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Are Podcasters Infringing?

Podcasts – essentially radio on demand – have become a crucial medium that many Americans take in information and media. As the popularity of smartphones show no signs of slowing down, and with it better quality apps for podcasting, popularity of podcasting likely will continue to rise. Podcasting allows people to listen to a many different types of content whenever they want and wherever they want. In 2013, Apple said subscriptions of podcasts through iTunes reached 1 billion.[1] And while podcasting has traditionally been associated with iTunes and Apple, other platforms such as Android have seen growth in downloads of podcasts.

Podcasting garners appeal because anyone has the capability of creating one – although gathering a loyal following of your podcast is obviously a more difficult task. But what if anyone that released a podcast was forced to pay a licensing fee to do so or else would face the prospect of a being sued? Continue reading

crowdfunding blog

Crowdfunding and Its Impact on Indie Film

Crowdfunding has become a popular new way for filmmakers as well as entrepreneurs, small businesses, and philanthropists to raise capital by obtaining small contributions from a large number of individuals over the Internet. Websites such as Kickstarter, IndieGoGo, RocketHub, and WeFunder have provided a portal for films like Wish You Were Here, Veronica Mars, and Sharknado 2 to obtain needed financing. A recent legislation has the potential to change this crowdfunding and indie film landscape. On April 5th, 2012, President Obama signed into law the Jumpstart Our Business Startups Act (“JOBS Act”), which legalizes equity crowdfunding over the Internet.

Crowdfunding can be a useful tool for filmmakers in a number of ways. It can build awareness as well as a fan-base for a project. Additionally, many times filmmakers are limited in people or companies they know. Connection-based crowdfunding can help these filmmakers meet others outside of their circle. If a filmmaker is short of financing, he or she can raise the necessary funds through various crowdfunding outlets. Finally, through reward/donation-based crowdfunding, filmmakers can take on more risky projects without giving up equity for money. Continue reading

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Apple Pay: More Personal Information, Less Privacy Concerns

Recently, it seems almost every week there is a new data breach at a particularly large retailer. If you’ve ever used a credit card at the store, a slight panic sets in that your information could have been stolen. You enroll in the free credit protection service provided and you continue to shop at the affected stores, paying with your credit and debit cards.

The continued use of credit cards with minimal privacy contemplation raises some questions about how we, as consumers and increasingly tech savvy individuals, take steps to protect our identity online and in traditional brick and mortar stores. Are we not as concerned as we should be about our personal information being exposed or hacked into? Have we become too accustomed to the convenience of the stores we frequent? Or do we think it is all out of our control? After all, your credit card details weren’t stolen from Target or Home Depot because you left your card on the checkout counter or the floor. The store’s records were hacked into and your information was compromised.

With the rollout of Apple Pay this past week, Apple offers a new innovative solution to privacy concerns when it comes to handing a retail clerk or waiter your credit card. In other respects, Apple Pay raises lamented concerns about the power and information stored on your smart phone. Continue reading

World of Warcraft

Real Jail for WoW-Crimes?

Recently, a British politician suggested that theft of virtual items in online games should be punished like real theft.  Mike Weatherley – by day the chief adviser on intellectual property to the Prime Minister, by night a mighty hero of Azeroth in the MMORPG World of Warcraft – asked the British Minister of State for Justice to propose legislation “to ensure that cyber criminals who steal online items in video games with a real-world monetary value received the same sentences as criminals who steal real-world items of the same monetary value.”  So if you steal an in-game magic item worth a real-life $100 (or £50, since we’re talking about England), you would get charged with theft of £50. (If this does become a real thing, I’d like to propose that this area of law be dubbed “WoW-Crimes.”  “World of WarCrimes” has a clever ring to it, but it also sounds too much like a Rwandan genocide simulator, and the world really doesn’t need that to exist.)

Mr. Weatherley tells it like this, “The perception from some people is that if you steal online it’s less of a crime than if you steal physically.”  I imagine that most of us would agree that such a perception is a faulty one.  As in-game purchases become a bigger and bigger thing, there might be a need for these kind of law.  Heck, the amount of time that my 3-year-old son and I spent playing Pokémon Y together is staggering (and well worth it).  I’d be furious and heartbroken if someone robbed the Pokémon Bank.

But, like just about everything to do with computers, the law is not well equipped to deal with these issues. Continue reading

AELJ Acquisitions Editor Wins IP Writing Contest

Kristen Niven

Kristen Niven, Acquisitions Editor of Cardozo Arts & Entertainment Law Journal, Volume 33, won first place in the  2014 Honorable William Conner Intellectual Property Law Writing Competition, awarded by the New York Intellectual Property Law Association. Her note, Towards a New Model for Social Media Newsgathering: AFP v. Morel and Digital Rights in the Age of Citizen Journalism, will be published in a forthcoming AELJ Volume 33. 

Panel: Resolving the conflict between the Convention on Cultural Property Implementation Act (CCPIA) and U.S. criminal law

In today’s panel concerning the reform of U.S. cultural property policy, panelists discussed whether there is a conflict between the Convention on Cultural Property Implementation Act (“CPIA”) and the National Stolen Property Act (“NSPA”) and whether it creates a problem. The general consensus of the panel was that while there exists tension between the two acts, there is no actual conflict between the CPIA and U.S. criminal laws, which can actually coexist. The panelists pointed to the fact that criminal cases do exist in the context of cultural property, but in most of the forfeiture cases there is another U.S. based offense included other than the NSPA line of cases. Panelist Andrew Adler discussed three of the main sources of tension between the two acts including: the disparity in the definition of the word “stolen,” the issue with repose, and a technical conflict with the burden of proof. From another perspective, panelist Michael McCullough stated that the most complicated area of concern is whether potential buyers risk criminal exposure when purchasing a piece due in part to a lack of clarity in the NSPA .

Another interesting point briefly discussed by the panel is the suggestion that the real underlying conflict stems from the international cooperation that has changed over the past 30 years. Moderator Jeanne Schroeder stated that the real conflict seems to exist between Congress circa 1983, when the CPIA was enacted, and the internationalist world today. Despite the fact that the panelists did not come to an agreement as to how this could be handled in the future, they all seemed to support the proposition that the CPIA and U.S. criminal laws do not conflict with one another.

Sarkeesian and Copyright: Testing the Boundaries of ‘Transformative’ Fair Use in Online Critique

A recent controversy within online gaming community involves the video blogger Anita Sarkeesian and her video series “Tropes vs. Women in Video Games.” Sarkeesian’s video critiques the portrayal of women in video games and related media. However, this controversy is particularly interesting because it involves a claim of copyright infringement.

In the video and promotional materials for the series, Sarkeesian used an image of “Princess Daphne” from the game Dragon’s Lair. The “official” depiction of Daphne in Dragon’s Lair looks like this:

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Sarkeesian promoted her “Tropes vs. Women in Video Games” series with a collage of female video game characters including Princess Daphne. However, Sarkeesian used an image of Daphne pulled not from Dragon’s Lair, but rather from the page of a fan artist named “Tammy” from CowKitty.net. Sarkeesian’s promotional materials featured Tammy’s artwork with her gray background and artist signature removed, as seen below:

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Tammy was upset that her work was used without her permission, and threatened to sue Sarkeesian’s company, Feminist Frequency. Sarkeesian and her lawyers responded by claiming that a “remixed collage is transformative in nature and as such constitutes a fair use of any copyrighted material as provided for under section 107 of the US Copyright law.” Allegations started to fly, and Feminist Frequency was challenged as not being a legitimate non-profit.

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Ryan Harkins: Big Data Means a Change in How We Consider Notice and Consent

Summary of Ryan Harkins’s presentation in a panel on “Disclosure and Notice Practices in Private Data Collection” at Data Privacy & Transparency in Private and Government DataApril 4, 2014 at Benjamin N. Cardozo School of Law.

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Ryan Harkins addresses the audience as part of the “Disclosure and Notice Practices in Private Data Collection” panel at Cardozo Law on April 4.

In addition to making visiting more websites possible, advances in technology have made collecting data from visiting all those websites possible. Further, advances in technology have meant the ability to analyze that data in ways beyond the imagination of researchers, with computers catching on to trends in data that people may have never noticed.

It’s all a part of “big data,” which is basically the ability to store and process massive amounts of data at rapid speeds, according to Ryan Harkins, Privacy Attorney at Microsoft. Advances in computing have allowed machines to draw insights or identify correlations that may not have even been contemplated at the time of data collection.

And with the advent of the internet of things, “there’s been an explosion in the amount of data that’s being collected about each and every one of us,” Harkins said.

Currently, the collection and use of this data is done under the guidance of the  Federal Trade Commission’s Fair Information Practice Principles (“FIPPs”), which are designed to ensure that data about individuals is processed fairly while maintaining some level of privacy for the user.

At the heart of the FIPPs is consent, Harkins said, but the notice and consent model has been weakening over time. The current regime places the burden on individuals, who are expected to read, understand, and make informed decisions on complex data activities. “It’s become exceedingly difficult for individuals to do,” Harkins said.

According to Harkins, the key is striking the proper balance between informing users of the important issues, but not overwhelm them. “On the one hand, you want to be clear and comprehensive, but you want to be comprehensible and precise on the other,” he said.

But while big data has tremendous promise for societal benefit – an analysis of how email spammers mutate their algorithms to stay ahead of filters helped a study map the mutation of HIV – it also threatens to obliterate the notice and consent model altogether, Harkins said.

Harkins offered several ideas on how to unlock the potential of big data while providing privacy protection for individuals, including strengthening and adapting the notice and consent model, bolstering other principles in the FIPPS (for example, better security, transparency, and integrity requirements), and even using technology as the solution to the problem technology has created.

For more from this panel, click here.