Note: this is not legal advice. This is my opinion, nothing more. If you want legal advice, hire a lawyer.

How to piss people off with a legal argument

There are no atheists in a foxhole, it’s been said, and there are apparently no agnostics when it comes to the potential application of the GNU General Public License (GPL) to WordPress themes. My last post, which analyzes the matter from the perspective of copyright law (as it must) generated quite a bit of debate even though it’s been raging for far longer than I’ve been following it. I concluded that, under our current copyright laws, WordPress themes are not “derivative works” and therefore are NOT automatically covered by the GPL (unless, of course, the theme author deliberately chooses to release under the GPL).

And that pissed some people off, and pleased a few others. One even accused me of wanting the powers-that-be to “bless” my decision to go with a premium WordPress theme. (Um, no.) Others encouraged the sides to settle the matter in court. Some simply waved their hands and said, “There is no debate,” as if they weren’t debating by leaving their comment.

Whatever.

Your opinions don’t matter

None of your opinions matter… and neither does mine. Derivative work, independent creation, something in between… it doesn’t matter in the end. Why not?

Because whether the GPL applies to WordPress themes or not… whether they are derivative works or not… whether they are part of a “combined program” (as the Software Freedom Law Center advocates) or not, the WordPress GPL can’t stop you from developing, distributing, making money from, and asserting copyright in, WordPress themes.

Because the Fair Use Doctrine protects you when you do.

How can Fair Use apply to premium WordPress themes?

First, it’s important to remember that the GPL is a copyright license: it allows people other than the author the right to copy, distribute, and modify a work – in this case, a piece of software – that otherwise would be restricted to the author only under copyright law.

That means that anyone who already has the right to do those things under copyright law need not worry about the restrictions of the license. The terms of the license only apply to uses which copyright law reserves to the author. And if a use qualifies as “fair use“, then copyright law expressly allows it without a license.

How does use of a work qualify as “fair use”? The law sets out four factors to consider:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

17 U.S.C. § 107.

Each factor weighs separately in the analysis.

Purpose of the use

As to the first factor, copying for a commercial purpose “weighs against a finding of fair use.” Sega Enterprises Ltd. v. Accolade, Inc., 977 F. 2d 1510, 1523 – (9th Cir. 1992), citing Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 562, 105 S.Ct. 2218, 2231, 85 L.Ed.2d 588 (1985). However, “the presumption of unfairness that arises in such cases can be rebutted by the characteristics of a particular commercial use.” Sega, at 1523. Such factors include whether or not the use complies with the “primary objective of copyright law [which] is not to reward the labor of authors but ‘[t]o promote the Progress of Science and useful Arts.’” Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 348, 111 S.Ct. 1282, 1290, 113 L.Ed.2d 358 (1991).

In other words, commercial use is presumed to be unfair, but that presumption may vanish if the use also promotes advancement of science and art. Publication of premium WordPress themes, by definition, is commercial, but in many cases, arguably promotes that advancement of science and art when they help produce web pages that are more artistic or which function, in some way, better. Almost all WordPress themes are created with this intent, and would be difficult to sell as premium themes if they miss the mark.

Tha analysis finds support in the Sega case:

We further note that we are free to consider the public benefit resulting from a particular use notwithstanding the fact that the alleged infringer may gain commercially. Public benefit need not be direct or tangible, but may arise because the challenged use serves a public interest…. In the case before us, Accolade’s identification of the functional requirements for Genesis compatibility has led to an increase in the number of independently designed video game programs offered for use with the Genesis console. It is precisely this growth in creative expression, based on the dissemination of other creative works and the unprotected ideas contained in those works, that the Copyright Act was intended to promote.

Sega at 1523. (citations omitted) Like in the Sega case, WordPress themes promote a “growth in creative expression” by making WordPress easier to use or more aesthetically pleasing. I think a court would find this factor in favor of fair use in the case of WordPress themes. But just for sake of argument, let’s tip the balance on factor one slightly against fair use for now.

Nature of the work

For the second factor, the “nature of the copyrighted work,” we look again to the Sega case, which states:

The second statutory factor, the nature of the copyrighted work, reflects the fact that not all copyrighted works are entitled to the same level of protection. The protection established by the Copyright Act for original works of authorship does not extend to the ideas underlying a work or to the functional or factual aspects of the work.

Sega at 1524. (citations omitted) And, “To the extent that a work is functional or factual, it may be copied.” Because computer programs are largely functional, “many aspects” of computer programs are not even protected by copyright. Sega at 1525.

To be fair, the “nature of the work” analysis can be much more complicated than I can discuss here, but generally speaking, more protection will be provided towards fictional, fantasy, and entertainment works, with less protection being given towards largely functional works, and none at all to some types of works that are purely functional. As a computer program, WordPress is highly functional in nature, and therefore enjoys less protection than pure works of imagination. Based on that sliding scale, it is fair to tilt the second factor in favor of fair use where the nature of the work is a content-management system for web pages, such as WordPress.

Amount and substance of the copying

The third factor is the “amount and substantiality of the portion used in relation to the copyrighted work.” In other words, how much of the protected work was used, and how important to the work was that portion? Both the quantity and the quality of the copies portion matter. Salinger v. Random House, Inc., 811 F. 2d 90 (2d Cir. 1987)(where copy was “essentially the heart” of a copyrighted work, factor three weighed against fair use).

In the case of WordPress themes, this factor weighs heavily in favor of a finding of fair use. No theme that I’ve ever seen incorporates any actual code from WordPress; instead, they rely on function calls to the main program, asking it to send data back to the program that comprises the theme. In other words, the only portion of WordPress “copied” are the names of the functions themselves. As a percentage of the total amount of code in WordPress itself, this is simply a tiny amount. Furthermore, the names of the functions are, in themselves, hardly the core part of the expression from a qualitative nature. Both from a quantity perspective and a quality perspective, there is almost no significant copying of any protected WordPress code. Factor three, then, weighs in favor of fair use.

Effect on the potential market

The fourth factor, though, is the real clincher that leads me to believe the distribution of premium WordPress themes is fair use of any protected WordPress works. The “market effect” test has been deemed by our Supreme Court to be “undoubtedly the single most important element of fair use.” Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 556-57, 105 S.Ct. 2218, 2233-34 (1985). The “market effect” test determines whether the alleged copyright infringement would somehow depress or diminish the ability of the author of the protected work to market that protected work.

In this case, the answer is a head-slapping “Of course not!” It is axiomatic that a WordPress theme cannot function unless there is a copy of WordPress running to support it; in fact, this is one of the arguments that GPL proponents make to support their case that the themes are derivative works. The “copying” by theme distributors can never displace a single copy of WordPress, so there is no negative effect on any potential market; and in fact, by enhancing the aesthetic and functional value of WordPress, themes promote more widespread use of the underlying software. Developers of WordPress themes increase the market for WordPress, not depress it. Increasing WordPress market share is in the theme developers’ best interest, for more WordPress users means more potential customers for premium themes.

Because the impact of premium themes on WordPress market share is at worst neutral, and in all likelihood premium themes substantially bolster the market share of WordPress with respect to its competitors, the fourth factor weighs heavily in favor of a finding of fair use. As the “most important element” of fair use, this finding cannot be understated.

What it all means: Blow it out your GPL

Of the four factors of fair use, two weigh heavily for fair use, one slightly in favor, and the other we allowed to tilt slightly against even though it could easily go in favor of fair use. To be sure, changing the underlying facts could change the outcome of any individual factor, but based on the facts as I understand them, development and distribution of WordPress themes, to the extent they engage in any “copying” or derivation from WordPress code, are resoundingly fair use of that code. And if they are fair use, then federal copyright law expressly allows them to be made, copied, and distributed with no regard whatsoever to the GPL or any other license that may apply.

So all the hemming and hawing about whether themes area derivative work, or “should be” a derivative work, is completely irrelevant. Because the GPL need not apply in either case.

Note:

This is not legal advice. This is my opinion, nothing more. If you want legal advice, hire a lawyer.

Why aren’t WordPress themes automatically covered by the GPL?

There’s been a firestorm brewing in the relatively small world of WordPress premium theme designers, after WordPress founder Matt Mullenweg broadly asserted that themes built to run on the WordPress platform – and by implication, plugins and anything else that hooks into the WordPress system – are covered by the GPL.

This is important, because if Matt is correct, then anyone who gets a copy of a premium theme then has the right to freely distribute it or modify it virtually without restriction (expect, of course, those restrictions found in the GPL itself). Understandably, even though some voluntarily release their themes under the GPL, many premium theme designers object to having their code distributed for free.

Matt, who is an outspoken proponent of open-source software, has explained that designers can still make money off GPL code by providing support and other valuable resources to users of that code. And he’s right – that model exists, and has been shown to work for some.

Are premium theme designers “evil”?

But he also goes so far as to call non-GPL premium WordPress themes “evil” – naming Chris Pearson’s Thesis as one such example. Now, I own a Thesis developer’s license and run several sites on the theme. I was happy to pay for it and would do so again. I also know Matt and have considered him a friend for several years now. I commend him for his support of open software and for the impact he’s had on the weblog community.

So it’s tough to say this: Matt, you’re wrong. Not only are these developers not “evil,” they provide a definite benefit to the community. And perhaps more important, the WordPress GPL does not, in most cases, require them to release their own themes or plugins under the GPL.

The argument for an expansive GPL

Here’s the argument for applying the GPL to all WordPress themes:

The template is loaded via the include() function. Its contents are combined with the WordPress code in memory to be processed by PHP along with (and completely indistinguishable from) the rest of WordPress. The PHP code consists largely of calls to WordPress functions and sparse, minimal logic to control which WordPress functions are accessed and how many times they will be called. They are derivative of WordPress because every part of them is determined by the content of the WordPress functions they call. As works of authorship, they are designed only to be combined with WordPress into a larger work.

In other words, the code created by theme developers, because it works together with WordPress code (and in most cases, cannot function without it) is a “derivative work” of WordPress under copyright law and therefore falls within the scope of the GPL. (The GPL, as a copyright-based license, applies only to the original work and those works that derive from it.) At least, that’s the argument.

The counter-argument to an expansive GPL

But is it enough to say that a theme calls to WordPress functions or that it is somehow “combined with WordPress code in memory”? Does that make it a derivative, and therefore covered, work under the law and the GPL?

There are plenty of reasons to disagree with the expansive GPL view expressed above. First and foremost, it’s just not enough to say that themes running on top of, and using function calls from, a piece of software are “derivative” of that software. If that were the case, then any software application would be a derivative work of the operating system it runs on – such as Windows, Linux, or OS X – which in turn would be a derivative work of the software hard-coded into the chips running the computer. For that is the way all software works, down to the bare iron – it sits on top of, and makes function calls to, the software layer beneath it, until to get down to the silicon pathways in the chip itself. No software could run without those lower layers, and nothing is truly independent of them. But “dependent” and “derivative” are not the same thing.

Instead, copyright law takes a very pragmatic approach to determine what constitutes a derivative work.

The alleged derivative must “physically incorporate a portion of a copyrighted work… [or] supplant demand for a component of that work.”

In the case of Lewis Galoob Toys, Inc. v. Nintendo of America, Inc., 964 F. 2d 965 (9th Cir. 1992), a federal appellate court considered that very issue. Galoob manufactured a “cheater” cartridge that plugged into Nintendo games, between the game cartridge and the game unit itself, and allowed the player to change the game’s parameters – for example, players could give themselves unlimited lives using Galoob’s device. Nintendo sued Galoob, claiming that the devices violated Nintendo’s copyright in the games as a derivative work of the games.

The Galoob court rejected Nintendo’s argument. In order to be considered a derivative work, the alleged derivative must “physically incorporate a portion of a copyrighted work… [or] supplant demand for a component of that work.” Galoob at 969. Finding that Galoob’s device did neither, the court determined that there was no derivative work.

An important part of the court’s analysis was that “technology often advances by improvement rather than replacement.” Id. The court also noted that software often depends on other software to function:

Some time ago, for example, computer companies began marketing spell-checkers that operate within existing word processors by signalling the writer when a word is misspelled. These applications, as well as countless others, could not be produced and marketed if courts were to conclude that the word processor and spell-checker combination is a derivative work based on the word processor alone.

Id. Applying that theory to the Galoob device, the court concluded:

The Game Genie is useless by itself, it can only enhance, and cannot duplicate or recaste, [sic] a Nintendo game’s output. It does not contain or produce a Nintendo game’s output in some concrete or permanent form, nor does it supplant demand for Nintendo game cartridges. Such innovations rarely will constitute infringing derivative works under the Copyright Act.

Using that rationale, the question of whether WordPress themes are “derivative” of WordPress itself becomes more clear.

1. Does a theme, rather than simply calling a WP function, incorporate actual code from WordPress?
2. Does it somehow supplant the demand for the WordPress software itself?

If the answer to either of those questions is “yes,” then the work is probably derivative, and the GPL probably applies. If not, then even a theme or plugin that entirely dependens on WordPress to run at all, or simply improves WordPress in some way, would not be a derivative work and the GPL would not apply. For the vast majority of themes I’ve seen, the GPL would not apply because the theme is not, in my opinion, a derivative work. (In fact, if any one thing “incorporates” another, it’s most likely WordPress incorporating the theme, by use of the PHP include() call, rather than the other way around.)

Should the GPL apply to premium WordPress themes?

Matt’s own experience with WordPress is a very convincing argument that it is possible to change the world, or even just make a living, by writing, distributing, and supporting GPL-based software. There are many premium theme designers – promoted and catalogued by WordPress – who choose to apply to GPL to their own labors. But those who choose not to? Not evil – at least not for that reason.

It’s great to talk about open source software as “free” and speak of the GPL – as Matt does – as a “Bill of Rights” – but what Matt seeks to do would reduce freedom by expanding copyright restrictions to non-derivative – and therefore legally independent – works . At its core, the GPL is simply a fancy way of controlling other people’s work through the imposition of copyright restrictions. Those who seek to extend the GPL beyond the bounds allowed by copyright law, do not promote freedom but instead take freedom away.

Update: What WordPress itself says about derivative works and copyright law

I should have done this in the main article, but here’s what the GPL that came with your copy of WordPress says about the issue:

a “work based on the Program” means either the Program or any derivative work under copyright law: that is to say, a work containing the Program or a portion of it, either verbatim or with modifications and/or translated into another language.

(Emphasis added.) In other words:

1. Copyright law controls the definition of what constitutes a “derivative work” (and therefore, a covered work); and,
2. The GPL expressly invokes the standard embraced by the Galoob court, namely, that some part of the original work must be contained in another work in order for that work to be considered derivative.

I knew that WordPress itself was covered by the GPL. What I didn’t know was that themes, even commercial themes, built to run on WordPress, also fall under the GPL, according to some GPL experts.

In this vid, Matt Mullenweg talks about the benefits of the GPL at some length, even going so far as to call those commercial theme vendors who don’t release their code under the GPL as “evil.” (Looking for some commercial-grade but GPL-released themes? Find some here.)

Now, I’ve been using a commerical, non-GPL theme for this and some of the other blogs I maintain – the very slick Thesis theme – but I hardly consider it “evil” that Pearson, et al. maintain a non-GPL license regime. They might arguably be in violation of the WordPress GPL, but there’s nothing inherently “evil” about their product or what they’ve chosen to do with it. (Notably, Pearson offers a number of free themes for download at his site, including a couple which helped cement his reputation as a talented WP theme designer.)

No takebacks

Last month, the official White House photo stream on Flickr switched from a Creative Commons attribution license to a brand-new “U.S. Government Work license” that Flickr created specially for this photostream, but which probably applies to almost all photos contributed by the federal government.

Why create a brand-new “license”? Because works of the U.S. Government are not subject to copyright. The new “license,” in reality, is simply an acknowledgement that the work is part of the public domain.

You cannot keep what you do not have.

But there’s a small problem. In the description for each photo, the following text appears:

This official White House photograph is being made available for publication by news organizations and/or for personal use printing by the subject(s) of the photograph. The photograph may not be manipulated in any way or used in materials, advertisements, products, or promotions that in any way suggest approval or endorsement of the President, the First Family, or the White House.

That’s all well and good, except that no one has the right to impose those restrictions. The work is in the public domain. No one may restrict its use in any way. What happens is you use photographs from the official photostream in a way that violates the supposed “terms” imposed in the comments?

Not a darn thing.

Of course, if you use them to commit fraud or some other crime, there may be consequences for that. But otherwise, you’re free to use these photos in any way just as if you took them yourself. So find yourself a picture like the one I’ve got here… and enjoy.

UPDATE

Welcome to the party, Slashdot and Instapundit.

Write for a blog long enough, it’s bound to happen. You see a link in your referrer logs, find something on Google, get an email from a reader… you follow the link, and there it is: your hard work, spread across someone else’s page, used as bait for ad revenue or something worse.

David Risley asks the question: How do you deal with web sites that steal your content?

Personally, I’ve dealt with it in two ways. First, I contact the offender directly and ask them to take the post down. This usually works, because anyone who’s copied my work knows what I do for a living. If I can’t contact the webmaster, I next contact the web host.

So far, problem solved, every time.

I wrote almost exactly a year ago about the lawsuit against Turnitin.com filed by several Virginia high school students, alleging that the anti-plagiarism service violated the students’ intellectual property rights. Then, I said, “Does Turnitin have a valid defense? There are two likely possibilities: fair use, and license.” My predictions (unlike, say, my stock picks) have turned out to be eerily prescient.

Andy Carvin reports today that the students have lost their suit, when U.S. District Court Judge Claude Hilton (Eastern District of Virginia) granted summary judgment to the defendants [PDF document] on the copyright claims of the students.

Technically, I was wrong about the license issue: to be precise, the court found that the “users” (i.e., the students) had agreed to a “click-wrap” contract which waived all liability of any kind by the defendants. (Note that the school required the students to do so.) So, not an express license to use the work, but a prohibitive contractual provision nonetheless. The court relied on one argument, though, which I think could be subject to attack on appeal: in order to enforce the contract, the court had to find that the students got some “benefit” out of the contract — in this case, the fact that they would otherwise have gotten a failing grade from the school. I’m not sure that the school’s requirement that the students sign up for the “service” is the same as receiving a “benefit” of the service. This court also seemed unconcerned that this school – a public school – required the students to sign up for the “service,” except to say that the students’ redress would be against the school, not Turnitin.com.

I did say that fair use would be a problem for the students to overcome, and i was spot-on about that. The judge took a pretty thorough look at the fair use analysis (using the four factors I mentioned last time) and found that the copying in this case was fair use. Predictably, the court focused – as most do – on the fourth factor, impact on the marketability of the work. Finding that Turnitin.com’s use of the works had effectively no impact on the prospective market for the students’ papers (aided in part by the students’ own concessions that there was no real market for them) was tantamount to finding for the defendants on the question of fair use.

So, while it’s a disappointing result, the court’s decision would probably be difficult to overturn on appeal. Maybe it’s time to take up the court’s suggestion that the students seek redress against the school district for compelling them to surrender their intellectual property rights in their work. I’m just glad I’m not the lawyer who would have to argue that case.

The Oregon Attorney General’s Office has asked a federal court to require the RIAA to tell the state who is downloading information from computers belonging to students at the University of Oregon. In proceedings to determine whether the University must reveal the names of its students in response to the ex parte subpoena issued by the RIAA’s lawyers, the AG’s office has filed a brief opposing the release of the students’ information and alerting the court that the RIAA’s motion raises serious questions of criminal activity by the record companies’ investigators.

Plaintiffs’ third-party investigator, MediaSentry, is investigating in Oregon without a license as required by ORS 703.405. Affidavit of von Ter Stegge, 1/10. By investigating Oregonians without proper licensing, MediaSentry may be in violation of ORS 703.993(2), a misdemeanor crime.

Also, the AG’s Office expressed deep concern that the record company’s investigators were prying into students’ private data without the permission of those students.

Plaintiffs’ investigation practices probably provide the capability to “mine” private, confidential information unrelated to copyright
infringement…. [F]ile-sharing programs… sometimes upload personal and confidential information of the user and make that information available for sharing unbeknownst to the user. It only follows that Plaintiffs’ investigator, MediaSentry, has access to such information when it is stored in a file-sharing program that it is “mining.” … Plaintiffs may be spying on students who use the University’s computer system and may be accessing much more than IP addresses.

What kind of information that the AG’s Office is concerned about? Oh, nothing special, just “email, credit card information, user name, passwords, internet purchase information, internet search history, and file sharing.”

Would you trust unlicensed investigators with your email, credit cards, or passwords? Neither would I.

The brief, which you really ought to read if you care about privacy and due process, also raises concerns that the RIAA’s lawyers are submitting misleading affidavits to the court, along with other unsavory tactics.

(Via Recording Industry vs The People.)

Of the twenty-thousand or so (I’ve heard higher) people who have been sued by the RIAA in the past four years for file-sharing, not one has ever gone to trial before this week. But this week in Duluth, Minnestoa, Capitol Records, et al v. Jammie Thomas is just about to go to the jury. Several sites have excellent coverage, and Ray Beckerman’s Recording Industry vs. the People blog has links to just about all of it.

One very interesting nugget of information has come out of the trial, when attorneys for the defense got to cross-examine Jennifer Pariser, Sony BMG’s head of litigation. Ars Technica reports:

Pariser estimated the number at a “few thousand.” “More like 20,000,” suggested Toder. “That’s probably an overstatement,” Pariser replied. She then made perhaps the most startling comment of the day. Saying that the record labels have spent “millions” on the lawsuits, she then said that “we’ve lost money on this program.”

There are a several glimmers of hope that have come out of this litigation – including the possibility that the defendant just might win this one – but the fact that the record companies are losing money on this deal means that eventually, their shareholders will get fed up with the litigation and demand an end to it.

Shareholders? Time to act.

I’ve got three:

• Rage Against the Machine: RIAA Litigation Update

  The recording industry has ramped up its litigation campaign against peer-to-peer file sharing suspects, with cases now numbering in the high thousands. This session explores recent developments in the various cases nationwide and how someone caught in this driftnet litigation might defend themselves.

• Among Thieves: Preventing Online Copyright Infringement

  Digital photographers, web designers, and graphic artists are extremely vulnerable to online theft of their work. This session will explore copyright and trademark law protections for the freelancer and small-shop digital professional.

• Targeting Your Web Site: Accessibility Litigation Update

  How recent court decisions expose web site owners to liability for lack of accessibility, and how to protect yourself.

If you’re interested in any of these (or any other SxSW panels), check out the panel picker and vote.

In the great file-sharing war, it looks like the tide may be turning. Deborah Foster, the defendant in a peer-to-peer file-sharing case out of Oklahoma, not only got the records companies to dismiss their case against her, she got a court award of $68,000 for attorney’s fees – the cost of defending her lawsuit.

The Court emphatically stated that copyright defendants like Foster are entitled to have the cost of their defense paid for by the record companies, even when they refuse to throw their family members under the bus:

The plaintiffs argue that the defendant is not entitled to fees incurred after some point when she allegedly “could have avoided [fees] altogether but chose not to do so.” Throughout the course of this litigation the plaintiffs have alleged that had the defendant appropriately assisted their copyright infringement investigation and litigation, she could have avoided being sued. The Court has rejected this argument on numerous occasions and declines to entertain it yet again. The defendant was entitled to litigate the claims the plaintiffs chose to bring against her and, as the prevailing party on those claims, she is entitled to recover the reasonable attorney’s fees she incurred in so doing.

This decision will no doubt encourage more attorneys to accept defense cases even when the defendants themselves may not be able to pay the fees up front. Where the record companies have been using settlements to fund their ongoing litigation campaign – using defendants’ money against other defendants – now defendants have the prospect of using the huge financial resources of the record companies to level the playing field and fund the resistance to the copyright abuse.

Link via Recording Industry vs. The People.

UPDATE: Consumerist chimes in.

• Those looking for assistance in the central Florida area may want to get more information about my law firm.
• See our press release.

RIAA Keep your Hands Off My iPod by (_nickd)

By the way, the site that led me to the previous post is a pretty good read if you’ve got a law degree and a strong sense of sticking it to The Man. Recording Industry vs The People chronicles all the pending court battles, the tactics, and the players involved when the music cartel sues another dead woman, or a disabled man, or a technologically clueless single parent. They trumpet the victories, lament the losses, and help point the way to freeing the earth from the scorched-earth litigation tactics of this dying conglomerate. Worth a read even if you don’t have a law degree.

Some people think all lawyers are scum. Then, once every 13 years or so, a lawyer does something that makes everyone stand up and say, “Well done, my good man!”

This news is a couple of months old by now, but it still is worth re-telling that Merl Ledford is a hero for standing up in front of the tanks of the RIAA and making them back down.

Merl’s letter starts off:

The lawsuit filed by your office and your letter arrive at a particularly inappropriate time in Barry and Cathy Merchant’s life. Mrs. Merchant left my office after our first meeting to attend to ill father in Colorado. She and Barry Merchant left my office today to attend his funeral. You should advise your clients that they are facing a “thin skull plaintiff” either on a Rule 11 sanctions motion or (upon favorable termination) in a malicious prosecution action.

It gets better from there.

Your client should carefully consider whether it has probable cause to proceed at this point. Mr. Merchant’s hard drive is available for immediate, carefully supervised inspection by your client; a carbon copy of the drive has been made by technicians to insure that the evidence is well backed-up. At the time of inspection, we will expect your clients to be prepared to dismiss all claims with prejudice. The pleadings may be e-filed from my office the same day. Although dismissal will not avoid your clients’ exposure to attorneys’ fees under the Copyright Act, it will certainly mitigate damages to Mr. and Mrs. Merchant and the possibility of escalating the issues by counter-claim on federal grounds that have been successfully pleaded in other states as well as on pendant California claims that have, thus far, tempered your clients’ California zeal for litigating in this state.

(Emphasis added). In other words, even if you drop this suit, folks, you’re going to have to cough up some cash.

It is well documented that your clients’ reliance on MediaSecurity (an admitted “non-expert;” UMG v. Lidor, East Dist NY No. 1:05-cv-01095-DGT-RML) and its overall method of identifying P2P copyright infringers is wholly unreliable and inadequate.

Translation: You’ve got no case.

It is not too late to correct your clients’ (and your law firm’s) mistakes. My clients are willing to accept dismissal of the litigation in exchange for: 1. Payment of Mr. Merchant’s reasonable fees and costs including retainer… 2. Apology on your firm’s letterhead by your supervising partner for inappropriately filing and maintaining an action against Mr. Merchant without probable cause…

And then there’s the procedural discussion:

Procedurally, we need to address how best to move the case to the Fresno Branch so you can enjoy our new Courthouse and avoid Judge Levi’s wrath for filing in the wrong court…. Once the case is moved to the Fresno Branch, your clients should consider cleaning up their complaint. The FRCP and collateral estoppel from other RIAA law and motion matters require much greater specificity in pleading than your clients provided in the complaint I reviewed. Dates of the alleged downloads, which plaintiff (or affiliate) holds which copyright to which track, etc. must be specifically pleaded and proven. You are as familiar as I am with the results in other cases where RIAA’s general allegations have been challenged. Let’s get over that hurdle without unnecessary law and motion practice.

Translation: Even if you had evidence, your legal writing is so sloppy it would get tossed out of court.

And what was the result of this letter? The RIAA blinked.

We need more lawyers like Merl and a few less who are willing to pimp out their law degrees for the recording industry.

Do you know the significance of this number?

13,256,278,887,989,457,651,018,865,901,401,704,640

It’s currently at the heart of a battle over First Amendment rights. Some think it’s hexed.

FOR IMMEDIATE RELEASE: Florida lawyer Michael Alex Wasylik announced that he has filed suit today in U.S. District Court in Tampa against Chicago-based web application firm 37Signals. The suit alleges trademark infringement of the Perpetual Beta name and seeks damages in the amount of 13 signals – just over one-third of the company.

“I’ve ben using this name since 2000,” said Wasylik, “and then these guys come along and tarnish it by applying it to fly-by-night dot-coms like Google and Flickr. They’ve probably never had an original thought in their lives. I’ll show them!”

Citing a recent surge in online theft of intellectual property, Wasylik said the only remedy was to “sue the bastards. Sue them so hard that their grandkids feel it.” Asked how he filed the suit on a Sunday, Wasylik said that the court has special hours for the April 1st holiday

Contact: http://perpetualbeta.com/contact/

UPDATE (3/27/08): This case has been decided.

Ted Frank at Overlawyered weighs in on this Washington Post story about a lawsuit against anti-plagiarism service Turnitin:

There are entrepreneurs who come up with good ideas for services and products, and entrepreneurs who come up with good ideas for lawsuits against the first group.

Unfortunately, Ted doesn’t spend any time applying his considerable legal talents to the question of whether the lawsuit has any merit or the more important question of whether Turnitin is doing anything wrong here. I can’t imagine an entreprenuer’s idea to be a “good” one if it’s flatly illegal. I’d like to do what Ted didn’t. From Turnitin’s web page, here’s what they do:

Every paper submitted is returned in the form of a customized Originality Report. Results are based on exhaustive searches of billions of pages from both current and archived instances of the internet, millions of student papers previously submitted to Turnitin, and commercial databases of journal articles and periodicals.

Emphasis mine. The company takes all the papers submitted to it, and inserts those papers into a proprietary database which it then uses for commercial gain. Apparently, the company also uses excerpts from its database in its reports, where those excerpts have been re-used by a later author.

Assuming for a moment that high school students’ papers have the required originality to acquire copyright protection — and of course they do — does the Turnitin method infringe the copyrights of those students? To the extent that Turnitin 1) copies the papers, 2) distributed the papers, or 3) creative derivative works of the papers, it does infringe. I’m having a hard time imagine how the company could do all it says it does without doing all three: copying, distributing, and creating derivatives.

Does Turnitin have a valid defense? There are two likely possibilities: fair use, and license. License is the easiest to dispose of: the students did not choose to submit their papers to the company; their school did. Unless there’s some kind of voluntary written agreement by the students to participate in the program, I doubt there is anything here that could be considered permission by the students to have their work used.

Fair use is a slightly tougher question. The factors courts look at are:

1. Character of the use;
2. Nature of the work to be used;
3. How much of the work is used; and,
4. What effect would the use have on marketing of the work?

In this case the answers are: 1) commercial; 2) covers the whole spectrum from factual to creative; 3) complete use in the database, but excerpted use for reports; and 4) probably minimal, as few of these papers would ever see commercial publication.

Many courts will apply the fourth factor more heavily when considering fair use, so it’s impossible to predict exactly how a court would rule on this. I suspect, though, that the involuntary use of the complete papers for financial gain would, at least in some courts’ eyes, fall outside the fair use realm.

At the very least, these students can make a case that their copyrights have been infringed. Turnitin may present a successful defense, but that wouldn’t render the students’ claims frivolous in any way. Ted’s half-hearted slap at the plaintiffs is probably undeserved: their case has arguable merit, and it’s not being pushed by some lawyer just out to make a buck. According to the Post, he’s working pro bono. (Although it’s not impossible for such work to result in a fee award from the courts, it’s a pretty risky way to earn a living.) AlI can say is, if it were my papers being submitted, I’d be pretty pissed too.

Via Eloquation, an apology from LogoMaid.

In name of Vilords media I need to apologize for the inconvenience caused. I feel really sorry that we didn’t remove the logotype rightaway…and let this situation ascalate. It took us too long to understand the designer we worked with for over 3 years obviously did copy the main shape of your logo. We figured it when we saw the owl logotype…

Took too long? They only figured it out when that same designer uploaded another ripped-off logo days after the lid came off the scandal?

Well, read the whole thread and judge for yourself. But I wonder what “West Virginia’s Best Designer” has to say about this?

One of the most persistent myths in the area of copyright law is the notion that wrapping something in an envelope, mailing it to yourself, and then holding onto the delivered envelope somehow helps you protect your legal rights as the creator of a work. The “envelope method” not only doesn’t work, using it may result in you losing several important protections that other copyright holders enjoy.

The Theory

The argument in favor of the so-called “poor man’s copyright” goes something like this: under current U.S. and international law, copyright begins at the moment the work is created. No registration is required for a work to enjoy copyright protection under the law.

So far, so good. But proponents suggest using the envelope method as a way to prove that: 1) you are the author of the work; and 2) that you created it on or before the date of mailing. Once you can prove those two things, the argument goes, you can enforce your rights in court. Unfortunately, this part is wrong.

Your Envelope Doesn’t Prove a Thing

The only thing a postmarked envelope proves is that someone mailed an envelope. Not even a certified mail delivery can prove what was inside the envelope when it was mailed. But, some would say, opening a sealed envelope will show what’s inside. Yes, but that doesn’t prove that it was in the envelope when it was mailed. There are numerous tricks one can use, including sending the envelope unsealed, or steaming it open afterwards, or other tricks a careful Internet search might reveal, to put something in an envelope after it has been mailed. It still comes down to the testimony of the putative copyright holder claiming that the envelope contained what it appears to.

No authority will take the envelope method seriously. One federal court called it “bizarre” and “mysterious” when a songwriter tried to sue Mariah Carey, claiming that Carey had stolen a song the plaintiff wrote and had mailed to himself. The court ridiculed the supposed author, even saying, “As to the mysterious envelope purportedly containing a copy of the… composition, [he] has made no effort to explain why he would have mailed a copy of the composition to himself in 1989.” Even the Copyright Office advises the public that the envelope method has no legal significance and does not substitute for actual registration.

Registration Requirement

Not only is the envelope method lousy proof, it doesn’t save you the minor trouble of having to register your copyright if you want to sue an infringer. In order to enforce a copyright in court, the author must first register it. This registration is usually inexpensive, but an author who needs a quick turnaround time in order to file a lawsuit may have to pay as much as ten times the normal fee for an “expedited” registration. Ultimately, the envelope method costs much more money than it saves.

Benefits of Registration

Using the envelope method may also waive several important benefits. First, the registration itself provides proof of the date the work was created. Second, an author who registers a copyright before infringement can sue not only for actual damages, but also additional statutory damages, which in some cases may climb to the six-figure range for each violation. Finally, an author who registers before infringement can also recover the reasonable attorney’s fees incurred pursuing a lawsuit. The envelope method does not allow for any of these.

There’s Only One Place to Mail It

If you’re serious about protecting your copyright in something you’ve created, don’t cut corners by using the envelope method. For relatively small fee, and only a few minutes filling out a simple form, you can register your work with the Copyright Office itself, giving you the peace of mind to know that you can enjoy the full protections of the law if someone tries to steal your work. If you’re not serious, then don’t waste the time, the postage, or the envelope.

This document is for informational purposes only and does not substitute for the advice of an attorney licensed to practice in your area.

This work (this post only) is licensed under a Creative Commons Attribution-No Derivative Works 3.0 License. You may freely distribute this post as long as you do not change it in any way and you include this attribution: Written by Michael Alex Wasylik, 2007.

[PDF version available]

As Dan originally noted, and as Jon Gruber has reported in more detail, some shabby logo mill has ripped off the SimpleBits logo to re-package and sell for their own profit.

The Flickr thread is lengthy, and much of the amateur legal analysis on both sides is quite simply wrong. But it’s very illuminating, especially the several examples of theft by the shabby logo mill from an ever-growing array of victims.

It’s nice to see that the web is onto these assclowns and, given time, their “business” will dry up, rumble into dust, and blow away like mold exposed to the sunlight. But like many parasitic life forms, thieves evolve, multiply, and repeat. People who post creative work on the web need to be aware of their rights, and if they’re creative professionals, they should take steps to legally protect their work to the greatest extent possible.

UPDATE: But wait! There’s more!

UPDATE 2: Here’s a nice summary of all the rip-offs by the shady logo mill. And some PageRank rolling, too. By the way, try a Google search for the name of the offending company and see what pops up in the Top Five.

UPDATE 3: Godbit lists several blogs mentioning the issue. Also, be sure to check out my recent post on the so-called “Poor Man’s Copyright” and why it’s worse than useless.

UPDATE 4: An apology, Too Little, Too Late.