama enough that he did not infringe the AP’s copyrights.

Court papers submitted by lawyers for the AP and makers and distributors of apparel and other merchandise using Fairey’s image suggest that those arguments to some extent will remain part of the case.

Lawyers for clothing manufacturer One 3 Two said in court papers that the “total concept and feel” of the AP picture and the Obama image were different. They said that while the AP picture “depicts a portrait of President Obama suitable for news reporting, the Obama Image is an iconic piece of artwork that has an edgy, provocative feel that is characteristic of Fairey’s street art.”

The company said it has an indirect contractual relationship with the artist and has asked the judge to rule it did not violate copyrights. It said it is the exclusive licensee of Obey Giant Art LLC, which is affiliated with Fairey. The company said it had nothing to do with creating Fairey’s images as it sold apparel and other merchandise using the art.

In papers filed last week, the AP said the case presents “the straightforward question of whether a T-shirt company may use a nearly verbatim copy of a copyrighted image to generate millions in dollars of revenues for itself without securing the permission of the copyright owner.” The company called the legal issues “garden-variety copyright infringement matters.”

The AP said the T-shirt company, Obey Clothing, between March 2008 and September 2009 sold approximately 233,800 pieces of merchandise bearing an image that copied the Obama photo.

The AP wrote that Fairey’s image was a “nearly verbatim copy” of the Obama AP photo, incorporating the “protectable expressive elements in the photo almost entirely – down to the twinkles in then-Senator Obama’s eyes.”

Our PDFs are DRM free because we trust our customers to do the right thing. Reasonable sharing, as you would do with a print book, is allowed. You are free to copy and paste and print the document for your personal use. You are not allowed to place the content on a server for downloading, and you should purchase a site license if you wish to share the PDF with a group of developers on an Intranet.

If we could ask Christopher Marlowe, he might say “yes.” OTM’s Mike Pesca, however, argues that most readers today take an Elizabethan approach to intertexctuality:

“Plagiarism is constantly in the news these days, as it was in 2006 when Harvard student Kaavya Viswanathan’s How Opal Mehta Got Kissed, Got Wild, and Got A Life was exposed as less then original. But, as we know, claims of literary plagiarism go back centuries. So why do people still get so worked up about it? Mike Pesca reflects on the past, present and future of plagiarism.

Meanwhile, Slate editor Jack Shafer discusses the dirty dozen excuses for plagiarism cited by journalists who are caught out:

Slate editor-at-large Jack Shafer has been covering the plagiarism beat for some time and he’s found that throughout every scandal the excuses remain the same. On the heels of two plagiarism scandals last month, he talks about a list of twelve common plagiarism excuses he calls “the dirty dozen.”

Follow on Twitter: @on_the_media

Whatever one thinks of Google (and all publishers think about Google), there is little doubt that in just a few years, Google cofounders Larry Page and Sergey Brin have become the most influential people in the publishing industry, at least in the U.S., taking that distinction away from Jeff Bezos.

… Google is now the defining entity in the information landscape.  To flourish, as best as publishers can hope to flourish, it’s necessary to find a place within the Google ecosystem.  There is no world elsewhere, no little pocket of commerce beyond the reach of Google’s audience aggregation, no opportunity to erect protectionist barriers or to appeal to the legacy of one’s own institutions.  To those who resent Google’s huge bulk and ambition, it has to be said:  Get over it.

… With the invention of the motion picture by Thomas Edison, the book lost its place as the center of the media universe.  All other innovations, from radio to television to the Internet, helped to push the book out further.  Now we live within a media landscape that has no center, but which does have a dominant issue, and that is the matter of online discovery, for which search engines, and Google in particular, are the dominant modes.

For publishers, this is the Google century, or maybe just the Google decades, but either way, not to engage this extraordinary organization is likely to lead to obscurity. Read more

Thanks to Eric Rumsey (Seeing the Picture, @ericrumsey) for pointing me this post.

The essay begins with a hypothetical problem posed by Jack Goody which was hardly hypothetical for me:

Goody (1977) poses a problem that both intrigues me and stirs a lingering doubt about the nature of my own literacy. In a discussion of Thomas Kuhn’s book, The Structure of Scientific Revolutions (1970), Goody asks this of his readers: “Imagine (though it is a fanciful task) Kuhn’s book as an oral discourse” (p. 49). Listening to such an oral discourse, Goody explains, would preclude a process essential to reading written texts visually. This process involves the recursive scrutiny of text to detect, compare, and resolve inconsistent meanings. It is a literacy skill that Goody and others regard as the cornerstone of critical thinking.

Close critical reading (and notation) of the book’s first edition led scholars to identify multiple, inconsistent usages of Kuhn’s seminal concept — the paradigm. Kuhn acknowledged and amended the inconsistencies in the book’s second edition. Goody maintains that, for the listener, such discrepancies in the text and the critical thought it represents would be “swallowed up in the flow of speech… the spate of words, the flood of argument, from which it is virtually impossible for even the most acute mind to make his mental card-index of different usages and then compare them one with another” (p. 49-50).

Goody’s fanciful problem haunts me sometimes because it is not fanciful for me. Listening to a recorded version of The Structure of Scientific Revolutions is precisely how I read the book.

And the essay concludes:

When I first learned that The Structure of Scientific Revolutions was available as a recorded book, I was thrilled. A book that I had heard about for years, a book which continues to enlarge the philosophy of knowledge in and beyond the sciences, was accessible to me. Access to information (in other words, decoding the text) is the first challenge to the literacy of blind people, and lack of access is the greatest barrier limiting that literacy. Access is not enough, however. Functional capability and social efficiency are not enough. A literacy acquired, maintained, and advanced through the oral-aural mode is capable of truly protean shapes; understanding their contexts and processes is the key to achieving a literacy without limits.

For the sake of my own literacy as well as the literacies of many other blind readers, I am pleased to report that the literate technologies available to us are far greater now than I could have imagined in 1994. Thank you, David, for bringing me back to this text.

[see the Reality Hunger website]

My particular concern in the Fair Use Lab is access and accessibility to books, literacies, and cultures for blind readers. That is but one niche within the kind of ecosystem that Lessig describes, but I think the concerns resonate at both micro/macro levels.

via MediaBerkman

… the final straw may be the Obama administration’s opposition to a proposal on copyright exceptions for the visually impaired. About 95 per cent of books are not available for blind or partially sighted readers. Some countries have exceptions in their laws which, very sensibly, condition the grant of the copyright monopoly on a (very) few public interest limitations, such as the right to make non-commercial versions of works one has legally purchased in order to make them accessible to the visually impaired. (For example, generating a machine-readable audio book, or a Braille version, from a legally purchased digital text.) The proposal would generalise and harmonise those exceptions. It is backed by a number of developing countries and opposed – quietly – by the US and most of the European Union. Hip-deep in a colossal market failure on a global scale, they say optimistically that the market will provide an acceptable solution, though there is overwhelming empirical evidence that it will not.

Why oppose this proposal? Scaremongering aside, there is no real threat to anyone’s business model here. But if one sees any limitation of the most extreme version of copyright as a dangerous and ideologically driven attack on property itself, well then, one must fight. This proposal represents the ideas that rights should have limits and that we should harmonise limitations and exceptions as well as rights themselves. It is that principle, the principle of balance, that must be resisted. Even if it puts one in the embarrassing position of – ever so pragmatically – sacrificing one’s blind citizens to an industry agenda. In a world where we have to deal with torture and climate change and the collapse of our economic system, this little piece of moral cowardice is not something many people are going to notice. But it leaves a nasty taste in the mouth, nonetheless.

I can attest to Boyle’s assertion that accessible texts don’t harm anyone’s business model. I downloaded his most recent book, The Public Domain, as soon as I heard about it. I modified the file architecture to make it more usable with my screenreader, and it became one of the adaptable, accessible texts that inspired the Fair Use Lab. Along the way, I bought a print copy of the book, too.

Economists Felix Oberholzer-Gee and Koleman Strumpf have just released a new Harvard Business School working paper called File Sharing and Copyright that raises some important points about file sharing, copyright, and the net benefits to society. The paper, which includes a helpful survey of the prior economic studies on the impact of file sharing, includes the following:

1. The data indicates that file sharing has not discouraged creativity, as the evidence shows significant increases in cultural production. See data summary

2. The paper takes on several longstanding myths about the economic effects of file sharing, noting that many downloaded songs do not represent a lost sale, some mashups may increase the market for the original work, and the entertainment industry can still steer consumer attention to particular artists (which results in more sales and downloads).

3. The authors’ point out that file sharing may not result in reduced incentives to create if the willingness to pay for “complements” increases. They point to rising income from performances or author speaking tours as obvious examples of income that may be enhanced through file sharing. In particular, they focus on a study that concluded that demands for concerts increased due to file sharing and that concert prices have steadily risen during the file sharing era. Moreover, the authors’ canvass the literature on the effects of file sharing on music sales, confirming that the “results are decidedly mixed.”

The authors were one of the first to challenge the early claims about the effects of file sharing. Years later, many other economists have followed suit (including the study funded by Industry Canada). This latest paper does a nice job of expanding the discussion, by using the data to examine incentives for creativity and the effects on aggregate creator and industry income.

See Michael Geist on The Case for Fair Use in Canada.

PARIS (AFP) — A controversial French bill to combat Internet piracy by cutting off the web to illegal downloaders won final approval Wednesday in the Senate.

The legislation, described as one of the toughest ever drafted against Internet piracy, will punish those who download music and film illegally by shutting down their Internet access for up to a year.

The bill was passed by an overwhelming majority of 189 to 14 in the upper house, setting the stage for President Nicolas Sarkozy to sign it into law.

But the Socialist opposition has said it planned to ask the Constitutional Council, France’s highest authority, to rule on the legality of the bill.

Under the bill, a state agency known by the acronym Hadopi will be set up to track and punish those who download films and songs without paying, serving as a go-between for content providers and Internet service providers.

The legislation will set up a “three-strikes” system for offenders who first receive an email warning, then a letter and finally lose their Internet account for up to a year if they are caught a third time.

The bill enjoys broad support from the music and film industry in France and abroad, but consumer groups and the Socialist opposition have warned it will be difficult to implement.

Opponents say the bill fails to give alleged offenders enough recourse to challenge accusations and they argue that web innovations will make it possible for downloaders to avoid detection.

The National Assembly passed the bill by a vote of 296 to 233 on Tuesday, a month after the text was rejected in a surprise setback for Sarkozy, who has championed the measure.

Major record labels, recording artists and film producers welcomed the outcome of the vote and urged the government to act quickly to implement its provisions.

“This legislation, long-awaited by songwriters and composers, is a welcome step forward after many years of laissez-faire,” said Bernard Miyet, president of the SACEM group representing composers and songwriters.

French chanson entertainer Charles Aznavour, a vocal supporter of the measure, said the stakes were especially high for the new generation of artists who are struggling to make a living from music.

“If the youth can’t make a living through creative work, they will do something else and the artistic world will be dealt a blow,” said Aznavour who was in France for the Cannes film festival.

“There will be no more songs, no more books, nothing at all. So we had to fight.”

So where did you get those Carla Bruni downloads? Off with your Internet! NPR report imagines the punishment for pirating songs by the French President’s wife.

At a recent panel at South by Southwest Interactive, a Web conference in Austin, TX, panelists suggested that the creators of online content need to use the wide distribution of pirated content, instead of trying to stop the piracy. Some companies are doing this by making it easier to use third-party content with permission, while others are working on technologies that can find content wherever it ends up, and sometimes serve ads along with it.

“For every article, we typically find 20 copies around the Web, some full and some partial,” says Rich Pearson, vice president of marketing for Attributor, a company that specializes in identifying text and video that appears online for its customers. After breaking a customer’s content into small chunks, Attributor creates digital fingerprints for each chunk. Its system then crawls the Web and searches for matches for those fingerprints, notifying the owner of the results.

But content creators are already changing their attitudes toward the piracy they discover. Matt Robinson, Attributor’s vice president of business development and partnerships and a speaker at South by Southwest Interactive, noted that, two years ago, most of Attributor’s customers used the technology to serve takedown notices. Today, he said, most are using it to gather statistics on where their content is appearing.

Attributor is addressing the problem in two ways. First, the company is working with online ad networks to share revenue with the owner of any content that appears on an ad-supported site. Attributor is also testing code that attaches ads to articles, no matter where the article appears. A site can grab an article with permission, as long as the code that handles the ads is in place. Robinson noted that there’s still a lot to work out, such as figuring out the minimum amount of compensation that the content creator should accept.