The position of the anti-SOPA activists is antithetical to the principle of protection — for authors, that is — mandated in the Constitution of the United States. Our nation’s founders recognized that furthering the rights of creators is in the national interest, to “promote the progress of science and useful arts” by “securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” Over the centuries, copyright protection has been codified in an expanding body of federal law in an attempt to implement the protection outlined in the Constitution.

The SOPA debate is emblematic of the growing tension between the copyright creator — the authors, composers, lyricists and artists who have contributed so much to the socio-economic fabric of American life — and the “interests” of the public in having free access to the works of others. However, the creator/public dichotomy is a false paradigm. What is truly at stake are the competing interests of the creators and the corporations who have acquired and are exploiting their works.

It is the rare creator who has the luxury to create simply for the sake of creating. As history has shown (every Renaissance artist worth his canvas had a patron), in order for creators to enjoy the benefits of their creations, it is necessary for them to cross over into the world of commerce, and to seek the patronage of publishers, record labels, and film and television producers. Sadly, the relationship between creator and corporate sponsor is seldom equal, as evidenced by the scores of documents executed by authors, songwriters and other creators, granting the rights in their works to corporate entities in perpetuity, often in exchange for modest compensation.

Congress attempted to include in the Copyright Act a series of provisions to give the creator (or the heirs of a deceased creator) the opportunity to terminate even perpetual grants of copyright, and “recapture” rights to their works in the U.S. These provisions, known as the “termination provisions,” were first introduced as part of the Copyright Act of 1976, and later modified as part of the Sonny Bono Copyright Act of 1998.

The intent of Congress in enacting the termination provisions was clear: To give creators, or their heirs, the opportunity to escape inequitable deals, or simply to revise the terms of their deals in order to share proportionately in the success of their creations. And, indeed, the opportunity to recapture rights is a potentially valuable asset for creators and their statutory successors. Yet, outside the music industry, the termination right is significantly underutilized, while even songwriters and recording artists are often thwarted in their attempts to recapture rights in a process made unduly complicated in response to pressure from corporate lobbyists.

Like the termination provisions, the real value of SOPA and other copyright enforcement legislation is its role in safeguarding the interests of the intended beneficiaries of copyright protection. Whether or not SOPA is the most effective means of curbing piracy in the online arena is a matter that should be thoroughly examined. However, the SOPA debate should not be commandeered as a vehicle for furthering the position of those who seek to write authors out of the copyright law and the Constitution.

Lisa A. Alter is a partner in the firm of Alter & Kendrick, LLP, in New York City. Her practice is focused primarily in the area of copyright law, with a particular emphasis on domestic and international music copyright issues. Ms. Alter has lectured frequently at law schools and professional meetings on copyright matters, and has represented clients on legislative matters impacting their copyright interests. She is the author of “Protecting Your Musical Copyrights,” which has recently been released in its second edition.

Several Republican senators, including Orrin Hatch of Utah, John Cornyn of Texas and Marco Rubio of Florida, said Wednesday they couldn’t support the legislation in its current form.

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But this one has a twist or two. The media company is Grooveshark, an increasingly popular music service that’s also being sued by all of the major music labels.

And Grooveshark doesn’t want information about alleged lawbreakers. Instead, it wants details about an anonymous user who posted comments on Digital Music News, an industry news site.

Paul Resnikoff, the site’s owner, publisher and primary writer, writes about the subpoenas (and posts them in their entirety) here. And Ben Sisario of the New York Times has a good summary of the story. So I’ll try to do my version very quickly:

• Universal Music Group, the world’s biggest label, is suing Grooveshark over copyright violations, and has cited an Oct. 2011 story that Resnikoff published, along with comments made by one more readers, in its case.
• The story concerned claims by musician Robert Fripp and his team, who argued that though they didn’t want Fripp’s music on Grooveshark, the company wouldn’t take his songs off its site.
• The comments in question came from someone who said they were a Grooveshark employee, and that they had specific instructions to upload music from the big labels to the site, without permission from the labels or artists. “And,” the commenter adds, “to confirm the fears of [Fripp], there is no way in hell you can get your stuff down.”
• Grooveshark is demanding that Resnikoff hand over “any and all correspondence or other communications” between himself and Universal Music over the story. They also want “any and all documents concerning the identity of the First Anonymous Commenter, including, without limitation, that person’s name, address, telephone number and e-mail address, and the IP Address and ISP associated with that person.”

Resnikoff says he won’t comply with the subpoenas. He tells me that even if he wanted to hand over information about his anonymous commenters, he couldn’t. He says that as a matter of policy his site routinely “flushes” any information about anonymous commenters within two days of their posts.

And Resnikoff says that even though the comments in this case contained explosive allegations about Grooveshark, he never tried to verify the commenter’s identity: “What the world sees is what we have.”

In his post, Resnikoff suggests he’ll be protected by whistleblower laws when he fights Grooveshark’s demands. But he tells me that his legal team isn’t sure what laws they’ll cite yet. “We’re just incredibly committed to protecting any informants or sources of information,” he says.

This fight has plenty of interesting gray areas. For instance: What kind of legal responsibility does a news site have for claims that its commenters make? But I’ll let media law experts weigh in on that. For me, the notion that a Web publisher that isn’t directly involved in a legal suit can be forced to cough up names and addresses of contributors makes me shiver.

That scenario also strikes me as similar to some of the worst-case scenarios that SOPA/PIPA opponents have been making in recent weeks — this is a Web site faced with big legal problems over the actions of a single user, right? So I’ll be interested to see if they jump on Grooveshark over this one.

But Grooveshark doesn’t seem to think anyone will get riled up about this. This afternoon, I received an unsolicited email from Edelman, its PR firm. The email contained a copy of the subpoena, and a statement Edelman wants attributed to Grooveshark: “Grooveshark reaffirms its confidence that it will prevail in this litigation and that this filing represents the next step in reaching that end.”

(Image courtesy of Shutterstock/photobank.ch)

Unless there’s a really big shift in sentiment among members of Congress on both sides of the ideological aisle, some version of the Stop Online Piracy Act is going to be passed by Congress sometime in 2012.

That means the legislation is going to wind up on President Barack Obama’s desk, requiring his signature, which would make it law; or his veto, which would effectively kill it. That makes it pretty much the first significant bit of technology policy he will face in the new year.

What’s not entirely clear is which way Obama is likely to decide. So far, the administration hasn’t sent any signals, one way or the other, on either SOPA or its companion bill in the Senate, the Protect IP Act (PIPA).

But there are some key clues.

SOPA and PIPA are proposed laws that would, among other things, give media companies significant new tools to police pirated online content that appears on Web sites hosted outside of U.S. borders. It would also require U.S. companies that link or do business with them in the normal course of operations — sites such as Google, Yahoo and eBay’s PayPal — to cease doing so.

For instance, Google might be forced by the courts or U.S. law enforcement agencies to stop providing search links to BitTorrent sites that host pirated copies of major motion pictures and television shows. It could go even further than that, by stopping U.S.-based Internet-service companies from allowing users to access any overseas site carrying pirated content.

Critics of the legislation charge that the two bills have gone overboard to protect content. Google Chairman Eric Schmidt has said it would “criminalize intermediaries.” Other companies, including Yahoo and Facebook, have claimed it could stifle innovation.

The problem the White House will face is that both bills appear to have a broad base of support in Congress. And proponents, such as the House Judiciary Chairman, Rep. Lamar Smith of Texas, are pushing the bill as a means of protecting American jobs by ensuring that profits from U.S.-produced intellectual property flows to the companies that created it.

But there are a few tea leaves indicating where the president might come down on this issue. For one thing, the administration has been pretty clear from the beginning that it supports an open Internet; not vetoing the bill now would be a major policy shift.

And, during 2011, the power of the Internet as a force for social change has been demonstrated throughout the Middle East: Dictatorships in Egypt, Tunisia and Libya are gone, and others are under threat by movements that have been largely organized and coordinated on Facebook and Twitter.

Just last month, Secretary of State Hillary Clinton, speaking at a conference on Internet freedom in The Hague, made an interesting comment that perhaps captures the nuance of the Obama administration’s position.

As the Hill noted, while sympathetic to the problem countries and companies face in combating the theft of intellectual property, Clinton said that governments can do so “without compromising the global network, its dynamism or our principles.”

The SOPA bill, in particular, would also criminalize contributing to or distributing technology that is meant to circumvent actions that block access to such content. That would put the government at odds with a project it has funded, the Onion Router (a.k.a. TOR), created by U.S. Naval Researchers and a nonprofit organization.

Under SOPA, the problem might be that people in more repressive countries, like China, can use TOR to anonymize traffic and thus bypass technical measures that prevent the free flow of information. The language in the bill is vague enough that TOR could be made illegal.

Then there’s also Obama’s promise to support a free and open Internet generally, which has been a major bedrock of his technology and Internet policy agenda. Early last month, Obama promised to veto a Congressional resolution that would overturn net neutrality rules that the Federal Communications Commission put in place earlier this year, and which was to take effect on Nov. 20. (The Senate saved him the trouble by voting against the resolution.)

Therefore, Obama’s stance on the issue perhaps hints at an aversion to any significant changes in the status quo of the Internet, which suggests he would likely veto any version of SOPA or PIPA that reaches his desk.

The Singapore-based media group, which publishes 18 newspapers here, seeks unspecified damages from Yahoo Southeast Asia Pte. Ltd. for the alleged copyright infringements, as well as a legal injunction to prevent further infringements, according to a writ filed last week to the city-state’s High Court.

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Consider how often we enter into legal agreements these days — and for nothing more than our entertainments. Once upon a time if you wanted a book you walked into a bookstore, paid your money and walked out with the book. Copyright law put some limits on what you could do with it, but you didn’t have to sign any special agreement. Now, according to the Amazon.com Conditions of Use, “If you visit or shop at Amazon.com, you accept these conditions.” The conditions follow and follow and follow — more than 2,000 words’ worth. It’s even worse if you choose to do your book reading on an e-reader. Amazon advises that if you’re not willing to sign an agreement running north of 2,500 words, “then you may not use the Kindle, any Reading Application, any Digital Content, or the Service.”

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Viacom and Google, who have been tangling over copyright violations at YouTube since 2007, will be at it again today at a federal courthouse in New York. The two sides will start oral arguments for Viacom’s appeal of the case, which Google won decisively in a 2010 ruling.

In the past, both sides have tried digging up evidence to discredit each others’ arguments, and while both came up with plenty of embarrassing stuff, they couldn’t find a smoking gun.

So now we’re back to the basic question of the case: How much protection does the Digital Millennium Copyright Act offer YouTube, or any other site that lets users upload and distribute content they don’t own?

That question has come up to the courts in at least three different suits in recent years: Viacom versus Google, Universal Music Group versus Veoh, and EMI versus MP3Tunes. And in all three cases, federal judges have offered up the same response: The DMCA gives Web sites enormous latitude. As long as the site serves a legitimate function, it can’t be held responsible if users upload stuff they don’t own. If copyright owners find something that shouldn’t be there, and they ask the site to take the offending piece down, the site has to comply. But that’s about it.

So far, that’s very encouraging news for all manner of digerati. And in theory, it’s quite threatening to media companies and other people who create, finance and distribute intellectual property for a living.

But things might not be quite so dire for the media guys. While you can read the recent court rulings as an invitation for a free-for-all, it looks a little different in the real world.

YouTube, for instance, has spent a lot of time and money creating systems to filter content on its site, which hoovers up more than 24 hours of stuff every minute. And it works hand in hand with most big media companies to help them keep stuff they don’t want off the site — and to help them distribute other stuff they do want there.

Included in that list of companies playing very nicely with YouTube — Viacom’s sister company, CBS. And once this suit finally gets settled — which could still take years — my hunch is Viacom will want to work closely with the world’s biggest video site, too.

[Image credit: Sweetheart/Shutterstock]

According to reports, the companies’ CEOs, Larrys Ellison and Page, are still at an impasse over how to settle Oracle’s patent-infringement lawsuit against Google over the use of Java in its Android operating system.

The latest sticking point: A recommendation from Oracle’s damages expert arguing the company is owed more than $2 billion for copyright infringement and $201.8 million more for patent infringement.

That’s significantly less than the $6.1 billion Oracle claimed Google owes it in court papers, but it’s still far too heady a figure for the search giant.

Reuters reports that in a Tuesday letter to the judge presiding over the case, Google attorney Robert Van Nest urged the court to reject that recommendation, slagging it as deficient. According to Van Nest, its failure to explain just how the figure was calculated and the forecast for how much revenue Oracle might have earned by partnering with Google on Android are grounds enough for ignoring it.

Meanwhile, talks between the dueling Larrys drag on, with an October trial date looming if they fail to reach a settlement.

In March, Denny Chin, now a U.S. Circuit Judge in Manhattan, rejected a revised $125 million deal to resolve separate lawsuits over scanning books for online distribution by Google via its Google Books site. In his decision, the judge found the pact would give Google the ability to “exploit” books without the permission of copyright owners.

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But there are two problems with the image:
* Though the caption on the photo’s TwitPic page says it shows you what “the ground zero site looked like this evening,” that’s not true. De Guzman took the photo of the memorial a year ago.

* De Guzman doesn’t want people looking at the TwitPic image at all. Even though his name appears via watermark credit on the top right of the photo, he didn’t give “@DesignedMind,” the Twitter user who took a screengrab of the image, permission to place it there. If you’re going to look at the photo, de Guzman asks, please take a look at his SmugMug or Flickr pages.

Hold on. This is the Internet. Where ideas and images and information want to be free, right? If you don’t want someone to see something you’ve made, you don’t put it online, right?

Nope, says de Guzman, via an IM chat: “There are clear ways to share content on the sites I put my photos on: Flickr and SmugMug. I’d be ok if they had used what was offered to them.”

But since they didn’t? Last night, on Twitter, de Guzman was referring to people who reposted his work as “thieves.”

I’m quite sympathetic to de Guzman’s argument, because the digital content I make for a living is supposed to be consumed in specific places, too. But it frequently isn’t — it gets quoted without attribution, or lifted wholesale without links, etc. — and usually I just accept that as a downside that comes with the many upsides the Web provides for information makers.

And in many ways, images seem even more susceptible to misappropriation than any other media, simply because most people don’t ever bother to consider that someone, somewhere, created the image they’re now passing along.*

Add in the concept of “fair use,” which is both crucial and muddy for old and new media alike (de Guzman gave me the okay to use his image in this post last night), and you can see how tough it is for image makers to control their own work.

But that doesn’t mean we shouldn’t try hard to do the right thing. Particularly when it’s easy to do so. The New York Post, whose Twitter account linked to the TwitPic image last night and made the thing go viral, has now put up a new tweet linking to de Guzman’s Flickr account. Both the Post and this Web site are owned by News Corp.

* I’ve been just as bad about this as anyone, though I’m trying to improve. For instance: Turns out the monkey avatar I’ve been using on my Twitter profile for several years comes from graphic designer Andy Rainford. Andy reached out to me — very politely — this summer, and since then I’ve been crediting him on Twitter, and now again here.

Charges brought by federal prosecutors against SAP’s former TomorrowNow Inc. unit mirror allegations in a long-running civil case between Oracle and SAP, which are bitter rivals in the software market.

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The arena for news readers on tablets and smartphones is competitive, with high-profile efforts such as Flipboard, Livestand from Yahoo, AOL’s Editions and start-ups such as Pulse and Zite.

The reason for CNN’s acquisition interest — as well as look-sees from several other publishers — is not a surprise: As readers turn more toward using these mobile devices to consume content, big media companies are trying to acquire the technology to serve up their fare to them.

It is a dicey arena, though, where content aggregation meets (and crashes into) content lifting. Vancouver-based Zite, for example, was sent a cease-and-desist letter in March, by a panoply of media companies (not CNN!) alleging various copyright violations.

That happened right after it was launched, with $4 million in funding from angel investors and Canadian grants and an innovative personalized article-picking algorithm.

As Liz Gannes wrote then:

[Then] Zite CEO Ali Davar describes the iPad as a way to “emancipate the technology” his team originated at research at the University of British Columbia.

It had previously been put to work in a browser plug-in called Worio. And, as you might have guessed, browser plug-ins are a tough business.

The free Zite app imports a user’s Twitter tweets, follows and Google Reader subscriptions, offers lists of pre-made categories, and then solicits feedback and refines over time a list of topics and sources the user is interested in. It features articles based on their popularity, number of shares from a user’s network and topic relevance. (Davar said he thinks a person’s Facebook network data is too heterogeneous to reliably recommend articles, so it’s not included as an option.)

Last week, a Canadian site called Techvibes first wrote about the possibility of the sale of Zite to CNN, which is based in Atlanta and owned by Time Warner.

In a press release, CNN said Zite would remain a standalone unit, as a wholly-owned subsidiary of CNN, and that CEO Mark Johnson will continue to run Zite’s operations, but now in San Francisco. CNN also said that Davar will remain an executive director and Mike Klass will continue as CTO.

In a statement, Johnson said: “Zite is thrilled about combining forces with CNN to create a world-class news discovery platform. In CNN, we have found a partner who shares our vision and passion. Being part of the CNN family gives us the capital to grow Zite’s business and continue to innovate in the space.”