Peter Burrows reported this week in Businessweek on the growth of content monitoring systems, which finally may be coming of age as huge content owners (such as the AP) begin to embrace them to locate use of their content online. (See Bloggers: Big Media Is Watching.)  

But why is the AP turning to companies like Attributor who promise to “Set your content free (and monetize it)?” Will content monitoring cause a chilling effect on the Internet as reviews, critiques, parodies and other fair uses are “monetized” by content owners?  Or will it simply allow the owners of registered copyrights to track use of their content and stop infringing uses of their content? Among the uses of Attributor’s software is the ability to automate DMCA takedown notices, which some large content owners have been accused of using inappropriately in the past.

Pricing information is unavailable on Attribtor’s site, but according to TechCrunch, the enterprise service costs anywhere from tens to hundreds of thousands of dollars per year, but a more limited self-serve version for smaller publishers could cost as little as $6 or $7 per month, and may launch this year.  The technology sounds promising for content owners wanting to obtain useful, automated information about how their content is used online, but for now, it looks like a tool for big players only.

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The Motion Picture Association of America on Friday stated that copyright owners should receive damages–up to $150,000 per copyright violation, without having to prove that any copying (such as downloads by other Kazaa users) took place.

“Mandating such proof could thus have the pernicious effect of depriving copyright owners of a practical remedy against massive copyright infringement in many instances,” MPAA attorney Marie L. van Uitert wrote Friday to the federal judge overseeing the Jammie Thomas trial.

Its an interesting concept that’s not really all that far out. Currently, copyright owners have an exclusive right to distribute their work. So if someone else distributes it, they are liable to the copyright owner for damages. The MPAA is arguing that “making available” for distribution, such as adding content to a shared folder on a P2P system is also a violation of the exclusive rights of copyright holders, regardless of whether any distribution occurs.

Impure thought versus outright wrongs? Intent to distribute? Our ethical and legal systems recognize intention to do acts and metes out penalties for these intentions, regardless of whether they are carried out. Its a concept that makes sense when the property that is being sold is just as intangible. Besides, getting proof is a lot of work.

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Because the United States is one of the few jurisdictions where a copyrighted work MUST be registered before it will be entitled to any protection, the 9th Circuit Court of Appeals ruled on June 11, 2008, that Section 412(2) bars an award of infringement for any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work (Derek Andrew, Inc. v. Poof Apparel Corporation (9th Cir. May June11, 2008) (No. 07-35048). This is the first time that the Ninth Circuit has addressed Section 412 in the context of post-registration infringement.

Plaintiff originally sued Poof for copyright infringement and obtained an award of $15,000 for copyright infringement and nearly $300,000 in attorneys fees. Poof Appealed. The Ninth Circuit reversed, holding that the purposes of the registration requirement of the statute is (1) “to provide copyright owners with an incentive to register their copyrights promptly; and (2) to “encourage potential infringers to check the Copyright Office’s database.”

The twist in this particular case is that Poof continued to infringe plaintiff’s copyrights even after plaintiff registered his copyright.

Moral of the story: if you want to use someone else’s content, wait approximately three months after publication to make sure they haven’t registered, then feel free to use it. Whenever possible, target small artists and authors who are unlikely to have registered copyright. You may ultimately have to pay some damages, but you won’t need to worry about those pesky attorneys’ fees and statutory damages.

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In an opinion and order issued on Monday, Southern District of New York Judge Sidney Stein found in favor of Premise Media and denied the Lennon clan a preliminary injunction prohibiting Premise from using a 15-second clip of John Lennon’s “Imagine” in their documentary on “intelligent design”.

Ono, Sean and Julian had sued Premise for the unauthorized use of the song.

Premise argued that the lyrics “nothing to kill or die for, and no religion too” was integral to the documentary, as it demonstrated many people’s belief that the world is better off without religion. Premise also argued that under the fair-use doctrine it has the right to comment on these lyrics.

Judge Stein agreed, noting that “the fair use of a copyrighted work for purposes of criticism and commentary is not an infringement of copyright.”

While no fan of “intelligent design” and a big fan of Lennon, I can’t help but agree that Judge Stein nailed this opinion. Setting out boundaries of fair use (discussed here and here) is key to helping society understand what is and what is not OK to “borrow” and/or “use.”

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