NET NEUTRALITY
What is it? What does it mean? And – most importantly – what does it mean if you own a small business?
http://www.copyblogger.com/net-neutrality-and-small-business/
HOW MUCH WILL THAT IMAGE COST TO USE? Maybe Nothing
I have often advised my clients of the need to investigate whether or not a license is needed in order to use images on a website or in any printed material. If a license is needed, it can be an unanticipated additional expense. However, not obtaining a license when it is needed can result in an unanticipated lawsuit. For example, Getty Images, the owner of over 150 million images, including many of the most famous archival news photos, is very aggressive in pursuing non-licensed users of its images. Getty often demands payment for past use in order to avoid the filing of a lawsuit.
So, last week’s news was quite remarkable: Getty announced that it will make approximately 35 million images available for use, without a fee, to online non-commercial users such as bloggers and tweeters. Such bloggers and tweeters will now be authorized to embed such images on blogs and tweets, similar to how YouTube allows videos to be used. The only caveat is that there must appear a Getty Images photo credit and a link to Getty’s website where viewers of the image can then elect to obtain a license to use it. The images may then be used for “editorial purposes,” meaning that the images would be used in connection with reporting or commentary of events that are newsworthy or of public interest. They cannot be used for advertising purposes.
Why did Getty take this action? They claim that “this will provide people with a simple and legal way to utilize content that respects creators’ rights, including the opportunity to generate licensing revenue.” They believe that allowing free access and dissemination of their images will generate brand awareness of Getty Images and, potentially, advertising revenue from the linked-to advertisers.
I think that it probably had more to do with two factors: one, as a practical matter, Getty was spending too much time and money pursuing all of these infringers and not recovering enough to justify the investment. Second, many bloggers and others using the images as part of a commentary, news report, etc. had claimed that such uses were allowed under the Fair Use Doctrine (see my blawg posts of February 20, 2013 and November 21, 2013 for a broader discussion of the Copyright Act’s Fair Use Doctrine).
Getty is still insisting that all commercial users of its images pay licenses fees; this new policy only applies to non-commercial users. Further, when users click on the required links that have to accompany the images, they may be taken to advertisements that generate revenue for Getty. Of course, commercial use licensees will have much broader rights to use the images—they can use them on multiple platforms, may edit the images and maintain copies of them on their servers—all things that the free users may not do.
WHEN CELEBRITIES GO BEGGING: What’s The Future of Crowdfunded Celebrity Film Projects?
It has been widely reported that shortly following its premiere at this year’s Sundance Film Festival, the distribution rights to writer/producer/director/actor Zach Braff’s latest film, Wish I Was Here, were purchased by Focus Features for $2.75 million.
What makes this noteworthy is that the film was funded substantially through Kickstarter. Apparently heeding the old entertainment industry adage to never put your own money into a film you are producing, Braff took to the crowdfunding site in April last year with an original goal of raising $2 million. For those not familiar with it, Kickstarter is the world’s largest crowdfunding platform. The company’s stated mission is to help bring creative projects to life. Since its launch, more than 5 million people have funded more than 50,000 creative projects, such as films, music, stage shows, comics, journalism, video games, and food-related projects. Normally, the people seeking funding are small, independent filmmakers—not established stars like Braff. Unlike traditional investments in film projects, people who back Kickstarter film projects do not receive an equity or debt stake in the funded films. Instead, they normally are offered small tokens (such as t-shirts, scripts, posters, etc.) and special experiences (such as attending a premiere or watching a live shoot) in exchange for their contributions.
Braff’s decision to pursue crowdfunding was an interesting one. He did receive funding offers from one or more studios prior to that time, but he claims that accepting such studio funding would have forced him to give up certain creative control of the movie. So, instead, he decided to use Kickstarter and he raised $3,105,473 from a total of 46,520 “backers.” The total film budget was around $5 million. In return, those backers (like those “investing” in all Kickstarter crowdfunded projects) were told that they would receive things such as t-shirts, posters, etc. (but no right to receive a share of the film’s profits).
A good deal of criticism has been leveled against Braff (who, as the star of the sitcom Scrubs, reportedly earned around $350,000 per episode) for not using his own wealth and connections to get the film project completed and, instead, taking “gift money” from the Kickstarter community. Some investors have claimed that it is “not fair” that they are not going to get to participate in the profits of the film, but they clearly are not legally entitled to such a cut of the profits. Still others have claimed not to have received their promised gifts yet. Not exactly the best way to generate a positive vibe with those who wrote checks to see the film made.
Braff has defended using Kickstarter to fund the film, saying that he did put “a lot of his own money into the film,” but mostly claiming it was the only way he could retain creative control. So, he got to make the film that he wanted to make AND he didn’t have to pay investors to do so. Not a bad deal.
For its part, Kickstarter had no problem with a famous, wealthy person using their site to crowdfund a film. Although this has not been the norm, and considering the negative reaction that has resulted regarding the Braff film, will other celebrities follow Braff’s lead and use the crowdfunding model?
HOW CANADA IS CUTTING ITS SPAM: Don’t Serve It Unless It Was Ordered
On July 1, 2014, the first of several phases of Canada’s sweeping new Anti-Spam Law (“CASL”) passed in 2010 will become effective after a long “phase in” period. CASL, while containing significant tools to combat bad spam and to make e-mail marketing more user-friendly and respectful, will require businesses and charities doing business in Canada to devote significant attention (and resources) to re-qualifying their procedures for e-mail communications.
CASL should be of keen interest to any organization, for profit or non-profit, that sends electronic messages (i.e., not just emails, but also text messages) to recipients in Canada in connection with a “commercial activity.” Anyone doing business with Canadian companies or residents, including American companies and organizations, will have to comply with CASL or face the consequences of failing to do so.
The first part of CASL aims to protect consumers from unsolicited electronic messages (which includes not only emails but also text messages) by giving consumers control over who can send them a commercial electronic message or business email. Primarily a law to counter spam, CASL will have a major impact on how businesses conduct operations and market their products in Canada. New rules for electronic communications will compel companies to review their current email practices and, most likely, require them to re-qualify their email customer/contact lists to make them compliant. Persons and businesses in violation of the new laws may face significant financial penalties.
The basic prohibition contained in CASL is against sending “commercial electronic messages” unless the recipient has consented to receiving the message and the message contains certain prescribed information, including the identity of the sender and the sender’s contact information, as well as the unsubscribe mechanism. What is considered “commercial” under CASL is very broad. It is defined to include “any offer to transact any product or service or an interest in land, offer an economic opportunity (including gambling) or to promote any of these activities.” The mechanism to unsubscribe from receiving emails has to remain operative for 60 days and an unsubscribe request must be acted on within 10 days.
Canada’s new law represents a significant and tougher stance against unsolicited commercial emails and is far more restrictive than the United States’ CAN-SPAM Act. The US law is an “opt-out” system. CAN-SPAM only applies to emails Under current US law, as long as an email header (i.e., the subject line) is not misleading, companies are allowed to send one unsolicited commercial email (i.e., SPAM) to a recipient, so long as the email message contains a link to allow the recipient to opt out of receiving future emails and the company then removes the recipient from their mailing lists if they opt out. Canada’s new system, on the other hand, is an “opt-in” system that will require prior to consent to receive emails or texts “in connection with a commercial activity,” subject to a proviso that “implied” consent may be used within specifically defined circumstances such as a contractual relationship with a recipient.
The CASL does include some exclusions and exemptions. For example, several broad categories of messages are excluded entirely from the CASL prohibition or, while governed by it, will have no consent requirement. Excluded entirely are messages between individuals having a family or other personal relationship and business-to-business inquiries or applications. A second category of messages will be required to comply with the required “content” provisions described above, but not the consent requirement. This category broadly includes commercial communications that have a consensual basis, specifically: providing a quote in response to a request, facilitating a commercial transaction, providing warranty, product recall or safety information about a purchased product, providing information regarding the ongoing use of a purchased product or service or an employment relationship, or delivering a product or service (including upgrades) for a previously purchased product or service, to which the purchaser is entitled.
One important group of electronic communications that is exempt from the consent requirement are those falling under the category of “implied consent.” The most important of these are communications relating to an “existing business relationship” or an “existing non-business relationship.” The term “implied consent” is defined to include only specified circumstances. In addition to the two categories just listed, it includes a person posting an e-mail address in effect inviting communications or providing an e-mail address to a sender with no indicated intent not to receive messages, provided that any message sent is relevant to the person’s business.
While the “implied consent” exemption may appear to be an easy “out” from having to comply with CASL’s opt-in requirements, the scope of the “implied consent” rule is limited by the explicit definitions given to the terms “existing business relationship” and “existing non-business relationship.” In both cases, the required element is either an existing commercial relationship (e.g., a recent product or service purchase or a written contract) or a non-commercial relationship (e.g., a gift or donation, volunteer work or membership in an organization).
So how does a company whose messages are not going to be exempted under CASL acquire the required opt-in consent? The request for consent must set out clearly the purposes for which it is sought and, in a prescribed manner, identity information of the requestor. CASL places the legal burden on the organization to prove that consent was, in fact, obtained.
The second phase of CASL will become effective on July 1, 2015. That phase will prohibit the unsolicited installation of computer programs or software, as well unauthorized interference with private electronic messages. This portion of CASL seeks to protect consumers from potentially damaging and deceptive electronic threats (such as identity theft, phishing and spyware) by allowing them to decide who is allowed to put computer programs on their electronic devices. The general rule is that express consent is required to interfere with a message or to download. Furthermore, if downloaded software will perform functions such as collecting the user’s personal information, changing settings already installed on a computer, or interfering with stored data, this fact must be described clearly, prominently, and separately apart from the license attached to the software. Downloading of certain computer programs, such as cookies, where it is reasonable to assume the user’s consent, as well as upgrades to existing programs that have been installed previously with the user’s consent, are deemed to have received express consent.
The third phase, which will become effective on July 1, 2017, pertains to a person’s right to commence an action in court in response to a violation of CASL.
Once CASL is fully phased in, the penalties for failing to comply with it will be significant. These penalties include: (i) monetary penalties in amounts of up to $1,000,000 for individuals and $10,000,000 for other entities; (ii) criminal penalties for obstructing an investigation; and (iii) a private right of action for persons suffering actual loss or damage as a result of non-compliance with CASL. With respect to both the violations and the criminal offences, directors and officers who authorized an organization’s non-compliance will be personally liable. Further, the private right of action (which does not exist for violations of the US CAN-SPAM Act) is significant and potentially far-reaching. It will be available to any individual or other person who has suffered damage as a result of non-compliance. While it will be necessary to prove actual damages, in certain cases it may be possible for a large class of individuals impacted by a violation to file a large and costly class action suit.
The bottom line is that CASL represents a significant change to existing Canadian law, and it should be considered carefully by anyone doing business in Canada.
MARY LOUISE KNUTSON: Modern Jazz Piano Master
In a previous blawg post (https://www.gurwinskeyboard.com/pandora-unlocking-the-music-genome-part-i/), I talked about how I have enjoyed utilizing Pandora’s music service to discover new artists previously unknown to me. One such artist is Mary Louise Knutson, a Minneapolis-based jazz pianist and composer. She has performed both as a solo artist and as the leader of her own fantastic trio, as well as with a “who’s who” of major jazz artists, including Dizzy Gillespie, Bobby McFerrin, Dianne Reeves, Kevin Mahogany, Randy Brecker, Bobby Shew, Nicholas Payton, Terell Stafford, Richie Cole, Greg Abate, Von Freeman, Slide Hampton, Mike Stern, Peter Erskine, Billy Hart, Ed Shaughnessy, and Richard Davis. As a show player, she has performed with such artists as Reba McEntire, Michael Bolton, Jordin Sparks, Trisha Yearwood, Sam Moore, Donny Osmond, Smoky Robinson, the Osmond Brothers, and comedians Phyllis Diller, Jack Carter, Rob Schneider, Kevin Nealan, Judy Tenuta, and more.
One of the great pleasures that I have as a professional jazz musician is getting to know and share ideas with other jazz musicians, particularly other jazz pianists. Almost without exception, they are willing to engage in creative dialogue and sharing. I have had the pleasure of getting to know Mary Louise a bit over the past month and, besides being an exceptional jazz musician, she is a warm and engaging personality. Her latest album, In the Bubble, is available on Amazon, CD Baby and iTunes. It is a great showcase of her considerable talents and I highly recommend it.
