The MTTLR Blog

The lawsuit between rock artist Jackson Browne and Senator John McCain and the Republican Party was recently settled, and ordered dismissed on August 4, 2009, almost a year after the suit was filed by Browne.

Browne filed a lawsuit against McCain, the Republican National Committee, and the Ohio Republican Party over the unauthorized usage of Browne’s signature song “Running on Empty” in a commercial criticizing the energy policy of then-Democratic Presidential candidate Barack Obama.  The commercial, which aired on television and YouTube.com, featured parts of the sound recording of “Running on Empty” throughout.

The causes of action listed in Browne’s complaint, filed in U.S. District Court in California, included copyright infringement, trademark infringement, and violation of the California common law right of publicity.  The defendants’ motion to dismiss, relied, amongst other things, on a fair use defense against Browne’s copyright claims and a political speech exemption against the trademark claim.  The motion to dismiss was ultimately denied.

The lawsuit brought to light the clash between intellectual property rights and fair use as well as the First Amendment in the context of political speech, as political campaigns turn more and more to popular culture references in the media to reach out to voters.  McCain was also opposed by artists for his campaign’s use of popular music from the Foo Fighters, Heart, and John Mellencamp.  Even Obama ran into trouble during his campaign, when soul legend Sam Moore (of “Soul Man” fame) asked Obama to stop using one of his songs.

Monday, President Obama signed an executive order intended to foster stem-cell research, reversing the policies of the previous administration that limited research to existing stem-cell lines. Further Congressional action will be necessary to remove all federal restrictions on embryonic stem cell research, and recent scientific developments have made research on other types of stem cells more productive. Nevertheless, many commentators see this development as an indicator of a sea-change in scientific-political attitudes in the Executive branch, and expect that U.S. embryonic stem cell research is about to expand significantly.

One area of significant speculation seems to be the effect changes in federal funding policies will have on individual states. As Hilary Libka discussed in a recent MTTLR Blog post, some states have developed their own funding regimes for human embryonic stem cell research. Commentators seem to think that states with existing infrastructure may be particularly well-situated to put federal funds to good use. Although Michigan is not one of the states with an independent funding regime, Michigan voters relaxed state restrictions on embryonic stem cell research via a Constitutional referendum in November, and the state may be posed to take a leadership role in future developments. Researchers at the University of Michigan and Wayne State University announced Monday that they have research projects ready to get under way.

by: Adam Denhoff, Associate Editor, MTTLR

Image this is podcasting by Thomas Kamann. Used under a Creative Commons BY 2.0 license.

Internet radio broadcasters were given renewed hope of long-term stability when President Bush signed the Webcaster Settlement Act in October. The Act allows webcasters and record labels to continue negotiating for a reduced performance royalty rate while Congress is in recess, as it extends the deadline for a new deal to February 15, 2009. The issue stems from a March, 2007 decision by the Copyright Royalty Board (CRB), which would force webcasters to pay for each song streamed to each user at a retroactive rate as follows:

2006: $0.0008 per song, per listener
2007: $.0011
2008: $.0014
2009: $.0018
2010: $.0019

SoundExchange, the organization that represents artists and record labels, favors higher performance royalties because it believes that musicians deserve their fair share of Internet radio profits. The Digital Media Association (DiMA), a trade organization that represents a number of prominent webcasters including AOL Radio and Yahoo! Music, believes that the decision of the Copyright Royalty Board would bring about the end of Internet radio by forcing webcasters to pay outrageously high performance royalties at rates that they simply could not afford.

The Radio and Internet Newsletter (RAIN) calculates that, assuming the average Internet broadcasting station plays 16 songs per hour, a webcaster would have a royalty obligation of 1.28 cents per listener hour in 2006 (which would skyrocket almost three-fold by 2010). These royalties would only cover use of the sound recording, and webcasters also have to pay an additional fee to holders of copyrights in the composition. Using the CRB’s proposed royalty structure, it would be nearly impossible for an Internet radio station to remain profitable, and most, if not all webcasters would be forced out of business. Tim Westergren, the head of Pandora (one of the nation’s most popular Web radio services), believes that its royalty fees for this year could represent 70% of its projected $25 million dollar revenue. According to David Oxendide, a lawyer representing many smaller webcasters, CRB’s royalty structure would be a fatal blow to small and medium sized stations whose royalties would be between 100% and 300% of annual revenues.

Traditional radio broadcasters, like those represented by the National Association of Broadcasters (NAB), have seen web-based radio as a serious threat to their dominance. They lobbied against the Webcaster Settlement Act. However, they retracted their aggressive opposition to the Act when the negotiating deadline was extended to February 15; the extension will allow the NAB to negotiate its own performance royalty structure with SoundExchange. Today, terrestrial radio broadcasters pay licensing fees only, but SoundExchange is working to change that.

What does all this mean for Internet radio? Well, even SoundExchange acknowledges that the royalties in CRB’s model might be unworkably high. Nonetheless, SoundExchange officials complain that Internet radio stations have done too little to turn a profit from streaming music on the web. Webcasters counter by arguing that advertisers have yet to embrace Internet radio which makes it nearly impossible to get investment funding.

Although the music is industry is in shambles and record labels are desperate for new sources of revenue (i.e. performance royalties from online radio stations), perhaps biting the hand that feeds is not the right approach. A thriving source of online music is essential for the survival of the music industry. Surely record companies would prefer that new music be spread via web-based radio rather than on illegal file sharing networks? Introducing performance royalties into both the digital and terrestrial radio schemes makes sense; why should radio stations be required to compensate the songwriter, but not the performer or record label for use of copyrighted material? However, the Recording Industry Association of America, SoundExchange, and DiMA should negotiate a performance royalty rate that benefits all parties by ensuring that Internet radio lives on. The impossible-to-interpret “willing buyer, willing seller” model utilized by the CRB is not a transparent approach. The Webcaster Settlement Act, which allows the parties to negotiate further, is a step in the right direction.

by: Hilary J. Libka, Associate Editor, MTTLR

Stem Cell Petri Dish
by Hilary Libka.

Individual US states have been setting their own policies regarding human embryonic stem (hES) cell research – due to both the increased application of private and state money to hES cell research, and the federal government’s failure to change or expand its regulations and funding for this controversial science. While the majority of states restrict research on embryos, at least twelve states have now implemented public funding schemes for some type of stem cell research, and eight states permit or even channel funds specifically to hES cell research.¹ The states have organized funding through bond sales, the Tobacco Master Settlement Agreement, executive expenditures, and legislative appropriations.² Depending on the state and award, the funds are either directed toward particular research projects or infrastructure development at public and private institutions as well as non-profit and for-profit organizations.³

Public funding of stem cell research presents policy controversies that extend far beyond the science. Each state that participates must develop oversight for its investment and consider the potential outcomes of accelerating the market. One imminent issue that must be resolved is how the state should benefit from any intellectual property (IP) that may result from the funding.

The federal Bayh-Dole Act is one model states could look to for managing IP. The Act gives US universities, small businesses, and non-profit organizations the right to inventions developed through research funded by the federal government.⁴ The government keeps a nonexclusive license to the invention (among several other rights), but no royalties are collected.⁵ The biotech industry is pushing for this model at the state level.⁶ On the other end of the spectrum, consumer advocates argue for a public ownership model, where the state would retain the rights to any patents resulting from public funding.⁷ As a state that has been struggling with IP agreements, California is an important starting place to understand the complexities of benefit sharing in the realm of stem cell research funding.

Case Study: California

In November 2004, California became the largest source of funding for stem cell research in the world when voters passed Proposition 71 (a.k.a. the California Stem Cell Research and Cures Bond Act).⁸ The petition-driven initiative authorized the state to sell $3 billion in general obligation bond funds to be disbursed to in-state researchers over ten years.⁹ Up to $350 million may be paid out annually, and the funding is guaranteed by the state, which pays the principal and interest costs with bond sales for the first five years of the program, then with state income taxes and sales tax.¹⁰ Proposition 71 was incorporated as a politically-insulated state constitutional amendment: modifications are only possible with an unlikely 70% legislative majority and the governor’s signature.¹¹ High expectations are attached to the initiative, which was sold to voters on two points: (1) “Cures for California” and (2) economic benefits, such as IP revenues, reduced health care costs (state welfare programs and government employee benefits), and additional research activity (more jobs and taxable income).¹²
Proposition 71 established the California Institute for Regenerative Medicine (CIRM), a state oversight agency, to disburse funds to research organizations.¹³ CIRM is also charged with regulating state-funded stem cell research activities.¹⁴ This includes:

[E]stablish[ing] standards that require that all grants and loan awards be subject to intellectual property agreements that balance the opportunity of the State of California to benefit from the patents, royalties, and licenses that result from basic research, therapy development, and clinical trials with the need to assure that essential medical research is not unreasonably hindered by the intellectual property agreements.¹⁵

Although this provision stresses that California should benefit from resulting technologies, it fails to specify how the benefit sharing should take place. The generality is especially striking given the tendency of the legislation to delineate CIRM elements narrowly (sometimes too narrowly, as with the composition of the governing board and working groups, none of which included any legal experts).¹⁶ Initial uncertainty and qualms about transparency and accountability have slowed the process of developing IP standards.
Early lawsuits tried to overturn Proposition 71 by claiming CIRM was unconstitutional; complaints focused on CIRM’s validity as a public agency and its members’ affiliations with patient advocacy groups, biotech companies, and research institutions.¹⁷ A $150 million loan to CIRM from the governor kept the program afloat while the initial legal issues were resolved,¹⁸ but these “built-in conflicts of interest” continue to plague operations. Both pro- and anti-hES cell research advocates have raised ethical concerns, and in 2008, the state Controller audited CIRM’s grant approval process.¹⁹

Most recently and against steep odds, the state legislature successfully passed Senate Bill 1565, which called for a study of the governance structure of the program by the independent Milton Marks “Little Hoover” Commission on California State Government Organization and Economy.²⁰ SB 1565 also would have forced a ceiling on the price of drugs resulting from CIRM-funded research and required a plan from funded organizations that would make the drugs accessible to uninsured Californians.²¹ Although Governor Schwarzenegger vetoed the bill because of its restrictions on CIRM’s authority to adopt IP standards, the oversight commission has announced it will still proceed with its investigation.²²

In March 2008, after two years of research and debate, the CIRM governing board finally approved IP standards for the funding program.²³ Like the Bayh-Dole model, nonprofit organizations receiving public funds may retain their patents and must share net revenues with individual inventors.²⁴ But unlike the Bayh-Dole model, after a threshold amount of revenues and in proportion to CIRM’s support, the organization must pay 25% of its share to the state’s General Fund; the rest may only be used to support scientific research or education.²⁵ Meanwhile, for-profit organizations also keep their patents, but the state gets 25% of royalties on licenses after a threshold amount as well as a fraction (2-5% unless a blockbuster drug, which generates more than $250 million of revenue annually) of the revenues from any products commercialized by the organizations.²⁶ Furthermore, for-profit organizations must sell products at low prices to California’s discount prescription drug program.²⁷

And yet, even with these new explicit standards, the uncertainty persists. CIRM’s agenda for its latest IP meeting included, "Consideration of draft amendments to consolidate non-profit and for-profit intellectual property regulations and begin formal process of adoption."²⁸ CIRM has also been considering additional in-state discounts, and Californians, especially the state legislature, will continue considering CIRM. Although the state has been successful in attracting biotechnology,²⁹ “[CIRM] is still an unknown quantity, and that spooks the biotech industry.”³⁰ Several company executives and investors have been echoing the concerns of one general counsel: “We will take CIRM money last. We don’t want to be in a position where, years from now, we are actually forced to sell [our products] in California at a loss.”³¹

Moving Forward

The sheer dollar value of California’s funding continues to attract the stem cell industry despite uncertainty regarding public access requirements and other forms of benefit sharing. What about states thinking of or already implementing smaller stem cell research funds? Can they afford to promise a program that will “pay for itself,” followed by years of figuring out how to “pay back the taxpayers”?³²

IP revenues and restrictions are great selling points to taxpayers but terrible incentives for industry. The program is useless if it fails to attract participants. When it comes to access issues, which consumers should receive a discount? If beneficiaries of government programs and the uninsured are covered for new medical treatments, is that fair to the insured taxpayer whose insurance may not cover the treatment and whose rates will probably go up regardless of coverage? By what time do you have to start paying taxes in California to get the benefit of a new drug—before development, before clinical trials? Do you have to pay taxes to the state or even be a California resident? Medical tourism may benefit the state, but being the capital of social welfare probably will not.

As more states consider implementing public funds for stem cell research, the benefit sharing issues are going to be critical for collecting and maintaining public and industry confidence. Maybe the question California made a mistake in postponing when it passed Proposition 71 was not how, but whether the state should force benefit sharing at all. State stem cell research funding programs still have much to offer in terms of economic advantages and future medical breakthroughs, even if the state does not directly share in IP revenues. States should attempt to quantify and communicate expected revenues. Because funding states cannot foresee research outcomes (both treatments and revenues), it’s not an accurate measure to ask taxpayers how much they would pay to eliminate spinal cord injuries, cancer, or one of many other suggested targets. However, some taxpayers are interested in taking a shot at these cures, and it’s possible that the total value of the research to taxpayers may be much greater than any state’s investment.

by: Michael Schultz, Associate Editor, MTTLR

You (or your IT staff) may have been thankful to find that spam traffic has been a bit lighter in the last few weeks, after the recent shutdown of a major spam hub that, by some estimates, was responsible for as much as 75 percent of the world’s junk mail. You might have expected the company facilitating all of that spam – not to mention illegally gathered credit card information and child pornography – would have chosen to operate from the relative obscurity of an offshore hosting service. Instead, McColo Corporation set up shop in San Jose, California in a “top-level modern [...] IT center.” To be clear, McColo is merely the “virtual host” for those that are actually sending the spam; something akin to a landlord of an apartment building in which most, if not all, of the apartments are being used for illegal activity.

In an interesting twist, it wasn’t U.S. authorities that shut down the hub – instead the companies that provided internet connection for McColo decided to cut ties. This leaves open the possibility of McColo finding another internet provider – or the individual sites being hosted by McColo to disperse, making them harder to track and shut down. In fact, only two weeks after the shutdown, spam levels are reported to already be back to two-thirds of their previous levels.

Brian Krebs of the Washington Post, who is credited with the initial investigation and breaking the story, writes that “Multiple security researchers have recently published data naming McColo as the host for all of the top robot networks or "botnets," which are vast collections of hacked computers that are networked together to blast out spam or attack others online. These include SecureWorks, FireEye and ThreatExpert.” According to Mr. Krebs, “[what is] unclear is the extent to which McColo could be held legally responsible for the activities of the clients for whom it provides hosting services. There is no evidence that McColo has been charged with any crime, and these activities may not violate the law.”

So what is the law (and what should it be?) in this murky, seedy area of the internet? Below is a roundup of various links that may help to address that question:

FBI wants widespread monitoring of ‘illegal’ Internet activity
Illegal Internet Activity a Growing Concern for Enterprise Organizations
Using the Law to Address Illegal Activity on the Internet
Employer responsibility to report illegal activities established by Court
FBI Internet Crime Complaint Center

by Ryan Walden, MTTLR Associate Editor

Image I Voted? by Kenn Wilson. Used under a Creative Commons BY-NC 2.0 license.

Today’s voters are more likely than ever to read online blogs for political news and views, use candidate websites to examine their stances on the issues, and then make donations to their favored candidates online. Today’s voters are also more likely to cast their vote using an electronic voting machine, but not all consider that a welcome change. Just ask the plaintiffs in a New Jersey case challenging the use of electronic voting machines.

Last month, Andrew Appel, a computer science professor at Princeton, released a report of findings on the security of the Sequoia AVC Advantage voting machines (executive summary | pdf report). This report was submitted to the New Jersey Superior Court in support of the plaintiffs in Gusciora v. Corzine, a lawsuit alleging that the use of the AVC Advantage voting machines violates the state constitution’s guarantee to count every vote due to the possibility of fraud. The report finds that the machines, used in 18 of New Jersey’s 21 counties, can be hacked in as little as seven minutes by installing a new program into the computer to change vote totals. Appel demonstrates how the machines can be hacked in this (90 minute) video.

To combat possible fraud, Appel recommends voter verified paper trails, which would entail “an individual paper record of each vote cast, seen and verified by the voter at the time the vote is cast, collected in a ballot box so that it can be recounted by hand if necessary.” Voter verified paper trails is not a new idea – proposed legislation from Congressman Rush Holt (also of New Jersey) would mandate voter verified paper trails in federal elections. Even with voter verified paper trails, there must be a way to properly audit paper records to ensure no misconduct has occurred. The Brennan Center for Justice at NYU School of Law has released a report (pdf file) with recommendations for such audit mechanisms.

For their part, Sequoia Voting Systems, which makes the AVC Advantage voting machines, has rebutted the Appel report with a report of its own (pdf report | press release). Sequoia argues that the study was not conducted under real world settings, where detection of tampering is very likely. Sequoia also argues that the AVC Advantage machines were evaluated under “inappropriate standards” – noting that the Appel report’s assertion that the machines “must be correct in all circumstances” is an impossible standard to meet for any sort of voting system.

Ultimately, the arguments on both sides prompt the question: If we can’t have 100% accuracy, what level of inaccuracy is permissible? Sequoia is certainly right that no system will be correct in all circumstances, but if the Appel report is correct with regards to the sheer ease of changing votes, then that is not a sufficient rebuttal. Technology makes voting and counting votes easier, but it may also make voter fraud easier. Do the benefits outweigh the costs? A New York Times article notes that two-thirds of voters in the recent election were anticipated to vote by paper, with some states, including Florida, having switched back from electronic voting machines. Virginia and Maryland will switch back to paper ballots for the 2010 election. As for New Jersey? In light of this controversy, at least one Garden State political blogger suggests a decidedly un-21st century method of voting: through the U.S. Mail with an absentee ballot.

by Dororthy Eshelman, MTTLR Associate Editor

Introduction

Millions of viewers have tuned in to watch the presidential and vice-presidential candidates debate pressing issues before heading to the polls earlier this week.¹ A growing number of Americans, however, get their political information from online sources and search YouTube, political blogs and other non-traditional sources for debate coverage. In this most recent election, but even more so in those to come, the issue of who has what rights to use, remix, and distribute that content has been and will be an essential concern of participatory democracy. and upcoming elections.

Some networks have sought to encourage political participation and voter awareness by making their debate footage freely available to the public despite potential copyright violations.² But not all networks chose to make their debate footage available for widespread dissemination. Fox News was heavily criticized when it sent cease and desist notices to candidates using debate clips from the Fox-sponsored Republican primary events.³ Senator McCain, in particular, faced the brunt of Fox’s wrath when he aired a television ad entitled “Tied Up” that was approximately 30 seconds in length, most of which came from a Fox debate, as evidenced by the Fox logo clearly visible in the lower corner of the screen.⁴ Although Fox News claimed exclusive rights to the footage, Senator McCain argued that his use of the clip was within his fair use rights to his own statements during the debate.⁵ Since the issue was not litigated, but still is of primary importance for later debates, this post will discuss whether the “fair use” exception can be invoked to justify using both small and substantial portions of the debate in later reproductions.

Is Reproducing Copyrighted Debate Footage a “Fair Use”?

When confronted with legal action, Senator McCain argued that his use of the 30 second clip of Fox News footage constituted a fair use of copyrighted material as provided for in 17 U.S.C. §107. This section of the Copyright Act details the fair use limitations on exclusive copyrights, as determined by an analysis of four factors

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.”⁶

The fair use exception represents a balance between the copyright owner’s exclusive rights and the public’s interest in the wide availability of information that affects “areas of universal concern.”⁷

Where, as here, the “purpose and character of the use” is primarily political in nature, courts are inclined to classify it as a fair use. Important first amendment implications cannot guarantee a fair use defense, but “when an act of copying occurs in the course of a political, social or moral debate, the public interest in free expression is one factor favoring a finding of fair use.”⁸ Likewise, because the original work is political and made for the benefit of the public, the second prong also counsels in favor of fair use.⁹

Although the contested McCain advertisement used just a small portion of the Fox debate footage and so it would likely have no problems with the third and fourth prongs of the fair use guidelines, individuals that post more substantial portions of a debate may run afoul of those factors, as well. When the 11th Circuit evaluated whether the fair use defense allowed the duplication of entire news stories (albeit for commercial sale), the court concluded that the substantiality of the copied segment and the commercial purpose of the copy nullified the defense even though the news station did not “actively market copies of the news programs” for its own profit.¹⁰ Posting substantial portions of the copyrighted debates may be problematic if based only upon the fair use exception to the exclusive rights of the broadcasting networks.

The Public Domain as an Alternative to Fair Use

Because of the legal uncertainty over whether fair use protects candidates and the public when posting debate footage, a number of online activists across the political spectrum (including Professor Lessig of Stanford Law, Craig Newmark, founder of Craigslist and Jimmy Wales, founder of Wikipedia) are calling for networks to release their footage to the public domain.¹¹ According to this bi-partisan group, the presidential debates are held for the benefit of the public, and so “the right to speak about the debates ought to be ‘owned’ by the public.”¹² Since the candidates themselves largely control the terms under which they debate, Professor Lessig believes that they should take a more direct stand on the issue and insist that the networks release the debate footage.¹³ Although networks certainly have an interest in maintaining their copyrights to political debates, perhaps Professor Lessig is correct in his observation that “[c]opyright, in my view, is essential and important, in some places. This isn’t one."¹⁴

by: Nancy Sims, MTTLR Blog Editor

The McCain campaign’s visual themes (i.e. the Optimum typeface, his simple star logo) have drawn positive comments for the strength and military experience they convey. But many commentators agree that the Obama “O” logo is a radical political innovation: “probably the only political campaign logo to have a visual theme in it”, “[a] true logo, one that is recognizable apart from the candidate’s name” and “the first sophisticated corporate-style identity to emerge from presidential politics”, “signals by design that Obama has a different message”, “perhaps one of the few conceptual logos in the history of presidential elections”, “[c]learly not the old standards of years past.”A few have pointed out that the Bush 2004 campaign’s “W” logo was similarly identifiable, but it did not convey the same level of conceptual information.

The “O” logo has been criticized as derivative of other logos, (although the same criticism has been leveled with similar plausibility at the McCain logo.) For any number of possible reasons (its innovation, its visual impact, its simplicity, basic political demographics) the “O” logo has become a favorite new theme of makers, hackers, crafters and other habitues of the DIY/maker/remix culture. (In an attempt to keep this post politically neutral, I searched extensively for McCain remixes. The closest match I found were these commercially available McCain logo cookies.) Despite plausible copyright and trademark claims to the art and product-identifying use of the logo, unauthorized reinterpretations have rapidly proliferated.

(For all of the following examples, click the thumbnail to see the image in its original context.)

It’s popular in food (particularly cookies):

CC-licensed by-nc-sa
	CC-licensed by-nc-sa	CC-licensed by-nc

Knitters and other textile and fabric crafters have also interpreted the logo:

	CC-licensed by-nc-nd

Several artisans have made their own “O” products:

CC-licensed by-nc-nd

Finally, a few of the reinterpreted “O” logos defy categorization. They include:

The Penn State S-Zone is transformed into the O-Zone: CC-licensed by

A bicycle wheel is transformed into a glowing “O”:

A pregnant supporter displays her own “O” logo:

Additionally, the logo seems clearly a motivating factor for the Barack O-Lanterns of non-campaign-affiliated Yes We Carve and other Obama O’Lanterns.

It is interesting to note all the different claims people are making as to “ownership” of their logo-derivatives. A number of images are Creative Commons licensed, but with varying levels of control asserted (from the very loose “attribution” license, to the more restrictive “attribution-noncommercial-noderivatives” license.) Several of the images on Flickr also display the traditional “all rights reserved” language, but since this is the Flickr default, it doesn’t necessarily mean a great deal. The creators of both the necklace and the earrings have their derivative images for sale on craft website Etsy – almost certainly a commercial use, although the necklace maker claims to be donating to the Obama campaign with every sale.

In the midst of an intense political campaign, the Obama camp’s interests may, in many ways, be opposite from those of most trademark and copyright owners. It is in the campaign’s interest for the mark to be distributed widely. Although using the language of trademarks – the Obama website refers to the “‘O’ Logomark” – this distinctive image does not appear to have been registered with the PTO (a TESS search for “obama” yielded 38 results, none of which appeared to be for this image.) In fact, they make the image freely downloadable in a variety of formats from the campaign website.

Given the limited utility of the mark once the election is over, there is little incentive for the campaign to police others’ uses of the mark, be they positive or negative. Without anyone having directly dedicated the “O” mark to the public domain, it appears to have become de facto public property.