The New York Times reports that RealNetworks has introduced an “authorized” version of “Scrabble by Mattel” to Facebook, in an effort to compete with the enormously popular Scrabulous. CNet is puzzled, in part because the “official” app is unavailable in the United States or Canada.

For those not yet hooked, Scrabulous has been providing a Facebook application that lets Facebook friends play the game of Scrabble online. If the game numbers increment sequentially, it has served more than 2 and a half million games, and claims 629,256 daily active users.

In January, BBC and others reported that the Scrabulous team and Facebook had received takedown demands from Hasbro and Mattel (the two companies divide worldwide rights to the Scrabble trademark). Months later, however, Scrabulous remains online, probably because the threats’ legal merits are murky: there are few rights to “a game” as such.

Three kinds of intellectual property might protect aspects of a game — patent, trademark, and copyright — but each has limits that leave plenty of room for imitators and emulators.

Over at Wired’s Threat Level blog, Kevin Poulsen reports on a new DMCA overreach: the U.S. Air Force complained (via outside counsel) (PDF) about his posting of their recruiting video. The post, Kevin says, was initially made at the Air Force’s invitation.

If the government created this work, then the DMCA claim is improper. Works of the U.S. government are not copyrightable. But the statute allows the government to receive copyright assignments, so if an independent contractor created the video, still available at the Air Force’s (non .mil) site, the government could meet that technical requisite of the DMCA.

The DMCA also requires that the notifier assert the posting was unauthorized. Poulsen’s article, however, says the Air Force sent Wired the ad and “thanked THREAT LEVEL for agreeing to run it.” That doesn’t quite square with the DMCA-required statement that the notice-sender “ha[s] a good faith belief that none of the materials or activities listed above has been authorized by the U.S. Air Force, its agents, or the law.”

Even if the Air Force’s DMCA claim is truthful, however, it’s still a policy overreach. Wired posted the video in order to report on government recruiting efforts; the video’s dissemination is part of that First-Amendment protected discussion, whether it happens on or off government websites. The DMCA makes it too easy to takedown first, think later.

I just got the latest issue of Craft Magazine, which, along with fun projects like “Hand-Sewn Free-Range Monsters,” contains my column on Craft and Copyright. I make the case that crafters should seek balanced copyright, since they find themselves on both sides of the aisle:

Your artistic works are copyrighted upon creation, as soon as they’re “fixed in a tangible medium of expression.” If you do nothing further, the law forbids others from copying that goes beyond fair use. Readers can’t take the patten and detailed descriptions you’ve posted and copy them verbatim, but can they make and sell the craft described? That depends on the copyright in the crafted object: a richly patterned sweater’s surface design could be copyright-protected, but its shape would not. Further, if you’ve published a pattern, readers probably get an implied license at least to make the craft from it. That means too, that when you’re on the other side, using someone else’s patterns, you’re free to take uncopyrightable methods and “useful articles,” but limited in taking full-blown expression.

Part two of “Crafting Laws” will follow in the next issue.

Earlier this month, comedy group The Richter Scales released a funny music video, “Here Comes Another Bubble.” The video showed a montage of Silicon Valley images over a sound-track adapted from Billy Joel’s “We Didn’t Start the Fire,” lampooning the Web 2.0 bubble that seems near bursting again. The video must have touched a nerve, as well as a funny bone, because it got wide linkage and discussion and became the week’s top-rated video.

Then, it was removed from YouTube, “due to a copyright claim by a third party.”

Photographer Lane Hartwell says she objected to use of her photograph of Valleywag’s Owen Thomas, so she sent a DMCA takedown notice to YouTube. Hartwell says she owns copyright in the image and did not license its use. In response, YouTube appears to have disabled the video pursuant to its copyright policy (perplexingly, it did not identify the “third party” sender of the complaint.)

Now, the video is back, in a revised version that omits Hartwell’s photograph.

To me, the original situation seems to lie near the blurry edge of copyright’s fair use exception. The Richter Scales would argue that their use was “transformative,” using the photograph to comment on the bubbly scene the photographer chose to depict; commentators on Silicon Valley foibles might be unable to get permission for photos used to skewer the establishment. Hartwell, by contrast, tells us that “Photography is my livelihood. It’s how I pay my bills. I’m not treating the band any differently than any other group that uses my work without my permission.” She sells or licenses her work to magazines and others who want to use photo illustrations, and sees no reason to treat the Richter Scales differently.

Is the momentary use of Hartwell’s photo an unfair substitute for something she should have had the right to license, or a fair use the law should license irrespective of the copyright holder’s wishes? I’d be inclined to find the use fair, as transformative commentary, but I couldn’t guarantee that a court would agree with me.

The DMCA harbors no such ambiguity, however. The moment someone claims an infringement, the law encourages the service provider to act “expeditiously” to remove the offending material. The strict penalties in copyright’s “property rule” nature support that response: One who can prove copyright infringement can often get both an injunction and stiff statutory damages. Acting individually, the parties might stand firm or be pushed by the costs of legal uncertainty to settle their differences, but the service provider in the middle changes the calculus.

The intermediary service provider rarely wants to risk outsize damages or get into negotiations with copyright claimants and small content-posters, and so tends to take down rather than face even a remote chance of liability. If, on the other hand, intermediaries’ secondary liability were limited as it is for defamation, content creators would be freer to make and defend fair use arguments. A liability rule or compulsory license, enforcing rights through payment rather than removal, could leave these items in the public view.

Absent copyright reform, we’re stuck with the likelihood that clever montages — which depend on pulling content from many sources — get popped even more quickly than tech bubbles.

Entertainment lobbyists have dumped a nasty trojan horse into the Higher Education bill scheduled for markup Wednesday in the House Committee on Education and Labor. On page 412 of the massive 747-page “College Opportunity and Affordability Act of 2007″ is a requirement that educational institutions spend their scarce resources to

develop a plan for offering alternatives to illegal downloading or peer-to-peer distribution of intellectual property as well as a plan to explore technology-based deterrents to prevent such illegal activity.

So even as the committee asserts it wants to “make college more affordable and accessible,” it frustrates that purpose by letting Hollywood-driven mandates suck money away from the educational mission of colleges and universities. While “encourag[ing] colleges to rein in price increases,” the bill would force campuses to spend money exploring broken anti peer-to-peer technologies that make their networks less useful. Colleges that don’t fall into line risk losing federal student aid.

“Technology-based deterrents” are bound to be both over- and under-inclusive: blocking true educational uses while failing to stop piracy. A school cannot screen or filter all its Internet traffic without seriously impeding network innovation and research. If the “deterrents” block unknown communications, they stop students from experimenting on an end-to-end network, blocking the development of lawful peer-to-peer applications in the mold of Skype, distributed search, or LOCKSS (Lots of Copies Keep Stuff Safe), a library archival system. If they block encrypted traffic, they compromise privacy and security. If they don’t, they’re trivially circumvented.

Finally, there’s no automated way to determine whether “unauthorized” uses are fair. Even were a technology to have perfect access to all Internet traffic for comparison against a corpus of works, it would not be able to incorporate the judge necessary to determine whether a given use were fair, transformative, educational, or merely substitutive and unfair.

Half-baked ideas like these have no place in an education bill. Rather than forcing schools to spend scarce resources on entertainment companies’ agendas, Hollywood should do its own homework, offering students enough compelling, compatible alternatives that they choose authorized access.

Meanwhile, you should call congress to keep this mess out of our schools. Educause provides a page of resources including committee member phone numbers.

Via BoingBoing, comes the account of a sports writer and avid fan who spent $280 to purchase video footage of Major League Baseball games, only to lose the ability to watch his purchases when MLB switched DRM providers.

As Allan Wood, who wrote a book on the 1918 Red Sox blogs tells it:

Since MLB started this download service, I have bought and downloaded 71 games — many of them from the Red Sox’s August-September 2004 hot streak — which works out to a total cost of $280.45 (plus the price of the blank discs). Thanks to MLB, I now have nearly six dozen coasters.

Calling MLB to inquire, he was told:

“MLB no longer supports the DDS system” that it once used and so any CDs with downloaded games on them “are no good. They will not work with the current system.”

Thus rather than supporting the fans who paid money to watch games, MLB is turning them away — and turning them off from purchasing future content. What you rip from your DVR is more useful, long-term, than what you can buy. And all DRM has this bug built-in — it’s protecting content against its end-users, and can as easily break with less functionality than the users paid for if its supporting infrastructure is pulled.

In the comments, thread, a poster points to the Fairuse4WM utility in the Doom9 forums, suggesting that purchasers can extract the video. Of course that seems perfectly reasonable, as they paid for the content and were promised it would remain accessible, but the good old DMCA makes it legally questionable — circumvention of a “technological measure that effectively controls access to a work protected [by copyright]” is forbidden by sec. 1201(a)(1). Don’t purchasers have “authorization”? That’s what DVD owners argue, unsuccessfully so far.

What about exemptions? The Copyright Office, in its 2006 rulemaking created an exemption from circumvention liability for those who circumvent “obsolete” technological protections — seemingly the case here — but it applies only to computer programs and video games. While telecast baseball might be a “video game,” it’d take some creative lawyering to squeeze into the exception for archival use and preservation.

Standing up for student privacy, the University of Oregon has refused to identify “alleged infringers” at record labels’ request. Unlike most universities, which have identified students, U of O recently moved to quash the labels’ discovery subpoena in Arista et al. v. Does 1-17. Ray Beckerman links the documents at Recording Industry vs The People. See also Associated Press.

The university argues in its brief that the subpoena imposes an undue burden on the university “because it requires the University to affirmatively investigate potential copyright infringement by its users.” Particularly on a campus, where a single IP address might be shared my multiple roommates, visitors, or users of an open access point, the IP address will not uniquely identify a person. The U of O doesn’t want to go net-fishing, as the record labels do, turning over student names that might match their complaint, but says it would have to “undertake an investigation of all the individuals who were or who may have been present in the shared rooms in question at the time of the alleged acts of copyright infringement,” including interviews and forensic investigations, in order to turn over the right names. Even where the university can find the occupant of a single room, that identifies only the occupant, “not the identity of the user engaged in the alleged copyright infringement.”

The university should not be forced to do the record labels’ investigations for them. As I’ve argued in The Crimson and at Cornell, this demand conflicts with the mission of a university. As Oregon puts it, “The University … has both a legal and an ethical obligation to ensure that its students’ right to privacy is protected under the law and defended against intrusion.”

While Oregon’s other arguments are weaker, this one is enough. The Federal Rules of Civil Procedure proscribe subpoenas that subject their recipients to “undue burden” and the University of Oregon demonstrates that complying thoroughly and responsibly with this subpoena would place severe and unjustified burden on the educational institution.

The Associated Press reports that presidential candidate John McCain has rejected Fox’s call to “cease and desist” from using Fox debate footage in a campaign ad.

Fox is apparently claiming infringement by the use of 18 seconds from a 90 minute debate, in which Sen. McCain is the speaker. Political argument, even in the heated sound-bite form of campaign ads, is at the core of First-Amendment protected speech. This kind of commentary use, of newsworthy material available only from Fox, suggests that not only McCain, but the general public should have greater access to debate footage.

Let’s hope this run-in with overreaching intellectual property demands inspires McCain to pursue IP balance beyond this one campaign ad.

If it’s fall, these must be cease-and-desists for Black Friday ads. This year, they seem to be coming earlier than ever, as Wal-Mart sends pre-notifications against future posting. I put my analysis into a Chilling Effects Weather Report

Meanwhile, Michael Geist has the low-down on the overbroad copyright demand (PDF) that has shuttered the International Music Score Library Project. Despite vetting all submitted music for public domain status in Canada, where he runs the site, the IMSLP operator got a complaint that he was making scores available to jurisdictions where they were still under copyright — talk about misusing disharmony. Let’s hope the library is back online soon.

Over at CNet, Jennifer Guevin discusses a report from the content-tracking company “Attributor,” asserting that “The next big copyright battle may be fought in the kitchen.”

Attributor collected all the original recipes that appear on Epicurious.com, Allrecipes.com and RachaelRay.com. The software then checked those recipes against what was available elsewhere on the Web, looking for what they call matches–or instances in which two recipes are similar enough to be possibly copyright infringing.

For the purposes of the study, Attributor researchers defined a match as any two recipes in which at least 50 percent of the content was identical. Then they looked more closely at the matches with low percentages of similarity and threw out those they thought couldn’t be considered clear cases of copyright infringement.

Based on the results, Attributor found that copying recipes online is “rampant,” said Rich Pearson, senior marketing director for the company. Attributor found just over 10,000 copies of recipes that originated on the three sites. In more than 60 percent of those cases, the reposted recipes weren’t attributed to their original sources.

What Attributor didn’t note, because its software can’t possibly tell the difference, is that not all copying is infringement. This is particularly true of recipes, where the guts — the proportions of ingredients and the steps for combining them — is a “process” unprotectable by copyright. While the creative description of the crisp crust and tart-sweet filling of the perfect apple pie might contain sufficient expression to claim protection, the steps for making the dessert are in the public domain.

So Attributor might well have found 50% identity of content between a pair of pages because they offered instruction for the same dish, without finding any copying of copyrightable text. Even the surrounding prose might be so minimally expressive as to merge with the ideas. How many ways can one say “bake until crust is golden”? The cooking-instruction industry seems to be stronger than ever, notwithstanding the lack of copyright protection.

The failure to distinguish between copying and copyright infringement is likely to plague another new roll-out, YouTube’s video identification filter as well. YouTube notes one side of the problem: “No matter how accurate the tools get, it is important to remember that no technology can tell legal from infringing material without the cooperation of the content owners themselves,” but the other side is that with or without technology, copyright owners often overstate their rights.

If Video ID offers a block every time it recognizes copyrighted music, for example, it may fail to distinguish between parodic remix and infringement; if it blocks video matches, will it distinguish between scientific discussion on An Inconvenient Truth and wholesale copying? Since automated filters will never be able to distinguish between fair use and infringement — a task even judges find difficult — adding them to the YouTube workflow will likely make multimedia parody, criticism, and remix more difficult.