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Estate Of Sir Arthur Conan Doyle Alleges Copyright Infringement Over Sherlock's Emotional Awakening

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Let us do a little decuctive reasoning, shall we? Copyright law has a term length. While that term length has been extended to the point of near-bastardization, that copyright exists on a term at all leads any investigator to conclude that the makers of that law intended for copyright protections on a given work to come to an end. If distinct characters and settings are offered copyright protections, as they are, then it reasons that those, too, were intended to have those protections end after a prescribed period of time. And if Sherlock Holmes is a literary character, an assertion that cannot be doubted, then it stands to reason that the law as written intended for the copyright protections covering his character were also to end after a period of time.Therefore, all you Watson-esque readers witnessing my astounding logic, when the Estate of Sir Arthur Conan Doyle suggested back in 2013 in a lawsuit that the clock didn't start running as to when a character would enter the public domain until that character had ceased to be developed, the Estate's assertion clearly and undoubtedly runs afoul of the intention of those that crafted copyright law, since an author could simply forever-develop a character, and have him or her never enter the public domain! It's elementary!But not to the Conan Doyle Estate, apparently, which has sued Netflix over its forthcoming movie about Sherlock's sister, entitled Enola Holmes. In the suit itself, the estate points out in the previous court ruling that, while most of the Sherlock stories and characters are in the public domain, the remaining ten are not. Which is true! But the estate also argues that the Sherlock character is different in those last ten stories because he... wait for it... is more emotional. And, therefore, since the Sherlock character in Enola Holmes is also emotional... copyright infringement!

"After the stories that are now in the public domain, and before the Copyrighted Stories, the Great War happened," states the complaint. "In World War I Conan Doyle lost his eldest son, Arthur Alleyne Kingsley. Four months later he lost his brother, Brigadier-general Innes Doyle. When Conan Doyle came back to Holmes in the Copyrighted Stories between 1923 and 1927, it was no longer enough that the Holmes character was the most brilliant rational and analytical mind. Holmes needed to be human. The character needed to develop human connection and empathy."And so Sherlock "became warmer," continues the complaint, setting up the question of whether the development of feelings is something that can be protected by copyright and whether the alleged depiction of Sherlock in Enola Holmes is somehow derivative.
Imagine for a moment if this argument were allowed to win the day in court. Suddenly any author who managed to develop the characters in any series of novels would get never ending copyright on those characters. Luke Skywalker is suddenly a dick in Episode 8? New copyright term on his character. Harry Potter goes through puberty and gets romantic with his best friends little sister? Well, first, come on man, but also... new copyright term on his character!That isn't how any of this is supposed to work, of course. Again, it's quite obvious that the framers limited copyright to a term for a reason, and that reason was that works and characters that are protected by copyright are supposed to eventually end up in the public domain. Playing these games as to when a character that is otherwise in that public domain got some characteristic to end run around the term and still get copyright protection doesn't change that.If the court has any sense, this suit should find the garbage pail with the quickness.

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posted at: 12:00am on 09-Jul-2020
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Post No Evil: Content Moderation Decisions Are Always Trickier Than You Think

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Two years ago, we told anyone who wanted to understand the impossibility of content moderation to listen to an episode of the podcast/radio show Radiolab. Obviously, content moderation questions are back in the news again, and Radiolab recently re-released the episode with some updated content. Most of it is the same, but there's some more at the end to relate it to the latest news with the various attacks on social media coming from the president, the DOJ, and Congress.Once again, I cannot recommend anything more than listening to this entire discussion. It's full of great examples of the impossible nature of content moderation. And, it especially highlights why the various proposals brought forth by Congress that say that social media companies need to have explicit rules for what is and what is not allowed is simply not practical in the real world, where there are so many edge cases, and so many times where the policy needs to be adapted due to a new edge case. Here's just a little bit of the transcript to whet your appetite for the whole damn thing. It's an early example in the story, highlighting the difficulty of dealing with breast feeding pictures under its policy:

[NEWS CLIP: A social networking website is under fire for its policy on photos of women breastfeeding their children.]SIMON: Big time.STEPHANIE MUIR: 12,000 members participated, and the media requests started pouring in.[NEWS CLIP: The Facebook group called, "Hey Facebook: Breastfeeding is Not Obscene.]STEPHANIE MUIR: I did hundreds of interviews for print. Chicago Tribune, Miami Herald, Time Magazine, New York Times, Washington Post ...[ARCHIVE CLIP, Dr. Phil: You know, the internet is an interesting phenomenon.]STEPHANIE MUIR: ... Dr. Phil. It was a media storm. And eventually, perhaps as a result of our group and our efforts, Facebook was forced to get much more specific about their rules.SIMON: So for example, by then nudity was already not allowed on the site. But they had no definition for nudity. They just said no nudity. And so the Site Integrity Team, those 12 people at the time, they realized they had to start spelling out exactly what they meant.KATE KLONICK: Precisely. All of these people at Facebook were in charge of trying to define nudity.FACEBOOK EMPLOYEE: So I mean yeah, the first cut at it was visible male and female genitalia. And then visible female breasts. And then the question is well, okay, how much of a breast needs to be showing before it's nude? And the thing that we landed on was, if you could see essentially the nipple and areola, then that's nudity.SIMON: And it would have to be taken down. Which theoretically at least, would appease these protesters because, you know, now when a picture would pop up of a mother breastfeeding, as long as the child was blocking the view of the nipple and the areola, they could say, "Cool, no problem."KATE KLONICK: Then you start getting pictures that are women with just their babies on their chest with their breasts bare. Like, for example, maybe baby was sleeping on the chest of a bare-breasted woman and not actively breastfeeding.FACEBOOK EMPLOYEE: Okay, now what? Like, is this actually breastfeeding? No, it's actually not breastfeeding. The woman is just holding the baby and she has her top off.JAD: Yeah, but she was clearly just breastfeeding the baby.ROBERT: Well, maybe just before.SIMON: Well, I would say it's sort of like kicking a soccer ball. Like, a photo of someone who has just kicked a soccer ball, you can tell the ball is in the air, but there is no contact between the foot and the ball in that moment potentially. So although it is a photo of someone kicking a soccer ball, they are not, in fact, kicking the soccer ball in that photo.ROBERT: [laughs]JAD: [laughs] That's a good example.SIMON: And this became the procedure or the protocol or the approach for all of these things, was we have to base it purely on what we can see in the image.KATE KLONICK: And so they didn't allow that to stay up under the rules, because it could be too easily exploited for other types of content, like nudity or pornography.FACEBOOK EMPLOYEE: We got to the only way you could objectively say that the baby and the mother were engaged in breastfeeding is if the baby's lips were touching the woman's nipple.SIMON: So they included what you could call, like, an attachment clause. But as soon as they got that rule in place ...FACEBOOK EMPLOYEE: Like, you would see, you know, a 25-year-old woman and a teenage-looking boy, right? And, like, what the hell is going on there?KATE KLONICK: Oh, yeah. It gets really weird if you, like, start entering into, like, child age. And I wasn't even gonna bring that up because it's kind of gross.FACEBOOK EMPLOYEE: It's like breastfeeding porn.JAD: Is that a thing?ROBERT: Are there sites like that?SIMON: Apparently. And so this team, they realized they needed to have a nudity rule that allowed for breastfeeding but also had some kind of an age cap.FACEBOOK EMPLOYEE: So -- so then we were saying, "Okay. Once you've progressed past infancy, then we believe that it's inappropriate."SIMON: But then pictures would start popping up on their screen and they'd be like, "Wait. Is that an infant?" Like, where's the line between infant and toddler?FACEBOOK EMPLOYEE: And so the thing that we landed on was, if it looked like the child could walk on his or her own, then too old.SIMON: Big enough to walk? Too big to breastfeed.ROBERT: Oh, that could be 18 months.JAD: Yeah, that's like a year old in some cases.SIMON: Yeah. And, like, the World Health Organization recommends breastfeeding until, you know, like, 18 months or two years, which meant there were a lot of photos still being taken down.KATE KLONICK: Within days, we were continuing to hear reports from people that their photographs were still being targeted.SIMON: But ...[NEWS CLIP: Facebook did offer a statement saying ...]FACEBOOK EMPLOYEE: You know, that's where we're going to draw the line.
Suffice it to say, that is not, in fact, where Facebook drew the line. Indeed, just last year we wrote about the company still having issues with drawing the line around this particular issue.So if you want to talk intelligently about these issues, you should first listen to the Radiolab broadcast. It's only a little over an hour, and well worth your time:


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posted at: 12:00am on 09-Jul-2020
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Sci-Hub Downloads Boost Article Citations -- And Help Academic Publishers

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Techdirt readers know that Sci-Hub is a site offering free online access to a large proportion of all the scientific research papers that have been published -- at the time of writing, it claims to hold 82,605,245 of them. It's an incredible resource, used by millions around the world. Those include students whose institutions can't afford the often pricey journal subscriptions, but also many academics in well-funded universities, who do have institutional access to the papers. The latter group often prefer Sci-Hub because it provides what traditional academic publishers don't: rapid, frictionless access to the world's knowledge. Given that Sci-Hub does the job far better than most publishers, it's no wonder that the copyright industry wants to shut down the service, for example by getting related domains blocked, or encouraging the FBI to investigate Sci-Hub's founder, Alexandra Elbakyan, for alleged links to Russian intelligence.These legal battles are likely to continue for some time -- the copyright industry rarely gives up, even when its actions are ineffective or counterproductive. Academics don't care: ultimately what they want is for people to read -- and, crucially, to cite -- their work. So irrespective of the legal situation, an interesting question is: what effect do Sci-Hub downloads have on article citations? That's precisely what a new preprint, published on arXiv, seeks to answer. Here's the abstract:

Citations are often used as a metric of the impact of scientific publications. Here, we examine how the number of downloads from Sci-hub as well as various characteristics of publications and their authors predicts future citations. Using data from 12 leading journals in economics, consumer research, neuroscience, and multidisciplinary research, we found that articles downloaded from Sci-hub were cited 1.72 times more than papers not downloaded from Sci-hub and that the number of downloads from Sci-hub was a robust predictor of future citations.
The paper explains which journals were selected, and the various analytical approaches that were applied in order to obtain this result. In all, the researchers compared 4,646 articles that were downloaded from Sci-Hub to 4,015 from the same titles that were not downloaded. Assuming that those are representative, and that the statistical calculations are correct, the end result is important. It suggests that articles that are downloaded from Sci-Hub are nearly twice as likely to be cited as those that aren't -- a big boost that will doubtless be of great interest to academics, whose careers are greatly affected by how widely they are cited. It seems to confirm that Sci-Hub does indeed help spread knowledge, not just in terms of the free downloads it offers, but also by virtue of leading to more citations for downloaded papers, and thus a wider audience for them.The new paper notes a rather paradoxical implication of the result. Alongside Sci-Hub, which is happy to operate outside copyright law, there are alternatives like open access journals, and preprints, which are fully within it. However, as a result of Sci-Hub's ability to boost citations:
[it] may help preserve the current publishing system because the lack of access to publications, which preprints and open access journals are trying to solve, may no longer be felt so strongly to find required increasing support.
In other words, according to this latest analysis, it turns out that the copyright industry is attacking a site whose success might be seen as a reason for not changing the current academic publishing system.Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

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posted at: 12:00am on 08-Jul-2020
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Court Shoots Down AT&T, Comcast Attempt To Crush Maine Privacy Law

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Over at our Tech Policy Greenhouse, former FCC official and consumer advocate Gigi Sohn just got done discussing a landmark privacy case in Maine that hasn't been getting enough attention. The short version: back in 2017, the GOP killed some pretty modest FCC broadband privacy rules at the telecom lobby's behest. Despite a lot of whining from telecom giants, those rules weren't particularly onerous -- simply requiring that ISPs be transparent about what data they're collecting and who they're selling access to, while requiring that users opt in to the sharing of more sensitive financial data.Much like net neutrality, federal lobbying by telecom giants had an unintended impact: namely once the feds showed they were too corrupt and captured to protect consumers, states began passing their own laws (some good, some bad) in order to fill the consumer protection void. On both the privacy and net neutrality fronts, giant ISPs like AT&T and Comcast cried repeatedly about how this created a "discordant and fractured framework of state protections," hoping you'd ignore this was a problem the industry itself created by relentlessly attacking even the most modest federal guidelines.Last year, Maine passed one such privacy bill modeled after the discarded FCC rules. Again the focus was largely on requiring that ISPs be transparent about what data is collected and who is buying access to it, while requiring that users opt in to the share and sale of access to more sensitive data. It also banned ISPs from charging you more money just to opt out of snoopvertising, something AT&T has already experimented with. The law was not, as telecom giants and their dollar per holler allies have claimed, particularly onerous.Comcast and AT&T sued anyway in a bid to have the law thrown out before a broader trial. In short, ISP lawyers tried to argue that giving consumers control over their own data violates ISPs' First Amendment right to market goods and services. They also claimed that by passing a privacy law that specifically targeted telecom providers, the law is based on their status as a "speaker" and should be subject to "strict scrutiny" under the First Amendment, which requires a law to be "narrowly tailored to serve a compelling state interest." As Sohn noted, while the case didn't get a lot of attention, the precedent of a telecom industry win here would be terrible for future efforts to pass any kind of intelligent, industry-specific tailored privacy protections whatsoever:

"Should it accept [these arguments], it would set the stage for overturning any and all sector-specific privacy laws as unconstitutional "speaker-based" violations of the First Amendment. If that were the case, then federal and state laws regulating the privacy practices of, among others, hospitals, financial institutions, pharmacies, credit reporting agencies, and libraries would all fall. Maine alone has nearly a dozen sector-specific laws. Now multiply that by 51.
Things didn't quite work out as Comcast and AT&T had hoped. This week, a Maine court shot down AT&T and Comcast's attempt to have Maine's law trashed, ruling (pdf) in favor of Maine Attorney General Aaron Frey, who had argued that Maine's law "regulates a space Congress explicitly left open, and any conflict is a figment of Plaintiffs' imaginative pleading." In the ruling, Judge Lance Walker noted that Maine's privacy law can't conflict with federal guidelines, because the industry and government worked hand in hard to eliminate said guidelines:
"Congress's nullification of the ISP Privacy Order, therefore, creates no overarching federal policy, and enacts no scheme with which the Maine Privacy Statute can conflict."
In its net neutrality repeal (which gutted FCC oversight over ISPs), the FCC tried to include a provision banning states from protecting consumers. But courts so far haven't looked kindly upon that effort, noting that federal regulators can't abdicate their consumer protection authority, then tell states what to do. Walker again supported that position here. Walker also didn't seem to think much of the telecom industry's claim that the law violated their First Amendment rights:
"Plaintiffs' Motion simply fails to clarify how an ill-defined opt-in and opt-out regime would inhibit any protected First Amendment activity; for example, how it might chill them from preparing particular marketing materials for sale to customers. And, they have not begun to bear their burden to show the statute would be unconstitutional in "all of its applications," as they must for a facial challenge."
The case will now proceed to a full trial. But it's worth noting this is just one of several fronts where the telecom industry is lobbying to kill federal consumer protections, then arguing that states are prohibited from doing anything on their own. The industry wants to have its cake and eat it too; it's pushing for a world in which nobody anywhere would be able to hold natural, widely despised monopolies accountable for pretty much anything. Their arguments surrounding free speech are not made in good faith; they're a flimsy attempt to use the First Amendment to effectively eliminate any and all oversight of a sector with a thirty-year history of anti-competitive and often fraudulent behavior.So far, as we also saw when the net neutrality repeal tried to ban states from protecting consumers, this effort is not going particularly well. But as the courts are increasingly gutted and staffed with dutiful partisan bobbleheads, there's no guarantee that trend persists.

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posted at: 12:00am on 08-Jul-2020
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