Netflix and Comcast enter agreement to speed up streaming: 5 consequences for you and me

I hope you like Netflix. I know I do. Good thing. Because this week the world changed in a way to make Netflix even more likely to be your only real option in streaming media.

Two reasons museums charge for reproductions (and one consequence)

By way of The Digital Reader, I've just read an interesting article that I think misses a very important point. That point leads to two of the bigger and related themes I'll be exploring here in 2013, as well as one of their consequences.

The article, linked below, laments that many famous works of art aren't available in high-res and so they can't be used in teaching. It sets forth the reason for this as being because museums are overreaching, using their legal rights of control over the environment where these works are stored, or the license terms of their own photos and the websites where they are displayed, as a way to stop otherwise-permitted reproductions of works that would be in the public domain. (I'm oversimplifying but I don't think I'm changing the thrust of the piece; read it and make your own decisions.)

Yes, if it wasn't for copyright and the control it gives over images and reproductions the museums wouldn't be able to stop this kind of thing. But that's putting the cart before the horse.

Why is it so hard to stop patent trolls?

In the right hands, patents are good for inventors and for society. The monopoly they give allows for companies to do R&D work and commercialize that work, creating things that are a net gain for all of us.

The problem is, there are also companies out there that never make anything. They just see an issue, think about what kinds of things might somehow be related that issue, and then file patents based just on the description of how something should work rather than on something they've actually done. They never manufacture anything using that patent. They never even have any intention of doing it. Their definition of "doing business" with their patent is to find people who they think are doing something similar to the things described in their patent, contact them, and offer to license or even sell the patent. Meanwhile the companies that license or buy the patent just keep doing what they were doing, making things to try to help the world.

I have, of course, just described startup pharmaceutical companies.

Three reasons the ex-Register of Copyrights doesn't like change (and one reason he's wrong)

"[Aereo] appears to have been designed by a copyright lawyer peering over the shoulder of an engineer to exploit what appeared to Aereo to be a loophole in the law and shoehorn the Aereo business model into the Cablevision decision"

Designed by a copyright lawyer... He says that like it's bad!

Okay, maybe I'm kidding. And some background may be helpful.

Ralph Oman, the retired Register of Copyrights (the person who runs the office that handles copyright registrations), has filed a brief in the ongoing Aereo litigation. Aereo, as you may know, is a service that uses thousands of little antennas to capture over-the-air TV broadcasts and stream them. One stream per subscriber. Why not have one big antenna? Well, that takes some explaining too.

Siri: is this lawsuit too clever by half? Maybe, but maybe not.

"Siri: Tell me whether you're in sales."

That may be a question that no one with an iPhone 4S has ever asked. But for at least one plaintiff in San Francisco, it's a question that Siri should answer honestly.

Three basic questions about using real people as inspirations for your characters

Authors, filmmakers, and other creatives have always built their stories from their own experiences. Being inspired by real events and real people is almost impossible to avoid. But sometimes people go a step further and build their creations directly from reality, including real people or real events that can be traced back to real people. And, when done right, this can lead to increased interest translating into increased sales. As a wise gnome once said, Step 3 is Profit!

But doing it wrong can lead to real problems.

Although there's more than just four things to consider when using real people in your creations, the questions I've gotten have revolved around three big issues.

A fresh analogy for file-sharing: the tomato

Sometimes a cigar is just a cigar, but sometimes a tomato is a piece of music. Did that make any sense? After reading the article linked below, it just might. And even though I think the analogy doesn't work perfectly, it leads to some very interesting perspectives on digital downloads and content creation.

The instructive comparison in the article is this: people say that digital content is a totally new type of thing because it can be reproduced forever without depriving the original owner of the original item. (The technical name for this type of copying is "lossless".) But that's not true. There's another type of thing that can be copied forever in a lossless fashion.

Could you do me a favor?

I'm trying to get a sense for new topics that you'd like to see covered and other related things. SurveyMonkey is my friend. Could you go here and give me some info? I'd be much obliged... I don't have anything free to give in part because I don't know what would be enticing!

http://svy.mk/Qy8V7o

Avoiding option clauses and cross-collateralization by using LLCs

A short post today, but hopefully a helpful one.

I've recently seen people complaining of two standard problems with traditional publishing contracts:

• Option clauses: where publishers require you to give them an option on your next book.
• Cross-collateralization: where publishers won't pay you royalties on your first book until you've paid back the advance on your second.

It seems to me that there's a very easy way around each of these problems.

1DollarScan, Cablevision, and two reasons you can't always get what you want

Books are portable. But one company wants to make your books even more portable than they already are. So why is the Authors' Guild so angry about it, and do they have any right to be?

In an interesting deal announced last week, a service called 1DollarScan has closed a partnership with Evernote to take your physical books, scan them, drop them into your Evernote account, and then destroy the original copy you sent them (it would appear that it actually gets destroyed as part of the scanning process). 1DollarScan apparently already had deals with services like Dropbox and some others. But linking to Evernote, one of the most widely-used note-taking services out there, appears to have brought a lot of attention to 1DollarScan, including some it may wish it had never attracted.

According to Publishers' Weekly, the Authors' Guild has made some statements that 1DollarScan is violating copyright law and infringing the author's right to choose whether their book should be made available digitally. Unpacking this statement gives me a chance to look at two often-misunderstood issues around content creation: whether making copies breaks the law, and why media companies don't think like people.

It's not okay just because it's free: three myths (and two truths) about fair use

[Note: this is part 4 of a 4-part series on fair use.]

The last portion of the fair use test, the effect on the original market for the work, is one of the most commonly-misunderstood elements of copyright law.

The test itself seems like it should be fairly straightforward but in fact it's not. The relevant text, "the effect of the use upon the potential market for or value of the copyrighted work", looks like it only addresses the specific use made in the specific context. But that's not what courts will actually look for: they will ask both whether the specific use that you're making of someone else's work is going to affect the potential market for or value of the work, but also what would happen if everyone started doing it.

That's right, judges are just like your mom.

Correcting two common mistakes about how much fair use is too much

[Note: This is part 3 of a 4-part series on fair use.]

Plagiarism makes the news all the time, and rightly so. When an author borrows from another author or a musician from another musician, this feels wrong if it happens without permission and it's a ripoff, but okay if it leads to something fresh and new. How can a creator know how much is too much to take?

I've previously addressed the first two parts of the fair use test: looking at whether the use is transformational and looking at the nature of the original work. The third element of the test requires you to consider the quantity and value of the portions of the original material that you're using in your new work.

The best way to explore what this means is to correct two commonly-made mistakes about this part of the test:

Two points on the nature of the original work and how they affect fair use

[NOTE: This is part 2 of a 4-part series on fair use.]

Determining the nature of the original work is the second element of the fair use test. It's a bit more straightforward than the transformational use test:

1. What kind of work is the original? Is it fiction, which has a creative element to it? Or non-fiction but containing lots of analysis? Or is it more like a phone book or a database? The less creativity or analysis that went into the work, the less likely a court would be to find infringement. It's difficult to infringe the copyright in a telephone listing.
2. Was the original work published? If it was unpublished then it will get a bit more protection, because it didn't have a chance to find its own market.

Transformational use: more than meets the eye?

[NOTE: This is part 1 of a 4-part series on fair use]

Other people have good ideas. Sometimes so good that you want to build on them yourself. That can get you in trouble, or get you a lot of money. It all depends on how you do it.

I've previously written about idea theft, and will return to the topic again. Fair use is in many ways the mirror image of idea theft: it's when you deliberately take someone else's work and use it as a basis for yours. It's permitted, but only under certain circumstances. The first thing to check is whether your proposed use is transformational.

The text of the statute is actually pretty short: step one of the fair use analysis requires you to determine "the purpose and character of the use, including whether such use is of a transformational nature or is for nonprofit educational purposes". But short doesn't necessarily mean easy to understand. I'll unpack it.

Fair use and unfair theft: how can a creator understand these rules?

It is a truth universally acknowledged that a single lawyer in possession of a great tort claim must be in want of a life.

If you've ever read a book in your life, you should recognize that statement as a riff on the first line of Jane Austen's "Pride and Prejudice". Am I allowed to use Jane Austen's work as a springboard for my own? Answering that question requires me to spend the next few posts (subject to interruptions by more newsworthy events) to explain one of the most commonly-invoked but least-understood aspects of copyright law: fair use.

In order to understand fair use, you need a quick overview of how copyright comes into existence in the first place:

Do you know more about endorsements than large companies and law firms?

Bloggers and other reviewers all seem to know they need to pay attention to the FTC Endorsement Guides. Maybe large companies haven't quite gotten the message? That seems to be the suggestion of at least one Federal District Judge.

Some background. Google and Oracle have been going at it for a while about whether Android infringes on software copyrights patents owned by Oracle and implemented in Java. Google came out (mostly) the victor. But there's some post-trial matters still to be addressed and so the trial judge, Judge William Alsup in the Northern District of California, still has jurisdiction over the case.

In an order handed down on August 7, Judge Alsup ordered each of Google and Oracle to produce a statement "clear[ly] identifying all authors, journalists, commentators or bloggers who have reported or commented on any issues in this case and who may have received money (other than normal subscription fees) from the party or its counsel during the pendency of this action."

If you've read any comments on the FTC Endorsement Guides, these issues should sound familiar. (If not, I've helpfully put a link to a prior post in the footer.) But this goes far beyond bloggers, and it's not under the jurisdiction of the FTC. And it's likely to be much more important.

Lending and LendInk: six lessons on copyright from one big mess

LendInk: copyright infringer? Witchhunt victim? Both? Neither? More rhetorical questions?

What happened last week to LendInk, where hundreds of authors sent takedown notices to a site that matched people willing to lend e-books to people wanting to borrow them, seems to be an unfortunate artifact of two things:

1. Lots of creators don't know what the law actually permits and prohibits.
2. When they want to find out, they don't really know where to turn.

I can't do much about the first point. But I'll try to help with the second.

Three elements in a standard audit clause, and one non-standard one you should request

Unless you're taking cash from purchasers of your books or CDs at a county fair or equivalent, there is always someone standing between you and your money. Even if it's just VISA or Paypal for sales through your website. But much more often there's one, and sometimes as many as three, groups between money and you:

1. The retailer.
2. Your publisher, distributor, etc.
3. Your agent.

Naturally the retailer is in the chain of payment. In a traditionally-published product your publisher couldn't not be in the middle: they've got the relationship with the retailers. And your agent will want to be in the middle if they have any sense - that way they can make sure they get their cut.

What you need to know about reversion of rights clauses

For many creators, one of the most exciting days of their lives is the day they find out they will be published. Another is the day they receive their first payment. And sometimes there's a third exciting day too: the day they get their rights back from their publisher.

Especially now that independent distribution of books and apps through things like the Kindle Marketplace and the Apple App Store isn't just possible but is also lucrative for many creators, getting your products back can increase your backlist and income.

It's not super-important to worry about reversion clauses in a non-exclusive deal. After all, if you can sell your creations in multiple channels then it's hardly a problem to be in as many as possible. But where anyone locks you into an exclusive deal then you may want to make sure you can get your rights back if they aren't actively trying to make you money with them.

And although every publisher has different reversion clauses, there are a few standard elements that you need to consider.

New format for LegalMinimum

Based on some feedback I've gotten, I'm trying to find a more workable format for the blog. Starting here. Thoughts etc. requested in the comments, or by email, or Twitter (@LegalMinimum). Or you could dispatch a raven, I guess.

I'll also take suggestions on content, by the way...