Since I have to deal with this stuff on a daily basis (as a part of my job), I figured it wouldn’t hurt to post about it. From what I’ve seen, there is a rather widespread misunderstanding about online copyright-related issues, and it can put people in legal hot water if they’re not careful.

Note: I’m not a lawyer, though I deal with law-related stuff on a daily basis. I’m not even billing you (and lawyers always bill!). Whatever you may construe as advice in this post isn’t, and - financially speaking - whatever it is is worth even less than what you paid for it. If you really want to know more about this stuff and don’t want to risk getting BS information from some random guy on the Internet, hire a qualified intellectual property attorney.

Now, that said…

Copyright

Copyright is, in a nutshell, a societal/legal construct that allows creators of works to retain the distribution rights of those works.

As a general rule, stuff that you create is copyrighted at the very moment that you create it - be it a poem, a story, a song, a video, or even source code (if you’re a programmer). It doesn’t even have to be creative - a shopping item list can (usually) be copyrighted. You don’t have to register for copyright protection, though doing so makes it significantly easier to protect that copyright should your case ever go to court. As a general rule, unless someone has specifically put something under the public domain (which almost never happens) you should assume that somebody somewhere owns its copyright.

Note that there are certain things that you cannot copyright - facts or names of things are good examples (though in the latter case you can potentially utilize trademark law, which is a whole other legal concept altogether).

What does copyright provide you with? It allows you to decide under what terms another person may obtain your work, and under what terms it may be redistributed to others. You can, for example, provide a license to someone else in exchange for money allowing them to have a copy of your creative work (this is how CDs, DVDs and software typically work - you aren’t buying the content itself, you are buying a license to use it). This is pretty common. If your motivation is different you could just as easily license your work under a Creative Commons license, or - if you’re a programmer - license it under an open source license.

Maybe you just want to post your works on your web site and know that someone can’t copy it and put it on theirs. Copyright law allows you to prevent distribution entirely if you want, too.

If someone violates your copyright by illegally acquiring your copyrighted work - or worse, distributing it in a manner you do not allow - you can also sue them and receive damages. If you’re the RIAA, you can also sue their dead grandmother for good measure.

Fair Use

Copyright doesn’t do everything, however. As a society we have decided that as a practical matter people must be allowed to use copyrighted material in certain ways without fear of retribution. The main purpose of Fair Use is to allow for people to offer commentary about copyrighted material, so that copyright holders can’t unduly and selectively squelch the speech of those who have something to say about them.

For example, if you’re writing a weblog post you can quote a short portion of copyrighted text (such as another person’s weblog post) if you wish to provide a response to it or commentary about it. You can’t, however, quote huge swaths of their post verbatim without potentially infringing upon the other person’s copyright. You can also incorporate copyrighted material into parodic or satiric works, to a certain extent.

Fair Use is a very tricky thing, and often the line between what does and does not fall under Fair Use is judged in a court room. There are a number of common misconceptions about Fair Use, and in my experience people interpret it to be far more broad than it really is. A few of the more common ones I see:

• “My use is non-commercial. I’m not making money, so it’s okay.”
  This is not a valid defense against copyright infringement claims. While if you take in
  a profit in your infringement you’re much more likely to be sued (and are more likely to
  receive a large judgement against you for damages), copyright infringement is technically
  just as illegal if you’re not making money from it as it is if you are.
• “There wasn’t a copyright mark on it!”
  Putting a copyright mark (”©”) next to your work makes it easier to defend, to an extent,
  but it’s not what determines if something is actually copyrighted or not. If you’re involved in
  blatant infringement, this won’t protect you.
• “I attributed it to them.”
  It doesn’t matter if you’re not claiming to be the creator of the work, or even if you attribute
  it to the right person. This is often, however, a clause in certain licenses that allow you to
  use someone else’s copyrighted content if you want. For example, this weblog is covered
  by a Creative Commons license that allows for redistribution with attribution.
• “It’s a back-up!”
  This actually is a legitimate argument in many cases, though it sort of depends on a few
  things. The DMCA (which I will explain below) had provisions against “anti-circumvention”
  devices, and with modern copy protection schemes in place it can be difficult to even
  make a back-up without somehow circumventing that protection (while it may be
  legally Fair Use to make a back-up, copyright owners aren’t required to make it easy on
  you). This can lead to a strange situation where the back-up itself may be legal, but the
  process of making it wasn’t. This is one aspect of the DMCA that is a little moronic, and
  really needs to be changed in my opinion.
• “It’s okay as long as you delete it in 24 hours.”
  This is a common response from those who “share” video game ROMs online. They often
  post a note saying something to this effect on their site. As far as I know there is no
  24 hour exception for the downloading of copyrighted game ROMs or other software.
  I’m kind of curious how this myth got started.
• “It came from another country.” or “It’s unlicensed in the US”
  I see this a lot amongst anime fans (especially “fan-subbers” - those who add subtitles to
  animated shows/movies not in English), and I’m not entirely sure where it comes from.
  Japan is a signatory to the Berne Convention, which is more or less an agreement among a large number
  of nations to recognize eachothers’ copyrights. This means that if you infringe upon the
  copyright of someone in another country, you can be held liable. It’s not necessary for
  the content in question to have been released in the US to be protected, and re-posting
  the same content with subtitles added in particular falls well beyond Fair Use doctrine.
  Really, if you think about it, the argument sort of falls flat on its face: Why would any US company
  go through the trouble of even obtaining a distribution license in the first place if the other
  nation’s copyright isn’t recognized in the United States?

Digital Millennium Copyright Act

The Digital Millennium Copyright Act, commonly known as the DMCA, is an amendment to US copyright law that was passed in October of 1998.

The DMCA has a few goals, some of which were added at the behest of the entertainment industry and their army of lobbyists. The law extends reach of copyright law in such a way that curbs the use of “anti-circumvention devices” (ie. tools to break copy protection). This is a pretty controversial aspect of the law, as as a matter of practicality this also often interferes with the otherwise perfectly legitimate use of content which has been licensed to you. For example, backing up DVDs and music files to your iPod, etc. I’m not going to get into this matter very much (as it’s the aspect of the DMCA that I deal with the least), but you can read up on it here.

Another major portion of the DMCA is the Online Copyright Infringement Liability Limitation Act, which provides a process with which to have copyrighted content taken offline (if you find someone distributing your content on the Internet) - or, if the complaint against you is bogus, to contest the charge and have it put back up. It also provides online service providers (ISPs or web hosting companies, such as the one I work for) with immunity if they take certain steps in response to copyright complaints.

If your copyrighted material is stolen and is placed online…

If you have created something and you believe it is being infringed upon by someone who has posted it online, you can submit what is known as a DMCA Notification to their web host. This is basically just a legal statement that the content is yours, that it is being used/distributed improperly, and that you want it taken offline.

At that point, the web host will be required to have the content taken offline (this is known as a DMCA Takedown). They may either do it themselves or require their customer to do it. They are supposed to do this expeditiously, though working at a web host is a super demanding job performed only by the most intelligent and stunningly attractive people and I could they could very well be swamped with other work as well.

If the content is indeed infringing, this will probably be the end of it. However, there’s also the potential that the person on the other end thinks you’re full of it, and decides to contest your claim.

If some jerk files an invalid/false DMCA Notification…

Sometimes, this happens. Maybe you think that your use of their copyrighted material falls under Fair Use, or perhaps the content is actually yours and you own the copyright. Maybe the other party’s lawyer mistakenly dotted the t’s and crossed the i’s and the DMCA Notification submitted was incorrect. Either way, you want to contest it.

To do this, all you need to do is file a DMCA Counter-Notification to your web host. This is basically the same thing as a DMCA Notification except in reverse - the content was taken down mistakenly, you want it back up, and the other party is a prick and needs to buzz off.

Once you submit your DMCA Counter-Notification, your web host will be required to let the other party know and then - no sooner than 10 days later - re-instate your content or allow you to do so. The only way this can be stopped is if the complaining party files a lawsuit against you and/or receives an injunction to stop the content from being replaced. In other words, if there’s any truth to their claim you’re pretty much inviting a lawsuit.

Either way, as long as the web host does their part correctly they can wash their hands of it without fear of being sued (successfully, at least).

Both DMCA Notifications and DMCA Counter-Notifications are legal documents, meaning that you can be found guilty of perjury if you knowingly make false statements. This is meant to prevent you from using the DMCA Takedown/Reinstatement process to be malicious to the other party, silence criticism, etc. It usually works, sometimes not, but in any case you shouldn’t submit either of these documents unless you either consult with an intellectual property attorney first or have experience doing it.

Other Stuff

Copyright is distinct from other types of intellectual property law, and shouldn’t be confused with them.

• Trademarks
  First, copyright law is not the same as trademark law. Trademarks are a type of legal
  protection that apply to the names of products or entities in commerce. For
  example, “Microsoft” and “Windows” are trademarks belonging to (you guessed it)
  Microsoft. Trademarks are industry-specific, so you could probably, for example,
  run a condom-making company called “Microsoft” without getting in trouble - though
  you may not turn much of a profit.
• Patents
  Patents protect the expression of an idea, or a method of doing something, that is novel.
  This is supposed to allow for the free sharing of ideas while still allowing for patent-holders
  to be rewarded for their efforts. That’s the idea. In reality, patents are often abused: they
  are sometimes used as a revenue generator in the absence of actual compelling products, and many aren’t even especially novel.

It has been a few years since I went to E3, the biggest brou-ha-ha in the electronic entertainment industry. As the expo winds down, I’m thinking that I really should have went this time around. With 2/3rds of the “next generation” consoles coming before the end of the year, it is especially interesting this year to watch it all unfold.

My thoughts on the Big Three are as follows:

Sony - PlayStation 3

In a nutshell: Sony stepped in it.

It all has to do with pricing. The PlayStation 3 (PS3) will start at $500, with an upgraded bundle available for $600. The former option has a smaller hard-drive (20 GB instead of 60 GB), does not support wireless Internet connectivity, is missing HDMI support, and lacks Memory Stick, SD/Compact Flash I/O.

When this pricing structure was announced at the keynote, the audience was silent - and for good reason. $500 for a crippled console is absolutely insane. It doesn’t matter how good the graphics or sound will be or even how good the games are - if you have to ask your customers to take out a second mortgage to buy your console, you’ve priced it far too high. Granted, PS2/PS3 owners tend to skew a lot older than (say) the GameCube, but even adults have limits as to what they will spend on entertainment.

There are those, of course, who will pre-order this thing and pick it up on release. I, usually, would be one of those people - but right now Sony will need to show up with an impressive library of launch titles before I will consider it. Otherwise, I may very well wait for a price drop or two. My fear is that if a gaming geek with reasonable amounts of disposible income like myself is dissuaded by cost, the millions of Joe Blow gamers who determine the success of any console will shun it entirely. No gamers means no games. We very well could have another Neo Geo on our hands.

As for the console itself, well, in most respects it really is top notch hardware (at least the $600 version is). The graphics will probably outshine any other console, and - assuming that gamers aren’t scared away from the price - there will probably be a large selection of games to choose from.

While I welcome the return of the Dual Shock-style controller (I didn’t care much for that boomerang thing they showed off at last year’s E3), I am a bit underwhelmed by their attempt to copy the Wii. They added tilt control, but that is a far cry from what Nintendo’s Wii controller offers. They also took out any type of force feedback (”rumble”), which remains in the Wii controller and has been a staple in console gaming for years now.

Suffice to say, Sony’s presentation at E3 this year was not all that inspiring.

Microsoft - Xbox 360

Not being much of a fan of their console (or a Microsoft fan, for that matter), I didn’t really follow Xbox 360 related developments very closely. However, given the direction Sony is taking this time around it’s clear that I may have to re-think some things.

When the Xbox 360 debuted late last year, I was thoroughly disinterested. Sure, it was technically reasonably powerful and has a handful of good games for it, but it really just seemed like more of the same. Given its high price and Microsoft’s stumbling in getting the console out to consumers through the holiday season, I assumed that Microsoft had made a major misstep. Given Microsoft’s focus on the “hardcore” gamer mindset, it also didn’t help that the console itself wasn’t as powerful or feature rich as what the PS3 would have. Nintendo can get away with pushing gameplay over hardware power - having painted themselves into a corner through their own marketing, Microsoft and Sony can’t.

Before, I expected to see the Xbox 360 end up like the Dreamcast - a capable “generation and a half” console, released early but eventually forced to compete unsuccessfully against a true next generation alternative.

Now, though, it’s not clear that will be the case. Sony’s pricing makes the Xbox 360 seem like a bargain - and it’s likely that Microsoft will drop the price of their console some time before the PS3 is released, widening the gap. Sure, it’s not quite as powerful, but if Sony doesn’t attract mainstream gamers (and at their price-point, that’s a possibility) the 360’s library could be filled with a lot more titles - including more than a few exclusives.

Nintendo - Revolution… Revolution… Wii

Yes, I did spend an entire weblog entry a couple weeks ago bashing the new name of their console, the Wii (formerly Revolution). And yes, I still think that choosing something other than a synonym for urination would have made a lot more sense from a marketing perspective. What’s done is done, though, and if Nintendo Wii’d their bed they will just have to lie in it.

Now that I got that out of the way…

I think that the Wii itself is perhaps the most promising console this generation will have to offer. It’s true that it is graphically the least capable, won’t display output at high definition, etc. It’s also true that the number of games targeting the “hardcore” pimply-faced teenager crowd will be slim, as has long been the case with Nintendo’s consoles. Once you overlook these things, though, it becomes apparent that the Wii offers what will likely be the most fun gaming experience available.

For the most part, this revolves around the Wii controller (which everyone and their dog - myself included - is calling the “Wii-mote”).

Where you will touch your Wii

As you can see, the Wii controller is pretty much unlike anything else seen on a mainstream console. It has a standard cross-shaped digital control pad and some buttons, but is held more like a television remote control. It deviates in that it can ’sense’ where you are pointing it at the screen, and it includes 3-axis motion sensing. This means that you could use it to virtually swat at a tennis ball, aim and “shoot” things with it as if it were a gun, wield it as if it were a sword, etc. This allows for gameplay possibilities a lot more engaging than simply sitting in a chair and pushing buttons.

One interesting thing announced at E3 was that the Wii controller will include a speaker, allowing for a certain degree of aural feedback. Imagine hearing the sound of your virtual sword striking that of an opponent, a decaying “whoosh!” sound as you release an arrow from your virtual bow, etc. This is an interesting and novel concept for a controller, and it’ll be interesting to see what developers make of it.

The Wii-mote is expandable, too. A “nunchuk” add-on (pictured above) provides an additional tilt control and analog control stick to the mix. I could see this making first-person shooters a lot more fun. A light gun add-on is in the works, as is a special classic-style controller for games played on the Wii’s Virtual Console (more on that in a bit).

If you haven’t seen it already, check out the “Fresh Experiences” video on the official Wii web site. It definitely contains some over-the-top Nintendo marketing glitz, but it should still give you some idea how different the control scheme offered by the Wii-mote will be and how games will be able to use it.

Not much new came out of E3 about the Virtual Console, but I’m still excited about it. This will allow you to play classic games from Nintendo’s NES, SNES and N64 library (as well as games originally found on competitors’ consoles, such as Sega’s Sonic The Hedgehog series) and play them on the Wii. Such titles will be purchased and downloaded through the console, presumedly for a nominal fee. A special classic controller is in the works that will let you use a SNES-esque controller to play them. It’s my opinion that some of the best games were those classics released in the 80’s and early 90’s, and this will expose them to a whole new audience.

The new WiiConnect24 feature announced at the expo is that the Wii will receive periodic updates 24 hours a day, even when the console is powered off. It’s unclear what this will entail, but it has been suggested that new game content could be delivered while you sleep, allowing games to evolve over time.

The Upshot

As you can probably tell, I am most looking forward to the Wii at this point. This, even though it will likely feature the least impressive graphics and has a cringe-worthy name. It will also cost the least, but - as I see it - will deliver the most innovative gameplay of all the consoles. That’s not to say that I won’t get a PS3 (eventually), but Sony needs to do a lot in the next 6 months to make their console worth the hefty price tag.

…

I’ll be posting more thoughts on E3 soon, as there are some cool new games coming down the pipeline that I’m eagerly awaiting.