Someone actually decided to test the underused 'misrepresentations' section of the DMCA — the part that is supposed to limit the chilling effects of the DMCA. So far it has failed miserably to accomplish this goal, but in theory companies are liable for damages if they send cease & desist notices for things that they should know aren't actually infringements of their copyright. So in this case a district judge sensibly ruled that companies must consider fair use before sending cease & desist letters. HOWEVER, it's not clear whether this judge or any other will actually hold the companies accountable. The company will likely just get off by saying "oops."

The part of Wired's article that I found most galling though was this:
"Universal argued that copyright owners may lose the ability to respond rapidly to potential infringements if they are required to evaluate fair use prior to issuing takedown notices." Apparently Universal believes that intimidating large numbers of innocent people is better than actually considering whether or not the cease & desist notices they send are actually legitimate.

If you are going to make a documentary, you have to realize that you can't just go out there and shoot everything and anyone you see. Yes, the instant you push that record button, you'd be opening Pandora’s Box especially if you plan to broadcast your work.

You see, you actually you CAN shoot anything you want, but if you are careless, what you have shot may not necessarily be something you CAN BROADCAST. Let me introduce you to the documentary filmmaker's three most hated words COPYRIGHT, DEFAMATION and PRIVACY. 

If you shoot a building's facade, a sign, a product showing its logo, or a fast-food chain for example, do you think you need to ask for permission to use that for your documentary? What if you did ask and they said "no"? Would you still go on with your production, or do you call it a day? Can you take videos of children without asking permission from their parents? Can you go out and just take videos of people walking in a busy street or do you have to ask their permission one by one? What if only 90 people out of 100 consented? Do you need to blur out the faces of people who did not?

What if you shot a couple walking in a park but that person is with someone he's not supposed to be with? What if they didn't know you were taking their video and be surprised to see themselves on TV one day, what do you think they'll do?  How can you make a documentary about the bad effects of cigarettes for example if you have to ask tobacco companies for permission to portray their products in a bad light? Wouldn't they suit you for using their product logo without their permission or slap you with a libel suit if you did?

As a rule, if you want to be safe from problems that may arise from COPYRIGHT, do not use outside archive material, only home movies, personal photos, documents for which you own all rights in perpetuity, and fair use material for which you can make a clearly and obviously defensible case for fair use. Do not use outside music, only music internally produced, for which you own rights in perpetuity. In the case of PRIVACY and DEFAMATION on the other hand, make sure you bring with you "release" forms, and have people sign if they agree to appear on your video or lend you copyrighted materials to use for your documentary. Of course if you do this, you'd be greatly limiting yourself as well as your work.

This wouldn't pose any problem if you are doing a travel or ethnographic type of documentary where archival footage isn't really that important, but what if you do need archival footage? What if you needed to use historical photos as well as period music to effectively tell certain stories about culture or history for example? You obviously could not go back in time to shoot can you? What then? Well, you can either buy the rights for using the footage or just make sure whatever audio-visual materials you will be using are in public domain or are not covered anymore by copyright. Also make sure that you keep a list of your sources and cite them properly.

[googlevideo=http://video.google.com/googleplayer.swf?docId=2335800485104529291]

Anyway, don't take my word for it. Consult a lawyer or consult your academic or thesis adviser for guidance before doing your work. The things I wrote here are mere guides, just enough information to keep you from being careless and shoot indiscriminately or from becoming too careful and end up censoring yourself.

[googlevideo=http://video.google.com/googleplayer.swf?docId=5611156778932039638]

You can download the handbook ''Filmmakers' Statement of Best Practices in Fair-use" here. and sample release forms here, here and here.

An der schlechten Stimmung in den Foren ist T-Mobile aber nicht ganz unschuldig: Denn statt einer großzügigen "FairUse-Regel" schreiben die Bonner Mobilfunker kleinkariert bemessene Datengrenzen ins Kleingedruckte der iPhone-Verträge. Werden diese überschritten, verpasst T-Mobile dem iPhone eine Datenbremse:

W-LAN / EDGE-Nutzung in allen Tarifen inklusive. Gilt nur für die Nutzung mit dem iPhone im nationalen T-Mobile Netz und an deutschen HotSpots der Telekom oder von T-Mobile (WLAN). Ab einem Datenvolumen von 200 MB (Complete M), 1 GB (Complete L) oder 5 GB (Complete XL) pro Monat wird die Bandbreite im jeweiligen Monat auf max. 64 kbit/s (Download) und 16 kbit/s (Upload) beschränkt.

Immerhin scheint das Datenvolumen, das über die WLAN-Hotspots von T-Mobile läuft, dabei nicht mitzuzählen.

T-Mobile-Tarife für das iPhone

Ecuadorian TV station RTU (Ch. 48 for you Quitenos, Ch. 28 en Latacunga) has a YouTube strategy different from Viacom's. RT shares about 3-4 of its stories each week day. RTU's been a handy resource for following the recent tumult in Quito.

David Sohn of the Center for Democracy and Technology has summary of a panel,“User-Generated Content — Can Copyright Tolerate Mixing & Mashing?”, at last week's State of the Net Conference. He noted that the panelists were generally in agreement on a few points:

The current rights regimes for commercial content are too complex, with too many rights holders, for it to be feasible for would-be mashers and samplers to license all commercial content they use [and] the current copyright statute is too complex for a world where digital technologies have empowered widespread public participation in activities (creating, sharing, manipulating, and distributing creative content) governed by copyright.

Of course, David notes that that consensus may have been due to the fact that the panel included "Nobody directly representing the interests of the commercial content community — the folks whose content gets “mixed and mashed.”

Finally, CNET has the story of Ronald Silver, who claims to have invented that staple (is it still?) of the wedding dance floor, the Electric Slide, and is using the DMCA to file take-down notices against nasty pirates who dare to share their home videos. Apparently, the notices haven't reached aqua-dancers.

Most artists are brought to their vocation when their own nascent gifts are awakened by the work of a master. That is to say, most artists are converted to art by art itself. Finding one's voice isn't just an emptying and purifying oneself of the words of others but an adopting and embracing of filiations, communities, and discourses...

Today, when we can eat Tex-Mex with chopsticks while listening to reggae and watching a YouTube rebroadcast of the Berlin Wall's fall—i.e., when damn near everything presents itself as familiar—it's not a surprise that some of today's most ambitious art is going about trying to make the familiar strange. In so doing, in reimagining what human life might truly be like over there across the chasms of illusion, mediation, demographics, marketing, imago, and appearance, artists are paradoxically trying to restore what's taken for “real” to three whole dimensions, to reconstruct a univocally round world out of disparate streams of flat sights.

Whatever charge of tastelessness or trademark violation may be attached to the artistic appropriation of the media environment in which we swim, the alternative—to flinch, or tiptoe away into some ivory tower of irrelevance—is far worse. We're surrounded by signs; our imperative is to ignore none of them.

Lethem's essay reminds me Sunday's performance of Stravinsky's Rite of Spring by the Chicago Symphony Orchestra and Esa-Pekka Salonen. [Thanks, Angel, for the invite.] The CSO's "Beyond the Score" lecture before the performance made the case that Stravinsky was influenced by Lithuanian and Russian folk music and aided by archaeologist, folklorist, and mystic Nikolai Roerich. To wit, Edward Green quotes from Eric Walter White's Stravinsky: The Composer and his Works:

the opening [bassoon] melody...he borrowed from a collection of Lithuanian folk music.

Wikipedia adds:

Though the melodies draw from folklike themes designed to evoke the feeling of songs passed down from ancient time, the only tune Stravinsky acknowledged to be directly drawn from previously-existing folk melody is the opening, first heard played by the solo bassoon. Several other themes, however, have been shown to have a striking similarity to folk tunes appearing in the Juskiewicz anthology of Lithuanian folk songs.

Finally, Wayne Marshall has been thinking about the place of creativity, fair use and the crackdown on the Mix Tape:

I think we should be as bold about our use of audio, video, transcriptions and the like as we are vigilant about the power/privilege relationships involved in such use. I wouldn’t wish a lawsuit on anyone, but the truth is that we may need to take more risks — and make eloquent arguments — in order to push the law/discourse toward a state that better suits our practices as writers, teachers, artists, etc.

[Update: Jeff Chang, too:

the situation actually reflects a larger change in the distribution of rap music. It all starts with the inability of major labels to meet the demands of the rap market.

Mixtapes have surged in popularity over the past 5 years because they meet the demand for rap that the major labels can no longer fulfill....Mixtapes won't die. But 2007 may be the year that the mixtape begins to really be absorbed into the machine, which may be a kind of a slower death.]

dig it:

Summary
The link being discussed outlines the operating principles of Nintendo relating to the issues of ROMs, emulation, and related themes. The document consistently answers the arguments presented in favor of Nintendo. It starts by defining Copyrights, Trademarks, Patents, Counterfeits, and Licenses for the sake of the discussion, and then steps through simple questions like "What are Nintendo ROMs?" and proceeds in complexity to "Isn't it okay to download Nintendo ROMs for games that are no longer distributed in the stores or commercially exploited? Aren't they considered 'Public Domain'?" (which is answered with an emphatic negative) and finishes up with questions in the vein of "How do I report potential infringements to Nintendo's products?".

Analysis
This article is so absolutist that it can't possibly be entirely accurate from a legal perspective. As has been emphasized by IP legal advocate Tyanna Herrington, context is everything, and making strong statements can actually demonstrate weakness, or at least inflexibility. The ideology presented here is definitely objective and current-traditional – or to put it in their words, "It's that simple and not open to debate." The answers do not entertain any possibility of legitimacy on copying, emulating, and piracy. Several of these statements are so broad and over-reaching that it would be difficult to find actual legal backing for the statement.

Also of interest is the ordering of information in the document. First, there is the Education phase, where everything is neatly defined, and the field of discussion and terms are created. Then there is the Deflection phase, where all of the common arguments for emulation are neatly laid out, and as neatly, shot down. Finally, there is the Inculcation phase, where the expected action is reinforced by answering questions that create the desired action. There is a kind of programming implicit in this or any FAQ so that the reader's thoughts are led along a pre-determined path. This particular document actually tells readers "what" is wrong, "why" it is wrong, and "how" to respond, while maintaining the veneer of being informative.

With the advent of the Wii's Virtual Console, Nintendo's stance on emulation is strained: We can do it, because we own the copyright, but you can't do it, not even if you own the game. "The introduction of emulators created to play illegally copied Nintendo software represents the greatest threat to date to the intellectual property rights of video game developers." The keyword in this quote must be "illegally copied," because the Wii does all of this, with the exception being that it emulates "legally copied" Nintendo software.

This document is rather adversarial in tone and gives the impression that Nintendo perceives it customers, or at least a certain subset of its customers, as thieves and pirates. In actuality, the Nintendo fan community is one of the most committed fanbases in videogaming history. The article makes extensive legal claims, but refuses to engage the issue at hand from any other perspective, and after reading this, I was overwhelmed with the sense of being constrained, and more than a little bit apprehensive, which appears to be the desired effect.

Examining Nintendo's perspective, as a company that relies on their original franchises to gain and maintain adoption of their platforms and games, it's only natural that they would want to take any steps necessary to secure their IP. However, their inflexible attitude is not received well by customers.

Historically, game companies have called emulation illegal and unethical until it becomes useful to them. Turner's GameTap uses emulators, with the copyright owners' blessing, to play classic games and has hired emulator programmers to ensure the best possible gaming experience through their video game syndication service. Sony and Nintendo have relied on emulators to play their older games on newer systems. There are even some indicators that Nintendo used a freeware Gnu Public License (GPL) emulator to play Nintendo games on the Gameboy Advance. The Wii's Virtual Console itself is the umbrella term for not one, but five emulators (Nintendo , Super Nintendo, Nintendo 64, Sega Genesis, and NEC's Turbografx-16). There is a double standard on emulation in the industry, and it's time that people recognized it as such.

Nintendo has the unenviable position of attempting to enforce their policy upon its customer base, the ramifications of which are already seen in key choices in the Wii's architecture, such as locking the systems by region, locking Virtual Console downloads to the console that downloaded them, and strictly limiting savegame transfers. If there is to be a crackdown on emulation, it would generate enough ill will toward Nintendo to cause them to lose a significant market share, and Nintendo's market strategy relies as much upon consumers' goodwill as it does upon creating unique properties and extending current properties that there would be a mass exodus from Nintendo if the customers were treated in the same way that this article portrays them, and Nintendo knows this.

Legal absolutism is not going to find a solution here. Some excellent recommendations are mentioned in Use of a Game Over, a whitepaper on emulation (and the subject of a future article on this website!).

"Geographic lines that have held certain parts of the TV business together are being eradicated and it's a big concern," says Brad Adgate, senior vice president at Horizon Media, a New York consulting firm....

If viewers don't need a local station to watch "Friends" reruns, the show might not fetch as much in syndication. "Nobody is going to pay a very high price for a show that is all over cyberspace," says Don Lundy, general manager of McGraw-Hill Cos.' WRTV station in Indianapolis, an ABC affiliate....

"The whole business model in the broadcast industry is based on geographic exclusivity. ... The potential use of the Slingbox fractures that," says Jerald Fritz, senior vice president for legal and strategic affairs at Allbritton Communications Co....

These new technologies are fueling efforts this year by the entertainment industry to persuade Congress to pass legislation that gives studios and networks new legal tools to fight piracy...Meanwhile, lawmakers are also considering tackling the problem of consumers who want to put online older, analog media, such as programs recorded from VHS tapes. House Judiciary Committee Chairman James Sensenbrenner, a Republican from Wisconsin, and ranking Democrat John Conyers of Michigan, last year introduced a bill that would impose criminal penalties of up to $1 million and 10 years in prison for anyone illegally copying analog material and putting it online.