If Google's Book Scanning Violates Copyright Law, What About The AP's Book Scanning?

from the hard-to-see-the-difference dept

Danny Sullivan does a great job calling out the hypocrisy of the Associated Press yet again. The organization, which has taken a very maximalist position on copyright, where fair use gets mostly ignored, apparently had no problem scanning Sarah Palin's entire book into a computer so that reporters could search it. Of course, this is no different than what Google is doing with its book scanning program (which, again, I still believe is a clear case of fair use). Yet, since the AP seems to take such a limited view on fair use (and has a habit of accusing Google of "stealing" content), it's amusing that it's now trying to defend its actions by claiming that it was legal because it was for the sake of journalism, and the scan wasn't for public consumption. Except, of course, Google's book scanning isn't for "public consumption" of the entire work either, but so people can do a search to find the relevant tidbit of info within the book. The AP's statement on the matter is laughable:

"The book, purchased several days ahead of its on-sale date by the AP, was scanned after the first spot stories moved on the wire from New York so that staffers in bureaus in Washington and Alaska with knowledge of various parts of Gov. Palin's life and political career could read those relevant sections the next day."

Yes, you can understand why they did it, and even why it seems reasonable. But that doesn't change the fact that it appears the AP made an unauthorized copy of the book, in violation of its own interpretation of copyright law. Funny how the law seems oh so different when it limits what you can do, than when it's about limiting what your competitors can do...

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If You Only Share A Tiny Bit Of A File Via BitTorrent, Is It Still Copyright Infringement?

from the depends-on-who-you-talk-to dept

We've mentioned the ongoing lawsuit against ISP iiNet in Australia a few times. Basically, the movie studios are pissed off at iiNet because it didn't do much in response to letters that were sent concerning IP addresses of those that the studios believed were sharing unauthorized works. As iiNet noted, however, it didn't see why it was involved in any of this:

They send us a list of IP addresses and say 'this IP address was involved in a breach on this date'. We look at that say 'well what do you want us to do with this? We can't release the person's details to you on the basis of an allegation and we can't go and kick the customer off on the basis of an allegation from someone else'. So we say 'you are alleging the person has broken the law; we're passing it to the police. Let them deal with it'.

The trial has been going on recently, and while I haven't been following the details that closely (figure it's worth waiting for the verdict), there was one interesting tidbit. As the company had suggested earlier, it's arguing that sharing a file via BitTorrent is arguably not copyright infringement at all. That's because of the way BitTorrent works, in breaking up any file into tiny components and sharing the individual pieces. A key element of copyright law is looking at how much of the content is shared. Down in Australia, they have a "fair dealing" exception to copyright law that appears to allow for copying small portions of a work, and some precedent of short video clips not being considered infringing.

While I would be quite surprised if this argument worked (even if it may be technically correct, it's so rare that judges pay attention to the technical aspects when it comes to copyright), I'm a bit surprised we haven't seen this argued elsewhere as well. Of course, if it does actually work, it will only turn the focus back towards the question of whether or not "making available" violates the distribution right of copyright, since that would cover what BitTorrent users were doing, if they offered up any unauthorized content (even if they actually shared only a tiny fraction).

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Essayist Writes Popular Essay... Then Sends 'Non-Negotiable' Invoice To Church Who Posts It Online

from the how-nice-of-her dept

We've seen recently how some companies have turned copyright into something that certainly approximates a tool for extortion. Rather than threatening to break up your store with a baseball bat, they threaten to sue you if you don't pay them for infringing on their copyrights. Even in the cases where the copyright has been infringed, this whole process seems incredibly sleazy and underhanded -- and it's even worse when it's done against those who are clearly "accidental" or "unaware" infringers. Or you can take it even further: using this method to demand a non-negotiable payment from a church.

Reader Sam Cook writes in to let us know how a woman named Linda Amstutz is going around threatening pretty much anyone who posts her essay/poem called "If my body were a car." It's apparently one of those essays that gets regularly passed around the internet -- often without attribution. While you can understand why the author might get a bit upset about it getting passed around without attribution, it appears that Amstutz has taken it to another level. She could alert those who are posting it with the evidence that she's the author and ask, nicely, for proper attribution. She could also then use that fame and celebrity to get other commissioned writing projects, or maybe a book.

But no. She just sends them bills.

She (or, rather, her "literary agent" Mary Taylor Smith) sends nasty letters to people demanding immediate payment of $750, significantly more than anyone would ever pay for such reprint rights -- using the fact that statutory copyright infringement violations have a $750/infringement starting point (which, we already know is ridiculous). Of course, Taylor Smith never seems to suggest that anyone might have a fair use exemption. She just sends the letter and an invoice demanding payment.

A couple years ago, the well-known author Orson Scott Card found out about Amstutz and Taylor Smith's effort to abuse copyright law, and wrote up a blog post that pretty accurately described the picture. He notes that those who are posting the essay are almost certainly infringing on the copyright, but that's no excuse for Amstutz's actions, whom he refers to as "a moderately talented but extremely greedy, litigious, and self-righteous author:"

Now, her essay was originally published in Ozark Senior Living magazine. You can bet that she did not receive $750 for first publication. She may not have been paid at all.

Furthermore, $750 is a ridiculously high price for reprint rights for essays. I have stories reprinted all the time -- sometimes award-winning stories twenty times the length of "If My Body Were a Car," and for which I was originally paid many times $750. But the reprint rights usually go for $300 or less, and that's fair.

Besides the money, you see, I get to have that story out there collecting new readers for me...

The web is full of people who don't understand that websites are publications. Nobody gave them a course in copyright law before they put stuff up online. Most of them are decent folks who, as soon as someone tells them they're doing something wrong, will immediately correct their error.

But Amstutz is not interested in understanding human failings. Instead, she has seized upon a means of terrifying people into paying her ridiculous amounts of money.

It's as if you went into a store, inadvertently broke a vase worth $75, only to find that the store manager is going to make you pay $750 on the spot, or else you'll be hauled off to jail for vandalism and fined $30,000.

Yep. $30,000. Because that's what Mary Taylor Smith, Amstutz's agent, misleadingly tells you you'll have to pay. Here's her exact language: "The minimum damages for copyright infringement in a court of law is $750 and is punishable up to $30,000, plus attorney fees and court costs."

Yes, but that $30,000 is a maximum. There is zero chance that a rational court would charge a mom-and-pop non-profit website anywhere near that amount for infringing the copyright of a piece of writing that probably earned $100 or less on first publication. Especially when they took the essay down the moment they realized it was a copyright infringement.

Amstutz also has a rather obnoxious webpage up about this topic, saying that she's building a list of all the people who refused to pay and will soon sue them all (at which point she'll also "rescind" the invoice for $750, and try to get much more in court. She also has a "lesson" in copyright which gets a lot of the details wrong (she calls infringing stealing, makes no mention of fair use at all, and says you can never use someone else's words without permission, etc.)

Card points out that this does, indeed, feel like extortion, even if it is infringement:

Amstutz brags about just how much money she intends to extort from anyone who trips over her essay.

Because that's what it seems like to me: extortion. Yes, republishing her essay is an infringement of copyright. But most people who do it are ignorant of what they're doing. Amstutz preys on these people, hovering to see who falls into the trap, and then threatening them and bullying them to pay her far more than the reprint rights are worth, under threat of maximum fines they would never have to pay.

There are plenty of people like this in the world -- vultures who prey on people who make mistakes. I'll wager that Amstutz makes far more money from legal extortion than she makes as a writer. She has left writing far behind. Now she's just a bully, like a big kid threatening little kids so they'll turn over their lunch money.

Card, as he did when JK Rowling started bullying the author of the Harry Potter Lexicon, points out how unoriginal the idea of Amstutz essay is in the first place. He points out that plenty of others have written similar things. While he says, correctly, that this doesn't change the fact that her specific expression is covered by copyright, it does raise questions about why Amstutz thinks her work is so special. His suggested solution: stop posting or forwarding her writings and return her "to obscurity where she belongs."

Finally, he shows how an author should respond to such flattery, by granting everyone the right to forward his works online, as long as they properly credit it. He does ask that people ask permission to repost his essays, but says he'll often grant the right, free of charge with little hassle.

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We See Your 'Copyright Contributes $1.5 Trillion' And Raise You 'Fair Use Contributes $2.2 Trillion'

from the pointless-numbers dept

The copyright industry lobbyists absolutely love to throw around the bogus and debunked stat that copyright contributes $1.52 trillion to the economy. That number is derived by taking any business that kinda sorta maybe touches copyright (including things like furniture and jewelry) and then assuming that all of the revenue they make is entirely due to copyright. Yes, that's ridiculous. But, if the copyright lobbyists are going to use such bogus methodology to push their agenda, it seems only fair for those on the other side to use the same methodology. Last week, we wrote about a biased editorial by two newspaper industry lawyers in the WSJ (who failed to note the conflicts of interest), claiming that Google violated copyright law, and attacked the concept of fair use.

In response, Ed Black, from the Computer & Communications Industry Association wrote a letter to the editor highlighting those lawyers factual mistakes as well as the importance of fair use throughout the industry (thanks to Yano for sending this in). Most of the (short) letter discusses all the wonderful things that fair use allows, and then has this wonderful line at the end:

Businesses dependent upon exceptions to copyright contribute $2.2 trillion to the U.S. economy. They are responsible for one in eight jobs, for a total payroll of $1.2 trillion in 2006. Fair use is serious business; it is the glue that holds the Internet and new technology together. It is worth protecting.

This is fantastic. Of course, the number is just as bogus as the $1.52 trillion used by copyright maximalists, but I think that if they're going to use their methodology to make such ridiculous claims, it's only fair to do the same for the contributions to the economy of exceptions to copyright, and as the CCIA clearly demonstrates, the businesses that rely on weaker copyright contribute significantly more to the economy than those that rely on copyright. Thus, by the copyright maximalists own logic (and numbers), shouldn't we be fighting to expand the exceptions to copyright law?

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Poet's Son Says No One Can Quote Father Without Paying Up... Even Academic Dissertations...

from the uh,-that's-not-how-it-works,-son dept

crcb alerts us to the bizarre situation where the son (and heir to the copyrights) of poet Louis Zukofsky isn't just brandishing the copyrights against those trying to republish his works, but he seems to be demanding fees from anyone quoting his father or writing about him -- even academic dissertations. It doesn't appear as if Paul is doing this to protect a legacy or anything (if anything, it sounds like he's not a fan of his father), but he does want cold hard cash:

"I hardly give a damn what is said about my father (I am far more protective of my mother) as long as the name is spelled properly, and the fees are paid."

The full copyright notice is quite a doozy, where the son basically seems to think copyright law means he alone gets to determine what is acceptable and what is not -- and, for the most part, his view is that he doesn't want you ever quoting or discussing his father, but if you must, then he wants money. He also seems to think that fair use is as he defines it, rather than what the law actually says.

All Louis and Celia Zukofsky is still copyright, and will remain so for many many years. I own all of these copyrights, and they are my property, and I insist upon deriving income from that property. For those of you convinced that LZ would find my stance abhorrent, the truth is that he kept all copyrights (initially in his name) as he had the rather absurd idea that said copyrights would be sufficient to allow for the economic survival of my mother, and their son. My stance is congruent with that hope.

Despite what you may have been told, you may not use LZ's words as you see fit, as if you owned them, while you hide behind the rubric of "fair use". "Fair use" is a very-broadly defined doctrine, of which I take a very narrow interpretation, and I expect my views to be respected. We can therefore either more or less amicably work out the fees that I demand; you can remove all quotation; or we can turn the matter over to lawyers, this last solution being the worst of the three, but one which I will use if I need to enforce my rights.

Except that, no, fair use is somewhat broadly defined under the law, and just because Paul wants it narrowly defined, it does not follow that this is the case. As Paul's father, Louis Zukofsky once wrote: "The best way to find out about poetry is to read the poems." Apparently, Paul would like to make that a lot more difficult and a lot more expensive. And, yes, Paul, quoting that was fair use.

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New Google Book Settlement Tries To Appease Worries

from the doesn't-really-change-much dept

Late (very late) Friday, Google and groups representing publishers and authors squeaked in just under the deadline and put forth a revised Book Scanning settlement agreement, designed to address at least some of the concerns and complaints raised by people over the last one. If you want a good breakdown over the changes, check out Danny Sullivan's analysis or James Grimmelmann's. Not surprisingly, the Open Book Alliance is not happy, but seeing as it's a bunch of Google competitors, they were never going to be happy in the first place (and you know that press release was probably 95% written before the actual new terms were released).

In my mind, the biggest news is the new restrictions on countries from which it will scan books. From now on, the book scanning project will only scan books that have registered copyrights in the US, UK, Australia or Canada. This was mainly to address ridiculous concerns by some in Europe that this project -- to help make all books more accessible -- was somehow a threat to European culture. I was in Europe on Friday (well, Saturday there) when the announcement was made, and it actually pissed off the folks I talked to about it -- who felt that their politicians were doing serious harm to European books by having them excluded from such a useful resource.

Separately, a lot of the focus on this new agreement, as with the old agreement, is over how Google treats orphan works. Again, I have to admit that I think most people are making a much bigger deal of this than it warrants. The orphan works stuff really covers a very small number of works. And giving rightsholders ten years to claim their rights seems more than adequate to me. I just don't see what the big deal is here. The real issue is that we have orphan works at all. Under the old (more sensible) copyright regime, you actually had to proactively declare your copyright interest. The only reason we have orphan works at all is that we got rid of such a system in the ongoing effort of copyright maximalists to wipe out the public domain.

Anyway, I think this is all something of a sideshow. I still stand by my original feeling towards the settlement, which is that I'm upset anyone felt it was necessary at all. Google had a strong fair use claim that I would have liked to have seen taken all the way through the courts. And, of course, this settlement really has nothing at all to do with the main issue of the lawsuit (that fair use question) and is really a debate over a separate issue: how to take the books Google scans and trying to turn them into a "book store" rather than more of a "library." And, in doing so, the important fair use question gets completely buried -- which I find unfortunate.

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Newspaper Industry Lawyers Attack Fair Use, Claim Google Is Illegal

from the and-so-it-begins dept

Hmm. So, on Monday Rupert Murdoch suggests that the courts would reject fair use as a concept, and by Friday two newspaper industry lawyers just happen to have an op-ed piece in the Wall Street Journal explaining how Google violates copyright law by caching the websites it indexes. If the names of the lawyers -- Bruce W. Sanford and Bruce D. Brown -- sound vaguely familiar, that's because they're the same two lawyers who, six months ago, wrote a laughably ridiculous editorial (that time for the Washington Post) proposing special new copyright laws to save newspapers, while destroying pretty much everything that makes the internet useful. Of course, both the Washington Post and the WSJ conveniently left out the fact that these two lawyers regularly represent newspapers and other media and entertainment firms -- even as that seems rather relevant (what happened to those FTC disclosure laws?).

While I do actually agree with the lawyers that it's a shame the focus on the Google Book Search settlement avoided the big fair use question, I think they're entirely wrong to suggest that Google itself violates copyright law.

The copyright code allows public libraries to copy texts as long as there is no "direct or indirect commercial advantage." But that does not describe what search engines do. They use the complete copies they take for free to sell the advertising that has made them enormously profitable. This has a direct impact on book publishers, and on the publishers of magazines and newspapers that are losing the advertising that once supported them. According to Ken Auletta's recently released book "Googled," its search business alone now takes in 40% of all advertising across the Internet.

Perhaps Sanford and Brown are unfamiliar with basic copyright law, but the commercial advantage issue is only a small part of copyright law, and there are plenty of well-established cases of fair use in commercial use. In fact, I'd suggest that they consult the very media companies they work for, as most of them regularly rely on fair use defenses for reprinting or broadcasting content -- despite the fact that they're very commercial entities.

Furthermore, it appears that Sanford and Brown are either unfamiliar with how Google works -- or are purposely misrepresenting it. In the case of most news stories, Google has little or no ads. It only recently put ads on Google News -- long after the decline in ad revenue for newspapers. Besides, if local advertisers are finding a better return by advertising on Google, isn't that a good thing? That's called competition, and I'm surprised these lawyers would be against that.

In the last year, many fresh ideas have begun to circulate on how to help the publishing industry transition profitably to the online world. But without legal reform to back up these new business models, publishers will not have the bargaining power to make the search engines into true partners willing to compensate them meaningfully for their copyrights.

Yes, proposals like the ones that you guys suggested in the Washington Post without disclosing who pays your bills? Funny how that works. And those proposals are not about "helping the publishing industry transition profitably." Plenty of smart publishers are perfectly profitable. The proposals are about protecting the status quo and hurting the innovators who better serve the market. Sanford and Baker are trying to protect their big clients, but they'd be better off telling them to innovate, rather than push bogus editorials and pass ridiculous laws designed to hold back progress.

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A Look At All The Sites Owned By Rupert Murdoch That 'Steal' Content

from the who-ya-gonna-block-now,-rupert? dept

As Rupert Murdoch talks about how he wants to cut off Google, while claiming that aggregator sites are "parasites" and "stealing" from him -- and that fair use would likely be barred by the courts, it seemed like a good time to examine at least some of the sites that are owned by Rupert Murdoch that appear to aggregate content from other sites and which rely on the very same fair use argument. We've mentioned a few in the past, but figured it wouldn't hurt to explore them more thoroughly.

Well, let's start with the flagship Wall Street Journal itself. It integrates its own "aggregator" with headlines and links to other stories. For example, on the WSJ's tech news page if you scroll down, you'll find a bunch of headlines and links to other sources -- without permission:

Oops. Looks like the WSJ is "parasiting" and "stealing" according to Murdoch. Perhaps he should cut them of too.

Okay, how about Fox News itself? Yup. It's got an aggregator as well. Here's its Politics Buzztracker that aggregates and links to stories from a variety of different publications, including the NY Times, the Washington Post, MSNBC and others: Murdoch can't be too happy about all that thieving.

Then we've got the folks over at AllThingsD, who I actually think do excellent work, and who have built up a nice part of their site called "Voices." I actually quite like this and find it useful (and yes, every so often, they are kind enough to "parasite" one of my posts). In fact, it helps keep AllThingsD in my RSS reader because it's so useful. But, damn, if that doesn't look just like what Murdoch is complaining about. Not only does it have headlines, but also a fair bit of intro text (no summary, no commentary) and even the links are hidden at the bottom, rather than using the headlines as links: Of course, it's not just with news either. The folks at AlarmClock remind us that Murdoch's News Corp. owns IGN, which has a variety of properties, including the ever popular RottenTomatoes movie review aggregation site. Yes, the entire site is based on "parasiting" (according to Murdoch) movie reviews off of every other site, and pulling them all together: Good thing Murdoch is planning on working on ways to get the court to ban that sort of "fair use."

Some other IGN sites don't quite have aggregators, but I do find it interesting that they've integrated in Google search, such that you could do searches for things across the web and have them remain in a totally News Corp./IGN-branded experience. Effectively, on these pages, Murdoch's own properties are able to "parasite" back Google's own "parasite" engine. Here are two examples:

I'm sure there are probably more examples of various News Corp. properties regularly doing exactly what Murdoch and other News Corp. execs are now decrying as illegal and which must be stopped. So, it has to be asked, Mr. Murdoch, will you pull down all of these sites?

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Murdoch Says Fair Use Can Be Barred By Courts; Will Probably Remove Sites From Google

from the suicide-squeeze dept

And we thought that perhaps -- just perhaps -- Rupert Murdoch was coming to his senses with the plan to delay putting up a paywall. Turns out that may have been wishful thinking. Mathew Ingram alerts us to the news that Murodch has suggested that News Corp. might actually remove its sites from Google. Of course, I won't actually believe it until it happens, but he has had his minions going around slamming Google even as News Corp. offers its own aggregators. But actually following through and removing News Corp's sites from Google would be a huge step to take -- though one right off the side of a big cliff. Still, I'm sure it would make for a fun case study.

In the meantime, his explanation is really quite stunning. He claims that he believes fair use is a concept that the courts will reject:

"There's a doctrine called fair use, which we believe to be challenged in the courts and would bar it altogether..."

Wow. Of course, if that's true, then (again) we need to point out that News Corp. has been making use of fair use for years with its own aggregators. In fact, most news organizations regularly make use of fair use. Perhaps News Corps' lawyers who work in their news divisions might want to sit Murdoch down and explain the importance of fair use from a reporting perspective. They might also want to point him to the history of fair use within copyright law, in case he thinks it's something that was just made up yesterday.

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Australian Radio Program On 'Piracy' What 60 Minutes Should Have Done

from the you-mean-actually-have-facts? dept

On Monday, we wrote about that that ridiculous attempt by 60 Minutes to do a story about movie piracy that was basically one long press release for the MPAA's position. Facts weren't checked, and the reporter, Leslie Stahl, didn't bother to push back on a single claim made by any of the (all industry insider) guests. However, Boing Boing points us to a "radio documentary" on piracy that was done on Australian radio the very same day as the 60 Minutes episode aired. You may notice a major difference in that the Australian radio folks actually looked at the facts, invited on people who could refute industry claims, and actually pushed back on claims by the industry:

Adrianne Pecotic (from anti-piracy group AFACT): The fact that there is a level of illegitimate consumption of film and television is something that detracts from the revenue that could go back into the industry and could go back into supporting local video stores, local cinemas and online distribution. Theft is not justified because someone is being successful, and that's a really important point in this debate.

Oscar McLaren (radio host): But it does seem strange that I mean, we're told in quite apocalyptic terms often that the video industry and the film industry is really starting to hurt. I don't imagine many people would actually be aware that the revenues are in fact going up quite steadily and have been for the past decade or so.

Adrianne Pecotic: I think the important thing about the losses that are being suffered by the film industry through piracy, is that individual investors in individual films rely on that investment in that particular film, for that film maker, or that investor as their entire revenue. If you're looking at the analysis across the board of the whole industry and whether it is going up or whether more people are consuming films or less people are consuming films, you're not asking the question of whether a particular film has had the opportunity to recoup its proper revenue.

Oscar McLaren: For the record, box office sales were also at all-time high levels last year, reaching nearly $1-billion.

The program also pushed back against the repeated claim that a download is no different than shoplifting:

Oscar McLaren: But many lawyers in the debate argue that stealing a physical object is very different to breaching intellectual property laws....

Jessica Litman: The difference between a song and a cookie is if I eat a cookie, then you can't have it because I've eaten it, it's gone. But if I listen to a song, you can listen to a song, your friend can listen to a song, anyone can listen to a song, and because intellectual property is capable of being enjoyed by many people at the same time, it's subject to somewhat different rules than cookies. Or houses, or other kinds of property.

The report goes in-depth in other areas as well, including a discussion on fair use/fair dealing, the history of copyright (and how it's often been abused in the name of artists, when it really had nothing to do with them) and the importance of mashup/remix culture. It's the sort of report that a program like 60 Minutes could have -- and should have -- done, but did not. Kudos to ABC radio down in Australia.

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Disney's Keychest: Is Giving Back Your Fair Use Rights With More DRM Really A Step Forward?

from the redefining-fair-use dept

A bunch of folks have sent in different stories about Disney's new "Keychest" technology offering, which would (in theory) allow users to purchase content that would be stored online, and which they could then access from any "participating service."

With Keychest, when a consumer buys a movie from a participating store, his accounts with other participating services--such as a mobile-phone provider or a video-on-demand cable service--would be updated to show the title as available for viewing. The movies wouldn't be downloaded; rather, they would reside with each particular delivery company, such as the Internet service provider, cable company or phone company.

The idea, supposedly is:

to address two of the biggest hurdles blocking widespread consumer adoption of movie downloads: the difficulty of playing a movie back on devices other than a PC or laptop, and limited storage space on those computers' hard drives.

Now, while you must admit that allowing people to access the same content after a single purchase on multiple devices is definitely a step up from the "old" way of doing things, it does kind of ignore some important points: such as the fact that, for the most part, you could already do this on your own. As we know, it's legal to rip your CD's and then store that content on an iPod or on your computer and listen to the music how you want to do so. And, even though this is perfectly legitimate fair use of content for movies as well, Hollywood has used the worst provision in the DMCA -- the anti-circumvention provision -- to block people from doing what is accepted fair use with movie and television content.

So all Keychest really seems to be doing is giving you back your fair use rights on content -- but also wrapping it in additional DRM, such that it only works on "participating services." Oh, and it could include other limitations as well:

And Keychest would allow movie studios to dictate how many devices, connected to which distribution networks, a given title can be played on.

So, kudos to Disney for recognizing that people hate having to buy the same content over and over again and hate being limited on what devices they can view content on... but, creating a new, more permissive DRM solution, just to give back some of an individual's fair use rights, isn't really a huge win.

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Shepard Fairey Destroys Evidence, Goodwill; Harms His Case For No Good Reason

from the grow-up dept

On Friday morning, someone "working with" Shepard Fairey alerted me that some news was coming out that day about his lawsuit with the Associated Press over his famous Barack Obama poster:

I finally got the "official" statement from Fairey late on Friday, just as I was about to leave work for the weekend, and the whole thing was so ridiculous that I just figured I'd leave it until today. Apparently, Fairey, for absolutely no good reason, tried to destroy evidence and then lie about which photo he actually used to make his poster. He's now come clean about this, and while he's right in his statement that this shouldn't have any impact on the underlying case, it certainly doesn't help. It was already pretty well known that Fairey was hardly the poster child of fair use -- given that he has a history of going after others who copy his own work, despite being an "appropriation artist" himself. But, even so, this is beyond dumb -- something I don't say lightly.

Fairey still has a very strong fair use claim -- which is entirely separate from the question of whether or not Fairey did something incredibly stupid here. Even if he used the image the AP claimed he did (which he now admits), it still seems like this is an obvious case of fair use. But destroying evidence and lying -- especially when there was no good reason to do so -- just harms his credibility and makes it that much more likely that he'll lose his case not for any legitimate reason, but because of his own separate actions in dealing with this case. There are important fair use issues at play here, and Fairey just made it that much harder to maintain the high ground.

While some are pointing out that this is the sort of thing that happens when copyright laws always seem to stack the deck against fair use, that's still no excuse for lying and trying to destroy evidence. Yes, the system sucks, but doing something like this only harms an otherwise strong case.

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Access Copyright Says That There Should Be Less Fair Use

from the let's-not-listen-to-our-customers dept

Access Copyright, a Canadian copyright collections agency that has already positioned the discussions on copyright reform in Canada as a war against consumers, has had its submission to the government on the topic published, and it's really quite stunning in that it says that "fair dealing" (the Canadian version of fair use) is already too broad and needs to be greatly restricted. But the really stunning statement from the filing is the following:

Access Copyright submits that good public policy should not be dictated by legalizing common public practices.

Actually, it seems that's the very definition of good public policy. You know what bad public policy is? Destroying basic consumer rights and criminalizing basic consumer behavior because some obsolete organization can't figure out a way to adjust its business model.

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Focusing In On The Value: Google Books Provides An Amazing Resource

from the how-can-you-be-against-that dept

With all of the fighting over the Google Book settlement, it seems that an awful lot of people have lost sight of the key issue, which is that the tool itself, Google's Book Search, is amazing. We had mentioned this a couple of years ago. But if you step back from any of the legal issues, and just think about Google's book search as a tool, you realize what a wonderful cultural milestone it would be to make pretty much every book searchable. The more you think about it, the harder it is to take seriously anyone who is against this project. It's the equivalent of saying we should burn down all libraries because authors don't get paid every time someone checks out a book.

Luckily, even as the legal dispute continues, we're starting to see more people realize what a terrible thing it would be to kill off such a valuable resource. In that last link, law professor Peter Friedman not only discusses the Google Books project, but also Scribd, and makes a key point:

Why would you use copyright to stifle marvelous new innovations? Copyright exists to encourage, not stifle, invention.

What's scary about the discussions on the settlement, though, is that they don't seem to focus on this at all. Instead, almost all of them seem to be a weak excuse to attack Google because people don't like -- or don't like having to compete with -- Google.

Now, I've been clear since the day the settlement was announced that I thought it was a bad thing -- but not for the reasons most are stating. I thought it was bad because Google had a strong case for claiming that the project was covered by fair use. It was effectively no different than creating a fantastic card catalog -- again, something that should be encouraged. But, as Tim Lee brilliantly notes in a recent post, even if this whole lawsuit was over "fair use," what was so troubling about the settlement was that it deals with a bunch of other issues and sort of ignores the fair use issue! And yet, that was the center of the lawsuit.

In case we've forgotten, this is a copyright infringement case. The dispute between Google and the plaintiffs is not about orphan works, online book sales, or the structure of the publishing industry. It's about whether copyright's fair use doctrine allows the creation of a book search engine that displays "snippets" of in-copyright books in search results. Google says yes. Some publishers and authors said no. Absent a settlement, a judge would have been asked to rule on that question.

In a rational world, the settlement of the case would focus on that same question. Instead, we got a settlement in which the underlying infringement claims are treated as an afterthought. Instead, the focus is on the creation of an elaborate new structure for selling books online. It's as if Sony Pictures sued NBC for copyright infringement and then wound up with a "settlement" that focused mostly on Sony becoming a partner in GE's light bulb business.

And, indeed. So, why can't we bring the whole thing back into focus. Having a resource like Google's book search is an incredibly important and valuable cultural tool. It should be celebrated, not hated. But the key question is Google's legal right to create it. Any settlement should be focused on that issue, and not all of these extraneous things that are being shoved through the class action process. The settlement is bad, but Google's Book Search is an unequivocally good thing. Keep that in focus, and a lot of the sideshows melt away as meaningless.

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Fixing Trademark Law

from the is-it-time? dept

Over at the Citizen Media Law Project, Kimberley Isbell, is discussing an article she recently wrote on how to fix trademark law, which is a worthwhile read. The article mainly focuses on "ambiguities" found in trademark law, with the idea of settling some of the issues and making the guidelines more complete. Specifically, she hopes for a more clear delineation of what "fair use" means in trademark law, a better understanding of what defines "use in commerce," and adding a "safe harbor" to cover trademark, since it's the loophole that's left out from the current DMCA and CDA safe harbors that protect third parties from liability online in other issues (such as copyright and defamation).

On the whole, I think it's a good discussion, but I'm not sure I agree entirely. While initially codifying fair use within trademark law sounds like a good idea, my recent conversation with William Patry may have changed my mind on that topic. He pointed out that codifying fair use in copyright law ended up doing more to narrowly limit how fair use was applied, rather than allow judges to make a more expansive and reasonable view of what constitutes fair use. He pointed to the writings of Pierre Leval on fair use, which should be required reading for anyone looking to understand fair use. Given an attempt to codify fair use in trademark law, we might end up with the same set of limitations. While having more clearly defined lines may seem like a good idea, it also provides less flexibility, and more of an opportunity to fence in fair use, rather than letting it adapt as necessary.

On the second suggestion, concerning "use in commerce," we agree that current definitions are all over the map, but again, I wonder if trying to codify it via Congress leads to more problems than solutions. Any attempt will almost certainly screw up unique cases, leading to trouble down the road. Finally, I do absolutely agree on a safe harbor need in trademark, especially as those looking to bring copyright and defamation lawsuits have recently been bending over backwards to sneak in a trademark claim as well to try to avoid the other safe harbors.

As for the improving trademark law in other ways, I would think that the best way to do so, would be to ditch the (relatively) recent concept of "dilution" as trademark infringement, and focus on the real purpose of trademark law: to prevent consumer confusion and "passing off" of one good as made by someone else. As such, I've long been a big proponent of the "moron in a hurry" test that actually has been used in some cases (i.e., "would a moron in a hurry confuse this product and believe it was made by or endorsed by the trademark holder"). Focusing on just that test as a determination of trademark infringement would likely solve many of the common problems with trademark law -- including, most likely, removing the need for either a codified fair use of "use in commerce" clause. Instead, you just apply the moron in a hurry test and toss those lawsuits that wouldn't confuse said morons.

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James Joyce Estate Agrees To Pay Legal Fees To Professor It Sought To Stifle

from the good-news dept

We wrote in the past about how the estate of author James Joyce tried to use copyright law to prevent a professor from quoting any works from James Joyce or his daughter Lucia Joyce in a biography of Lucia Joyce she was working on. This was, of course, ridiculous, and after many years in court, the estate didn't just lose, but was ordered to pay attorneys' fees as well, totaling more than $326,000. The estate then appealed that as well, but has now agreed to settle, and pay $240,000 in attorneys' fees to the professor, Carol Shloss. While the end result was good, the fact that she had to go through this whole process just to write a biography in the first place is still quite problematic. Abusing copyright law to stifle free speech is always a problem.

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Wait, Was That An RIAA Education Campaign... Or Is It About Turning Schoolkids Into Unpaid Shills?

from the why-is-this-in-our-schools? dept

We recently took a look at the many problems with the RIAA's "educational materials" that it's pushing on schools. The EFF (who has its own -- much more accurate -- curriculum for schools) has noticed one other significant problem with the RIAA's propaganda material. They include an exercise that involves having schoolkids pitch local newspapers and TV stations to present propaganda:

Imagine that you are in the music industry... With your team of fellow music industry employees, plan an information campaign that lets others know why it's important to get their music the right way... You'll want to convince your classmates that your teams' plan is the one that will become the class project!

Challenge: Take your campaign a step further by contacting the editor of your community newspaper or the director of your community cable television station to see if you can submit an article or video about your campaign.

Of course, since we were suggesting more reasonable responses to the RIAA's proposals, why not have those same kids do a class project where they talk about artists who have embraced what their fans want, and have showed that it's possible to do quite well with models that don't involve going to war with your best fans. In the meantime, we're still wondering why any school would use obviously biased materials from an industry association, rather than impartial materials that are actually accurate? Does anyone know of any schools that use the RIAA's materials? We'd love to speak to some teachers who do...

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Fox Paid $60k For Video Footage Of Madoff On A Yacht... And Still Gets Sued For Copyright Infringement

from the fair-use-anyone? dept

JJ sends in the news that Fox News apparently paid some guy $60,000 for some video footage he took of Bernie Madoff on a yacht in 2003 for use on Fox News and Fox Business, and the guy is now suing Fox for more. Specifically, the guy licensed the work for 45 days for $10,000. After that period ended and Fox was still using the video, the guy sent a cease & desist, and Fox paid him another $50,000 for a bit over another month. Once that ended, Fox was still using the video, and the guy sued, demanding at least another $500,000. First of all... $60,000 for the use of a single video of Bernie Madoff on a yacht for ~90 days of usage? Damn.

But, separate from that, I would think that, even though it licensed the video originally, Fox could make a decent fair use argument, claiming that the video was for reporting purposes. On top of that, the guy is demanding to know how much ad revenue Fox brought in from certain advertisers, as if the video alone drove the ad revenue. Still, it seems odd that Fox would license video for news purposes for a limited time only. Does anyone really think it's still possible to put video online for just a limited time?

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New Infringement Defense? 'We Don't Roll That Way'

from the well,-there's-that... dept

A bunch of folks have been sending in the story of how some of the major record labels are suing the Ellen DeGeneres show for not paying for clips of music that the show uses during something called the "dance over" portion of the show. Not having ever watched the show, I don't know, but it sounds like a brief clip of music used as an interlude between parts of the show. As plenty of people are pointing out along with their submissions, this seems pretty silly. It's not like hearing these brief musical interludes is likely to harm the market for this music. If anything, it sounds like it would only increase interest in that music from the fans watching the show. Also, it does seem a bit odd that the show would be sued just as DeGeneres is named as a judge for American Idol (though, it's important to note that it's the producers of the show being sued, not DeGeneres herself).

However, I have to admit that the most fascinating part of the lawsuit to me is the piece pointed out by Whitney McNamara discussing how those producers first responded when the labels first asked the show why they hadn't licensed the music:

According to the suit filed Wednesday in U.S. District Court in Nashville, when representatives of the recording companies asked defendants why they hadn't obtained licenses to use the songs, defendants said they didn't "roll that way."

That won't get you very far in court, but is pretty damn funny. The response from the record labels wasn't too bad either:

"As sophisticated consumers of music, Defendants knew full well that, regardless of the way they rolled, under the Copyright Act, and under state law for the pre-1972 recordings, they needed a license to use the sound recordings lawfully."

Even though it makes little sense to me, the labels are almost certainly right here, and will almost certainly win. If, somehow, the show producers could convince a judge that this use of the music was fair use, that would be a huge victory for fair use -- but seems (unfortunately) quite unlikely. Either way, the "we don't roll that way" defense is quite amusing -- especially coming from TV producers who you would think normally fall on the "stronger copyright law" side of the fence. Imagine if a file sharer used that response?

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A Look At The RIAA's Copyright Propaganda For Schools

from the why-does-anyone-use-this-stuff? dept

It's back to school time, and our friends over at the RIAA have a blog post up excitedly talking up its special "curriculum" for teachers. But, of course, that "curriculum" is laughably biased and at times outright wrong. And it makes me wonder: why would any educational institution accept a one-sided curriculum written by the industry that's clearly designed to promote that industry's own business? Do schools use science curricula provided by Exxon or Monsanto? As for the actual content included in the curriculum (which, by the way, the RIAA links to incorrectly twice), it's almost a joke. Check out the RIAA propaganda. Fair use doesn't exist -- at all. Reading through the main document, I find not a single mention of it. But what does exist is all sorts of bogeymen about how evil file sharing is, how it exposes your hard drive to viruses and reveals your tax return info.

Oh, but the best part, is that the RIAA is pushing for a new totally made up term called "songlifting" which is the central theme of every single lesson. Sounds like "shoplifting," right? That's the idea -- though the RIAA cleverly tries to pretend that it didn't make up the word. In fact, it presents it as if it's a common term. Of course, the curriculum doesn't happen to mention the Supreme Court's Dowling decision, where the court specifically talked about how very different infringement is from "stealing." Of course, the RIAA also mentions the Grokster ruling -- but is misleading there as well, claiming that the law is clear that parents could be found liable for their kids sharing unauthorized files.

The actual exercises are ridiculous propaganda. The first one is supposed to be about "math" skills for the lower grades and "spreadsheet" skills for higher level students. Guess what the "math" is?

This part of the activity should help students recognize how songlifting, though it might seem harmless at first, can quickly become a largescale problem. Have students complete the calculations on the worksheet using spreadsheet software or a calculator. If time permits, repeat the first calculation by having students choose a realistic number of songs they would take if they could get them all for free. Adding desire to the equation in this way can further dramatize why songlifting can have an enormous economic impact.

Answers
Total number of songs lifted = 7,800,000;
Total cost of songs lifted = $7,722,000.
$926,640,000 (i.e., nearly a billion dollars).

Hmm. If we're simply making stuff up for propaganda purposes, how about "total number of new listeners a musician gets thanks to such sharing?" And then "total amount those musicians make when those new fans go to concerts or purchase merchandise thanks to hearing the songs for free." Might change the math a bit, but what do I know? I'm not an industry lobbyist, so my "industry" math isn't up to par.

Then there's propaganda about job losses:

Ask students to name some people who might work in this part of the music business (e.g., machine operator, printer, packager, truck driver, store manager, cashier, online order handler, etc.). Talk about how these people might be affected by songlifting, then have students work individually or in small groups to list other music makers unnamed in the story.

Ok. Why don't we talk about the jobs on the other side of the equation? How about all of the people employed by technology companies that the RIAA has helped put out of business through lawsuits? Or students that the RIAA has bankrupted via lawsuits? Have students put together a list of just how many lives and jobs the RIAA has destroyed. Point them to the story of MP3.com. And Napster. And Launchcast. And Grokster. Tell them how the RIAA tried to have the iPod (or, more accurately, its predecessor) banned, and have them think about how different life would be without it. Tell them how the RIAA is fighting hard to tax radio stations, putting so many radio people out of business. Tell them the story of the MIT student who the RIAA suggested drop out of school to pay a fine. Talk about how all of these people might be affected by the RIAA's overreaction to innovation and new technologies, and its own inability to embrace new business models. Then have students work individually or in small groups to list other tech companies making lives better that the RIAA has threatened, sued or put out of business.

Highlight the variety of career opportunities available in the music industry by having students research one behind-the-scenes music maker and write a brief description of that job.

Highlight the variety of career opportunities available in the tech industry thanks to new innovations that the RIAA has tried to kill. Then highlight the career opportunities in the music industry itself that have finally opened up now that the major labels are scrambling to learn technology.

Next, draw the copyright symbol (©) on the chalkboard. Ask if students know what this symbol means and where they might have seen it (books, posters, CDs, etc.). Explain that the copyright symbol is used to identify the owner of a piece of intellectual property and serves as a reminder that it is illegal for anyone to copy or distribute that property without the owner's permission.

Next, explain fair use, and how the above statement claiming that it's illegal for anyone to copy or distribute without the owner's permission is not necessarily true at all. Oh wait... that sentence isn't in there.

You might also inform them that our nation's Founders included copyright protection in the U.S. Constitution (Article I, Section 8), believing that it would encourage creativity by giving the creators of intellectual property an exclusive right to profit from their artistic talents.

You might also inform them that those Founders were highly cautious about this issue, and had stated their worries that these monopolies would do more harm than good, and that they should be greatly limited and monitored to avoid such harm. You might also want to point out that the RIAA seems to have forgotten the "limited time" part of this, but I guess you can be forgiven, since they (and their friends in the movie industry) have pretty much convinced Congress to ignore that part.

Then there's this fun list of "brainstorming ideas" with some responses/corrections/clarifications after each one:

• Songlifters take millions of dollars of music each year.
  
  Actually, file sharers don't "take" any money. This is a flat out lie.
  
  
• Songlifters hurt all kinds of music makers, not just the stars.
  
  Those who have embraced file sharing in combination with smart business models have found it works for all kinds of music makers, not just the stars.
  
  
• Songlifters keep new artists from getting their chance at stardom.
  
  Many up-and-coming artists are finding that giving away their music is a large part of how they build their fanbase and become stars.
  
  
• Songlifters are breaking the law.
  
  In many cases, those who share unauthorized files may have violated copyright law, though it's a civil issue, not a criminal one.
  
  
• Songlifters can get other people in trouble by sharing illegal music.
  
  Because the RIAA isn't very good with data, it's been known to sue the wrong people
  
  
• Songlifters can get computer viruses when they illegally download online.
  
  Doing things online when not careful can result in getting viruses. That has nothing to do with file sharing. Careful users can avoid viruses.
  
  
• Songlifters don't respect other people's intellectual property.
  
  The RIAA doesn't respect fair use rights, the need for a lively and dynamic public domain or the right of technology companies to innovate.

The whole thing is pretty ridiculous frankly. It doesn't even make a half-hearted attempt at talking about the rights of everyone else or the actual purpose of copyright law. The whole thing is basically about brainwashing kids into accepting that the record labels' old business model must stay in place forever. Luckily, most kids are smarter than that and can see through such propaganda pretty quickly. However, if schools really are interested in educating kids about copyright, why not use a non-industry curriculum, like the one put together by the EFF, called Teaching Copyright.

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