Copyright Part 1: Guiding Principles and Online Application

February 25

The Internet has enabled individuals to become involved in the production of media and to distribute their contributions widely at a very low cost. The former bastion of the entertainment industry is opening up to what many are calling a democratization of culture. The copyright doctrine of fair use seemingly bolsters the right to recut, reframe, and recycle previous works, but the protection fair use gives to those re-purposing copyrighted material is notoriously uncertain.

Over the next two classes, this course will take up the some of the issues related to copyright protection and enforcement online. Today’s class will focus on the legal regime of copyright: what it protects, what it doesn’t protect, and how the doctrine has transformed in light of digital reproduction and distribution.

Assignments

The first half of assignment 2 (posting your prospectus) is due before class today. Information on the assignment can be found here. Please note that we have updated the final project page's FAQ section based on some student questions that have come to us over the past week.

Readings/Watchings

The mechanics of copyright law

• Wikipedia, Copyright Clause

• U.S. Copyright Office, Circular 1: Copyright Basics (read only Who Can Claim Copyright?, What Works Are Protected?, What is Not Protected by Copyright?, How to Secure a Copyright, and How Long Copyright Protection Endures)

• 17 U.S.C. § 107 - Limitations on Exclusive Rights: Fair Use

Digital applications and new challenges

• Lawrence Lessig, It is About Time: Getting Our Values around Copyright (watch first 6 minutes)

• James Grimmelmann, Why Johnny Can’t Stream: How Video Copyright Went Insane

Copyright solutions

• Creative Commons, A Shared Culture (video, watch all) and Spectrum of Rights

• Terry Hart, There is No Magic Bullet

• U.S. Department of Commerce: Internet Policy Task Force, Copyright Policy, Creativity, and Innovation in the Digital Economy (Executive summary only)

• Maria Pallante, The Next Great Copyright Act (skim Section II (323-339) only)

• Maria Pallante is the Register of Copyrights for the United States.

Recommended Readings

• Lewis Hyde, Common As Air: Revolution, Art, and Ownership (video, watch from 2:12 to 24:37)

• Jessica Litman, The Exclusive Right to Read (introduction and Sections I and II only)

• Julian Sanchez, Ars Technica, 750,000 Lost Jobs? The Dodgy Digits Behind the War on Piracy

• Lawrence Lessig, Remix: Making Art and Culture Thrive in the Hybrid Economy (Introduction only)

Links

Ecclesiastical courts: http://en.wikipedia.org/wiki/Ecclesiastical_court

Stationers Company: http://en.wikipedia.org/wiki/Worshipful_Company_of_Stationers_and_Newspaper_Makers

1662 press act: http://en.wikipedia.org/wiki/Licensing_of_the_Press_Act_1662

Statute of Anne: http://www.case.edu/affil/sce/authorship/statueofanne.pdf

Harvard on President Dunster: http://www.harvard.edu/history/presidents/dunster

Text of US Constitution: http://www.gpo.gov/fdsys/pkg/GPO-CONAN-1992/pdf/GPO-CONAN-1992-7.pdf

Useful article doctrine: http://www.copyright.gov/fls/fl103.html

LPs: http://en.wikipedia.org/wiki/LP_record

Gramophone Records: http://en.wikipedia.org/wiki/Gramophone_record

Lawsuits about sampling http://en.wikipedia.org/wiki/Legal_issues_surrounding_music_sampling

Girl Talk: http://en.wikipedia.org/wiki/Girl_Talk_(musician)

eldred v ashcroft: http://en.wikipedia.org/wiki/Eldred_v._Ashcroft

Joseph Story: http://en.wikipedia.org/wiki/Joseph_Story

Campbell v Acuff-Rose: http://en.wikipedia.org/wiki/Campbell_v._Acuff-Rose_Music,_Inc.

Legality of Dumb Starbucks: http://www.businessinsider.com/is-dumb-starbucks-legal-2014-2

UMG vs MP3.com: http://en.wikipedia.org/wiki/UMG_v._MP3.com

Class Discussion

REMINDER

Your comments must be submitted before 4:00PM ET on the Tuesday we hold class in order to count for participation credit. Please see the participation policy for more information.

Please remember to sign your postings by adding four tildes (~~~~) to the end of your contribution. This will automatically add your username and the date/time of your post, like so: Andy 15:12, 7 November 2013 (EST)

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--Melissaluke 16:05, 25 February 2014 (EST) This weeks readings reminded me of a very large error I made 15 years ago. Our firm wrote and published one of the first online instructional books covering how to buy and sell equities online. One of my clients asked if he could take a few of the publications back to China with him, to include video tapes of our partners buying and selling equities live on the internet.

All the material was converted into Mandarin within months. We lost everything and literally had no idea how to fix the problem.

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This is related to an earlier class, but a great article on Wikipedia's bots has just been published on The Verge... This machine kills trolls: How Wikipedia’s robots and cyborgs snuff out vandalism --Seifip 17:53, 19 February 2014 (EST)

What an interesting article! It seems rather shocking to me that users would protest the implementation of bots to patrol vandalism on Wikipedia. One comment cited in the article is that "Editing bots are wrong for Wikipedia, and if they allow it they are letting go of their vision of community participation in favor of the visions (or delusions) of grand technological solutions". This seems like an argument made on principle rather than for practicality's sake. Surely we benefit from these anti-vandalism bots, as Wikipedia would be worthless if people were allowed to make whatever edits they pleased, due to the proliferation of internet trolls. Castille 16:01, 24 February 2014 (EST)

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Regarding Copyright laws, it seems that there are many ambiguities and potential loopholes inherent in the system. How is it acceptable for musicians to freely perform "covers" of popular songs-- oftentimes to the extent that their entire act is merely covers, such as at weddings, corporate events, restaurants, etc.-- yet plays cannot be performed live without the consent of the author/copyright holder? It is not altogether uncommon in these situations for an artist to be paid to perform someone else's work, for the purpose of entertainment. What is the difference, then, between these situations? Based on Grimmelmann's article "Why Johnny can't stream", it appears that there are is an endless string of individuals and companies finding new ways to circumvent the laws, so that new laws must be implemented. Where does this stop? Is this due to rebellion against unfair copyright restrictions, companies merely trying to exploit artists and capitalize on their work, or individuals trying to be greedy or subversive?

By the way, has anyone heard about Aereo's progress, and/or where it currently stands in the legal system? I looked it up online and it seems to be taking on members who want to pre-register for the service, though the article was written in August of 2012, so you would think it would be out by now. Castille 13:08, 23 February 2014 (EST)

I was also curious about where the Aereo case(s) were currently... and happened upon this update published last week (also in arstechnica) "Aereo loses copyright fight, gets banned in 6 states" http://arstechnica.com/tech-policy/2014/02/aereo-loses-copyright-fight-to-tv-networks-in-utah/ and as Comcast/NBC "cuts a deal with Netflix"...as well as potentially merging with Time-Warner, just how "lovely" is that? http://www.forbes.com/sites/petercohan/2014/02/24/does-netflixcomcast-deal-remove-obstacle-to-twc-merger/ Psl 11:35, 24 February 2014 (EST)

Great comments! As to "covers" of popular songs, those are not usually free uses, but instead uses that are licensed in ways that most of us don't normally see. As to covers of live music, those are usually handled by blanket licenses from performance rights organizations (ASCAP, BMI, and SESAC) through either the venue or the artist. For recorded covers, there is actually a statutory license in the law which allows the covering band to do this without permission, provided they pay a particular fee per copy sold. (These days most of that is administered through a corporation called the Harry Fox Agency.) And as for Aereo, the Supreme Court has agreed to hear the appeal from the Second Circuit's case (one of many, as Psl points out), which will in all likelihood set the standard for Aereo's legality nationwide. So we will see! Andy 16:48, 24 February 2014 (EST)

But certainly there are artists who are not paying royalties or any sort of licensing fee when they cover a song. Perhaps this is simply because there likely isn't anyone present who will verify that the artist has secured permission? For example, the copyright for "Happy Birthday to You" is owned by Warner/Chappell and therefore, a fee must be paid for any public performance of the song. Nevertheless, it is performed in public daily. How is that navigated by the law? Was Marilyn Monroe technically breaking the law when she sang it in public to JFK?Castille 23:05, 26 February 2014 (EST)

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COPYRIGHT OF TEXTBOOKS

Based on the readings, how is it possible for new math textbooks for elementary and high school to claim copyrights when the content has not changed for decades? Perhaps examples and illustrations and format of presentation used across different textbooks may differ, but the content and concepts taught are essentially the same.

Ichua 18:19, 24 February 2014 (EST)

This question drives right to the heart of what is protected vs. unprotected under copyright. We're going to tackle that in some depth tonight. Andy 12:31, 25 February 2014 (EST)

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NPOV AND COPYRIGHT IN WIKIPEDIA

Because of NPOV, all content in Wikipedia need to be copied....and referenced. If one copies everything or extensively from a single source, would it still be legal? And if one copies from many sources, it is called a work of research? Ichua 19:51, 24 February 2014 (EST)

Ichua 19:51, 24 February 2014 (EST)

While the question of "is that research" is a complicated one, the particular copyright licenses offered over Wikipedia content are here. It's a bit complicated and depends on the particular media in question, but most adhere to the Creative Commons CC-BY-SA license for content, which allows use with attribution back to Wikipedia, provided what you use it for is also licensed under this same open term. We'll talk more about this tonight. Andy 12:31, 25 February 2014 (EST)

I almost forgot what i wanted to say about Creative Commons. As online content developer, sometimes we do indeed want certain content to be copied freely for marketing purposes or we felt it should be offered free to certain people, but people dare not distribute such content for us because of copyright infringement. Ichua 13:02, 25 February 2014 (EST)

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The article, There is no Magic Bullet, was an interesting read. He talks about the idea of combatting piracy as often being boiled down to: “make piracy harder, make legal options easier" which is problematic. The availability of technology is making piracy a lot easier these days. While, legal options are usually a long and expensive option in most cases. This leaves us at a problem. The emergence of easy and paid websites, like amazon and netflix, worked as a legal alternative instead of piracy but it has not been successful in a world-wide scale so far. I think as long as there is a easy, free alternative, it will often be the first choice for most people, even it is illegal. It doesn't always have to be bad, especially as it relates to creative content like music. Free sharing is often a great opportunity for growth and marketing. I'm interested to see how copyright laws and creative content will develop with the advancement of the internet. I wonder if making piracy harder is a viable option at this point without infringing on personal content.

Lpereira 20:56, 24 February 2014 (EST)

It's a great question, and one that we're still trying to explore and understand. The anecdotal evidence we have suggests that countries that offer legal alternatives to piracy have experienced a drop in BitTorrent traffic since those have been made available, but it's near impossible to draw further conclusions off of that single point of data. Andy 12:31, 25 February 2014 (EST)

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Reading the Grimmelmann "Why Johnny Can't Stream" article I'm reminded of how the music industry fought so hard against services like Napster, while simultaneously it was the emergence of technology like iTunes--and the consequent unbundling of music tracks from albums--that spelled the end of their industry as they knew it. Similarly, "broadcast" and the gatekeeper model of media distribution is at an end. While the broadcasters fight services like Aero, the whole idea of DVR (whether in your living room, or in the cloud) is not going to be relevnt in the future: services like Netflix's original content (e.g., House of Cards) and HBO Go, where content will be made available by the content owner itself, disintermediating the cable networks, will be the norm. In this environment, we won't need a DVR and cable companies won't be relevant. It seems to me that part of the strategy with services like Netflix original content or HBO Go is twofold: to eliminate their dependence on distribution networks, while also rendering DVRs (and their consequent copyright issues) obsolete. After all, I'd be buying my content by-the-drink from the creator rather than from a distribution network where I have a legitimate reason to copy it and watch at different types or with commercials removed.

Jradoff 20:58, 24 February 2014 (EST)

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A separate question: why did the framers consider copyrights/patents important enough to mention in the Constitution? Why not just leave it to Congress to worry about as part of regulating interstate commerce? As Lessig noted in his video, intellectual property law was a very minor concern for anyone prior to the 20th century. The Internet Policy Task Force doc claims that "the Framers intended copyright itself to be the engine of free expression” but that's stated as an assertion (quoting the Supreme Court) without any explanation. I'm interested in understanding the historical context and what the framers were concerned about. Thoughts?

Jradoff 21:00, 24 February 2014 (EST)

We'll be talking about that in class today, but the Lewis Hyde lecture in the recommended reading (and his book, Common As Air tackle that at considerable length). Andy 12:31, 25 February 2014 (EST)

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WHY COPYRIGHT ISN'T AN ISSUE FOR ONLINE LEARNING:

Simply replicating textbooks into digital format for online accessibility is not good enough for online learning. Otherwise, all students should be getting A's for math and science just from reading textbooks. When my staff develops online resources for math, a lot of attention goes into how to engage the student online through interactivity, choreography, and animation. We also bear in mind how these resources might be used in the classroom. We incorporate multiple modalities of teaching, learning and self-assessments. And the skills required for creating an online learning resource are very different from just producing a textbook. We need the teacher or content expert to be able to think like a script-writer, a movie producer, a choreographer, a programmer and an animator, all rolled into one.

Ichua 02:44, 25 February 2014 (EST)

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PLAGIARISM AND ONLINE APPLICATION OF COPYRIGHT

It is very common to see several websites replicating the same information word-for-word. This makes internet searches very inefficient and frustrates internet users trying to do research on the web. Search robots should be used to warn website owners to remove such content.

Ichua 11:38, 25 February 2014 (EST)

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HOW ONE COUNTRY CIRCUMVENTS THE COPYRIGHT PROBLEM IN DISTRIBUTION OF KNOWLEDGE TO THE POOR

The copyright protects the earnings of the author and publisher and ensures that each copy of the book contributes a return to their investment. But the poor has no money. How can a country distribute knowledge to the poor? The Indian Ministry of Education seems to have authored their own content and made these academic content available online for free.

Ichua 11:57, 25 February 2014 (EST)

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Smartphones have also helped citizens in being able to access the internet without a broadband home internet connection. Estimates claim that 56% of Americans now have smartphones and this has helped to significantly bridge the gap domestically.

http://techland.time.com/2013/08/26/for-some-without-home-broadband-smartphones-bridge-the-gap/

It appears that part of my last posting was cut off, but I am glad to see the Ichua brought up the issue of distribution of knowledge to the poor. It is honorable that the Indian Ministry of Education has taken steps to make this knowledge available online for free; yet, the impoverished may still be unable to access the internet in general. The "digital divide" has caused many third world nations without access to internet to fall further behind in global standing both academically and economically. Furthermore, within the United States, less fortunate communities with little access to internet are falling behind and some have argued this has contributed to educational dilemmas as resources on the internet are inaccessible to them as opposed to traditional textbook instruction. On the other hand, the internet has worked wonders in affording students like us to be enrolled in a course and dialogue with each other from across the nation (and world). Philanthropists, humanitarians, and good Samaritans alike have taken matters into their own hands to bridge the gap. The power of the internet has transformed social work as evidenced by the 2013 CNN Person of the Year, Estella Pyfrom, in her creation of a "Brilliant Bus" computer lab (on wheels) to tutor and service low-income communities:

http://www.cnn.com/SPECIALS/cnn.heroes/2013.heroes/estella.pyfrom.html

--AmyAnn0644 10:20, 26 February 2014 (EST)

--AmyAnn0644 13:25, 25 February 2014 (EST)

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CUSTOMIZABLE ROYALTY FREE SOUNDRACKS

This is a cool software which I started to use a decade ago: http://www.smartsound.com You can specify the duration of the desired type of music and it will auto-generate the royalty-free soundtrack.

Ichua 12:22, 25 February 2014 (EST)

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NEW SOFTWARE WHICH ENHANCES CREATIVITY AND REDUCES INFRINGEMENT OF COPYRIGHT

New versions of software such as PhotoShop, Maya, and CrazyTalk, are now more powerful, user friendly and cost much less than a decade ago which enables the user to quickly create high quality original images, textures, scenes, and animations. This gives artists more incentives to exercise their own creativity and avoid copying from other sources.

Ichua 12:44, 25 February 2014 (EST)

Everyday millions of videos are uploaded to the servers of YouTube and responsible for assessing whether or not they are in accordance with the rules of copyright is the ContentID. The tool was created by Google to analyze the productions in search of pieces of audiovisual works protected by copyright. The record labels and movie studios send copies of their original works and the system compares numerous excerpts with what is being shared on the network to find illegal copies on site. When the system finds a similarity between the video posted by a user with videos available in a database registered in the ContentID , the rights holders are notified and must decide what will be done. Some options are: block the video, leave it mute or unavailable; monetize by displaying ads and inserting the video link to the original owner of the content , or even track it views with the statistics being computed only on who Analytics own the copyright on the work. http://www.youtube.com/my_videos_copyright gisellebatista

Great point, Giselle! We're going to talk about the "private ordering" around copyright (and the issues that come up there) with Adam Holland from Chilling Effects next week. Andy 14:53, 25 February 2014 (EST)

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Outside of doubling down on the penalties for copyright infringement, we seem to gather very little cooperation for addressing the challenges of digital copyright. Any solution proposed with direct enforcement appears to cut corners with due process. Let's have the ISP's monitor and throttle back activity. However, ISPs lack the skill set and capability to interpret copyright law and adjudicate penalties. Increased inspection and examination of content brings about a level of surveillance that most users are uncomfortable with in their digital travels. VACYBER 13:12, 25 February 2014 (EST)

Some of these hard questions between enforcement and other values will be tackled next week when we discuss the DMCA, SOPA, Six Strikes, and some of the other enforcement ideas floated over the past decade or so. As I've said a few times in this class so far, there are no easy answers here, but I hope we can explore the values at stake. Andy 13:59, 25 February 2014 (EST)

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Copyright infringement in many countries is still not resolved. As a result of infringement the music, films, videos, books and other information can be freely downloaded by users without the appropriate permission of copyright owners. A lot of people event don't know the difference between legal and illegal dissemination of information. This situation also impacts government (for example, tax issues) From my point of view, the reason is that the current legislation in many coutnrties is not enough for internet as it doesn't incorporate the characteristics of Internet. The new methods of protection of copyright should be established with close cooperation of internet providers (for example, blocking th user from access to certain website for several days in cases of infringement of copyrights or financial means as penalties). Aysel Ibayeva (Aysel 14:57, 25 February 2014 (EST))

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It seems as though copyright as a whole is (and must) follow down the same path as online streaming did -- adapt or being adapted by the circumstances. Free online streaming is now legitimatized by the Crackles, etc. of the world. The industry adapted. Of course, that industry issue was based in copyright issues. But it now looks like other forms of copyright issues may have to follow down the same road. I'm thinking in particular of indie artist sampling and uploading material illegally (the control of this was main focus of my prospectus.) Twood 15:14, 25 February 2014 (EST)

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First of all, I would say the article written by James Grimmelmann has opened my eyesight. Copyright is a really interesting topic that I would love to look into, especially the copyright on derivative work, in the other words, re-creation. In Hong Kong, the Government has been trying to ban derivative work by enacting a law to restrict people from re-creating. Jolietheone 15:18, 25 February 2014 (EST)

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Copyright based laws seemed be to pretty much straight forward until the Internet came along. Actions of recording and copying in cases such as Sony’s debated whether it was legal to record with a VCR and view it later, a process known as "time-shifting". This was protected under a provision of 17 U.S. Code § 107 fair use. But a major problem came with Internet piracy, cited in Terry Harts article, There is No Magic Bullet. He has a simple solution: “make piracy harder, make legal options easier”, but it is not so easy to put into practice. It is an impossible task to scourer the billions upon billions of transactions happening online everyday. It seems that copyright laws have became bogged down by too many technical work-arounds that should be illegal but are technically not. These "protections" ultimately just make the law way more confusing. A large problem is because the laws are not national, Aereo is not legal in New Jersey, but what happens if someone hacks Aereos account from a remote site? Can Aereos still be sued for copyright violation? Emmanuelsurillo 15:21, 25 February 2014 (EST)

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From a global perspective, I think that copyright infringement is a bigger problem in developing countries than here in the US. Take, for instance, a country such as Senegal where there are artists, authors, and content creators of kinds. The problem of copyright infringement had become such a serious issue for musicians that they are now turning to the internet (most specifically Google's YouTube) for help. What an irony, right?! The internet used to be and still is the place where a lot of copyright infringements happen due to its hard nature to regulate. However, in countries such as Senegal where musicians are finding it harder and harder to rightfully monetize their work, their "Ministry of Culture," whose head was also a musician, is now encouraging artist to partner with Google in order to distribute and monetize their entire albums on YouTube. As Andy has already mentioned and explained YouTube's copyright tool called "ContentID," more and more artists in West African countries where the YouTube partner program has launched are now relying on "ContentID" and uploading their entire works on YouTube. Therefore I believe that, generally speaking, internet companies and organizations such as Google, Facebook, Wikipedia, and others should continue to help build tools that will fight this phenomenon. It will benefit internet users worldwide as well as their respective companies. cheikhmbacke 15:48, 25 February 2014 (EST)

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I've been truly impressed by Lawrence Lessig's presentation and couldn't stop watching till the end. He rose some very important questions, in a very pertinent way, and it is by far the best presentation I've seen so far on why copyright has to be rethought from the ground up, but not abolished. I think the point that we can't kill the technology, only criminalize it, is especially important for everyone to finally realize. --Seifip 15:52, 25 February 2014 (EST)

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It is timely that this week’s class on copyright just so happens to coincide with the Harvard Library’s “Fair Use Week” celebration activities. As you will have noticed by this week’s reading, it is because of the Fair Use provisions and the First Sale Doctrine, that libraries have been permitted to serve their core mission in our society. And while recent court cases have come down favorably on the side libraries (Kirtsaeng v. John Wiley & Sons, HathiTrust vs. The Authors Guild and (to some extent) the Georgia State E-Reserves Copyright case), threats to these freedoms we enjoy in simply sharing information are not going away anytime soon. Licenses are become more complex in our agreements with electronic vendors, and what we “presume” may be covered by fair-use and the first-sale doctrine can be quickly wiped out by a license agreement with a content provider… Who, in many cases, possesses the sole exclusive access to the content we need to provide to our research community. How did the content provider gain sole access to all the research that was produced by authors? Some of you may have noticed a little phrase in the section on “Who Can Claim Copyright”… it said “Only the author or those deriving their rights through the author can rightfully claim copyright”. Journal publishers frequently “corner” the author (my choice of words) into signing over “copyright-transfer-agreement”, which (frequently) transfers the full bundle of copyright that the author(s) obtained at the point of “fixed work”, and give the full bundle of copyright exclusively to the publisher.

Anyway – Celebrate Fair Use Week… more info here, with a familiar name on Friday’s panel. http://library.harvard.edu/02242014-1000/its-fair-use-week

Psl 15:56, 25 February 2014 (EST)

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Being a musician and songwriter myself - I was both, a little bummed out and a little enlightened at the same time, by the reality of what potentially could happen to anyone who puts anything online. Having posted music at different places online, then taking it off and changing it completely for my own reasons is obviously my choice, but to have this happen to someone with at least a somewhat semi-known artistic presence such as Erin McKeown, is a little disconcerting to say the least.

Several things come up when I read this – but I will limit it to one or two:

For instance, it seems like no one is taking SOPA seriously both domestically and internationally (well... maybe they are and maybe they aren't), as it has some big time major opponents in the U.S and abroad. For someone like Erin and all those who are not (like me), one’s only recourse is to hope that they (just call them for what they are, pirates) have some type of financial business ties to the U.S., so that some type of action can be taken legally. This is from our readings this week, “But these provisions are likely not the real force of the law, as fully overseas infringing sites (probably just insert countries here too) may try to ignore a U.S. court order. The law’s real force is focused domestically. Once a foreign infringing site has been made the subject of a court order, the Attorney General may apply the court order not only at the site but at American companies that occupy the space between the infringing site and an American end user’s browser- specifically, service providers, search engines, payment network providers, and advertising networks. Id. at § 102(c)(2)”1 After looking at my readings this week - what I get is that SOPA has very nice intentions, but is somewhat toothless while still maintaining a loud roar in the U.S. to frighten any one that might be listening. I know it’s a start, but it should have been a well-planned start, so that the lion can have some real teeth.

And as far as legal or any type of punitive action is concerned abroad, well… it seems like there really is none – believe it or not, I am liking iTunes more and more – The good thing about internet globalization, presently (vs. 2003-2008), is now, there is no place to hide because most of us are connected one way another – what will that mean in the years ahead, I am not sure, but it might not be a bad thing - for us home-brew amateurs.. :o) 1. Jonathan Zittrain, Kendra Albert and Alicia Solow-Niederman: A close look at SOPA - http://blogs.law.harvard.edu/futureoftheinternet/2011/12/02/reading-sopa/)

Dancoron 14:51, 4 March 2014 (EST)