Digital photography complicates issue of "fair use."

The Wall Street Journal - Technology makes it easy to lift parts of someone else's music, video or other digital creations, tweak it, and call the result one's own. This usually causes no harm, but the case of a photo-turned-poster of Barack Obama is a reminder that just because technology makes something possible doesn't make it right.

Until the digital age, the common view of copyright law was that it served overreaching corporations against creative little guys. Groucho Marx once generated publicity for the Marx Brothers film "A Night in Casablanca" by playing on this cynicism. Warner Bros. asked for the plot of the film, fearing it would spoof its Humphrey Bogart classic, "Casablanca." Groucho Marx responded with a letter threatening a counterclaim against Warner for using the word "Brothers.

Now disputes are as likely to be little guy versus little guy, with artists and photographers split over the Obama case. One side defends poster artist Shepard Fairey, while the other cries foul on behalf of freelance photographer Mannie Garcia, who took a striking photo in 2006 while on assignment for the Associated Press of then Sen. Barack Obama gazing off to one side. Mr. Fairey discovered the photo on Google and used it, without crediting the photographer, to create the "Hope" poster. With Mr. Fairey's permission, the Obama campaign widely used this image to support the candidate.

Earlier this year, New York gallery organizer James Danziger was planning a show featuring Obama campaign art, including the Fairey poster. He wondered whose photo had been used, but Mr. Fairey refused to say. Online searching found it to be Mr. Garcia's photo. When the AP learned the poster was based on its photo, it sought standard licensing terms from Mr. Fairey, who refused. Instead, Mr. Fairey sued the AP, which has counterclaimed.

It's not clear who wins as a matter of law. The concept of "fair use" is broad, but photographers argue that the lighting, angle and much of the art of the poster, which seems to have been digitally created, was in the photo. Mr. Garcia, a veteran war photographer, worked hard for the image. "I'm on my knees, I'm down low, and I'm just trying to make a nice, clean head shot," he told National Public Radio. "I'm looking and waiting. I'm waiting for him to turn his head a little bit. . . . Boom. I was there. I was ready."http://online.wsj.com/article/SB123716866712036921.html

Many See Privacy on Web as Big Issue, Survey Says

The New York Times - As arguments swirl over online privacy, a new survey indicates the issue is a dominant concern for Americans.

More than 90 percent of respondents called online privacy a “really” or “somewhat” important issue, according to the survey of more than 1,000 Americans conducted by TRUSTe, an organization that monitors the privacy practices of Web sites of companies like I.B.M., Yahoo and WebMD for a fee.

When asked if they were comfortable with behavioral targeting — when advertisers use a person’s browsing history or search history to decide which ad to show them — only 28 percent said they were. More than half said they were not. And more than 75 percent of respondents agreed with the statement, “The Internet is not well regulated, and naïve users can easily be taken advantage of.”

The survey arrives at a fractious time. Debate over behavioral advertising has intensified, with industry groups trying to avoid government intervention by creating their own regulatory standards. Still, some Congressional representatives and the Federal Trade Commission are questioning whether there are enough safeguards around the practice.

Last month, the F.T.C. revised its suggestions for behavioral advertising rules for the industry, proposing, among other measures, that sites disclose when they are participating in behavioral advertising and obtain consumers’ permission to do so.

One F.T.C. commissioner, Jon Leibowitz, warned that if the industry did not respond, intervention would be next.

“Put simply, this could be the last clear chance to show that self-regulation can — and will — effectively protect consumers’ privacy,” Mr. Leibowitz said, or else “it will certainly invite legislation by Congress and a more regulatory approach by our commission.”http://www.nytimes.com/2009/03/16/technology/internet/16privacy.html

A Dirty Pun Tweaks China’s Online Censors

Songs about a mythical alpaca-like creature have taken hold online in China.

The New York Times - BEIJING — Since its first unheralded appearance in January on a Chinese Web page, the grass-mud horse has become nothing less than a phenomenon.

A YouTube children’s song about the beast has drawn nearly 1.4 million viewers. A grass-mud horse cartoon has logged a quarter million more views. A nature documentary on its habits attracted 180,000 more. Stores are selling grass-mud horse dolls. Chinese intellectuals are writing treatises on the grass-mud horse’s social importance. The story of the grass-mud horse’s struggle against the evil river crab has spread far and wide across the Chinese online community.

Not bad for a mythical creature whose name, in Chinese, sounds very much like an especially vile obscenity. Which is precisely the point.

The grass-mud horse is an example of something that, in China’s authoritarian system, passes as subversive behavior. Conceived as an impish protest against censorship, the foul-named little horse has not merely made government censors look ridiculous, although it has surely done that.

It has also raised real questions about China’s ability to stanch the flow of information over the Internet — a project on which the Chinese government already has expended untold riches, and written countless software algorithms to weed deviant thought from the world’s largest cyber-community.

Government computers scan Chinese cyberspace constantly, hunting for words and phrases that censors have dubbed inflammatory or seditious. When they find one, the offending blog or chat can be blocked within minutes.

Xiao Qiang, an adjunct professor of journalism at the University of California, Berkeley, who oversees a project that monitors Chinese Web sites, said in an e-mail message that the grass-mud horse “has become an icon of resistance to censorship.”

“The expression and cartoon videos may seem like a juvenile response to an unreasonable rule,” he wrote. “But the fact that the vast online population has joined the chorus, from serious scholars to usually politically apathetic urban white-collar workers, shows how strongly this expression resonates.”

Wang Xiaofeng, a journalist and blogger based in Beijing, said in an interview that the little animal neatly illustrates the futility of censorship. “When people have emotions or feelings they want to express, they need a space or channel,” he said. “It is like a water flow — if you block one direction, it flows to other directions, or overflows. There’s got to be an outlet.”

China’s online population has always endured censorship, but the oversight increased markedly in December, after a pro-democracy movement led by highly regarded intellectuals, Charter 08, released an online petition calling for an end to the Communist Party’s monopoly on power.

Shortly afterward, government censors began a campaign, ostensibly against Internet pornography and other forms of deviance. By mid-February, the government effort had shut down more than 1,900 Web sites and 250 blogs — not only overtly pornographic sites, but also online discussion forums, instant-message groups and even cellphone text messages in which political and other sensitive issues were broached.http://www.nytimes.com/2009/03/12/world/asia/12beast.html

Goggle Spends Millions Looking For Copyright Holders

The New York Times - Last month an e-mail message washed up at the offices of The Cook Islands News in the South Pacific. It was a request to place a half-page advertisement in the newspaper, which has a circulation of 2,500. The cost was $370.

“We were amazed — it came from out of nowhere,” the newspaper’s editor, John Woods, said in a telephone interview. “We are very skeptical of ads like that.”

Even more surprising was who was paying for it: Google.

Google, the online giant, had been sued in federal court by a large group of authors and publishers who claimed that its plan to scan all the books in the world violated their copyrights.

As part of the class-action settlement, Google will pay $125 million to create a system under which customers will be charged for reading a copyrighted book, with the copyright holder and Google both taking percentages; copyright holders will also receive a flat fee for the initial scanning, and can opt out of the whole system if they wish.

But first they must be found.

Since the copyright holders can be anywhere and not necessarily online — given how many books are old or out of print — it became obvious that what was needed was a huge push in that relic of the pre-Internet age: print.

Under the proposed settlement, reached on Oct. 28 and still subject to court approval, there must be an effort the court finds “reasonable and practicable” to find authors and publishers — especially copyright holders of so-called orphan books, which are still in copyright but long out of print. So the task means placing at least one ajavascript:void(0)dvertisement in every country in the world.

One reason courts have required such heroic efforts to reach the people covered by a settlement is that unless parties opt out of the settlement, they are automatically opting in. The least that must be done, the argument goes, is let those affected know about it.http://www.nytimes.com/2009/03/04/books/04google.html

Supreme Court to Revisit a Case on Breach of Copyright

WASHINGTON — The Supreme Court agreed on Monday to revisit a case it decided eight years ago in favor of freelance writers who said that newspapers and magazines had committed copyright infringement by making their contributions available on electronic databases.

In that 2001 decision, New York Times Company v. Tasini, the Supreme Court seemed to contemplate and even encourage a settlement of the case, saying that the parties “may enter into an agreement allowing continued electronic reproduction of the authors’ works.”

After the Tasini decision, many freelance works were removed from online databases. Most publishers these days require freelance writers to sign contracts granting both print and online rights.

In an effort to settle the original copyright infringement claims, authors, publishers and database companies undertook four years of what they said were intensive, complex and costly negotiations. In the end, the defendants agreed to pay $18 million for a global settlement of all claims in four class actions to two groups of authors — those who had registered copyrights in their works and those who had not.

The second group was by far the more numerous. But the federal copyright law allows suits claiming copyright infringement only after works are registered.

In November 2007, a divided three-judge panel of the United States Court of Appeals for the Second Circuit, in New York, declined to approve the settlement, saying it did not have jurisdiction over the claims of the second group of authors.

The question for the Supreme Court this time is whether courts may approve global class action settlements that include claims they would not have had jurisdiction to decide.

Many authors supported the settlement, but some objected. The objectors said that authors who had not registered their works were treated unfairly because their share would be reduced if there was not enough money to go around.

But all concerned urged the court to hear the case, Reed Elsevier v. Muchnick, No. 08-103.http://www.nytimes.com/2009/03/03/business/03bizcourt.html