Copyright Is An Exception To The Public Domain

from the a-manifesto dept

A bunch of folks have been sending in this wonderful Public Domain Manifesto, put together by Communia. It's a wonderful read, highlighting the importance and value of the public domain, and putting forth a series of general principles which appear to make a lot of sense. It also discusses other aspects of related issues, such as the importance of individuals choosing to not use copyright, as well as the value of fair use and fair dealing. The point is both to highlight how important the public domain is to a vital thriving culture, and also to point out how the public domain has been steadily eroded over the last few decades. A key point is found in the first principle, and it's to remind everyone that copyright is an exception to the public domain, not the other way around:

The Public Domain is the rule, copyright protection is the exception. Since copyright protection is granted only with respect to original forms of expression, the vast majority of data, information and ideas produced worldwide at any given time belongs to the Public Domain. In addition to information that is not eligible for protection, the Public Domain is enlarged every year by works whose term of protection expires. The combined application of the requirements for protection and the limited duration of the copyright protection contribute to the wealth of the Public Domain so as to ensure access to our shared culture and knowledge.

Unfortunately, it's rarely thought about like this. Instead, most people consider copyright to be the rule, and things like the public domain and fair use to be exceptions. This is a problem, and it impacts how people view, understand and respond to things like copyright and the public domain itself.

To be honest, I have no idea how useful something like this manifesto really will be. Very few politicians seem to understand or care about the public domain and its importance. The manifesto might not have much of an impact on its own, but as a general set of principles for people to understand and gather behind it does seem like a good thing.

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NY Times Takes Up The Case Of Sherlock Holmes And The Lost Public Domain... But Gets It Wrong

from the we're-missing-some-clues-here dept

You may recall that last month we had an interesting discussion here over whether or not Sherlock Holmes was in the public domain. The answer was not entirely clear, because you get different answers from different people. However, it looks like the NY Times is on the case, and has a an article looking into the ownership of Sir Arthur Conan Doyle's creation. Unfortunately, I believe the NY Times gets it wrong.

While the article does detail the amazingly convoluted history over who owned the copyrights (and the various disputes associated with those rights), it gets a bunch of things wrong and (oddly) never seems to talk to any copyright lawyers. While the article does note that Holmes is public domain in the UK, it makes a blanket statement that Holmes is still covered by copyright in the US:

Mr. Lellenberg said that Sherlock Holmes remains under copyright protection in the United States through 2023, and that any new properties involving the detective "definitely should" be licensed by the Conan Doyle estate.

Lellenberg would say that, because Lellenberg is the literary agent for the Arthur Conan Doyle estate, and wants you to believe that. But, as we discussed last time, it's not true. All of the Sherlock Holmes books except one have now entered the public domain. And, yes, this creates quite a mess. But, in theory, anyone who created a work based solely on the public domain works, and which is not based on or derived from that last work, should, in fact, be legit without a license. That doesn't mean that Lellenberg (or some of the others who claim rights over Holmes) wouldn't sue, but it's not correct to claim that Holmes is still completely covered by copyright. The fact that the vast majority of his books are very much in the public domain is a rather important fact -- and totally ignored by the NY Times article.

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CBS Would Rather Kill Off Classic Jack Benny Video Footage Than Let Fans Rescue And Digitize It

from the killing-culture dept

In the past, we've seen time and time again how copyright has been used to lock up culture and make it inaccessible. At times this is literally destroying culture, as content is left on degrading media, and those who can preserve it are blocked from doing so. The latest example of this, as sent in by an anonymous reader, involves the famous comedian Jack Benny. Apparently, a bunch of Jack Benny fans have been seeking the right to digitize old audio/video footage of Benny from CBS in order to preserve it. But, in a short-sighted decision, CBS has instead decided to lock up the content and let it disintegrate away (literally):

Late last week the International Jack Benny Fan Club got some very bad news: rather than allow the club with the Benny family's enthusiastic blessing to digitally preserve some unreleased public domain Benny show masters that CBS has in its possession, the network is giving a thumbs down to the idea -- thus sealing these shows' fate so they will never be seen again. In effect, it's a bullet through the head of this body of Benny work. And here is the most frustrating tidbit for comedy fans and those who study comedy: the Fan Club offered to do the preservation at no cost to CBS.

Yes, some of this content is public domain. Of course, that doesn't mean anyone has a right to access it, but it is rather ridiculous that CBS won't even bother to release the public domain material.

Update: In the comments, Ben pointed to this response which claims that there is more to this story, and that CBS just didn't want to give the content out to this particular fan group. I still don't quite understand what the problem is with that fan group, and why CBS won't allow it, but it gives a bit more perspective on the story.

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Tomorrow Is National Book Burning Day; Thank Your Friendly Entertainment Industry Lobbyists

from the burn-baby-burn dept

January 1st of each year should be National Public Domain Day, when many different creative works enter the public domain, where they can be made useful. In years past, it was a regular occurrence as tons of creative works went into the public domain each year. Often this was by choice on the part of the copyright holder. That's because copyright used to have a renewal requirement, and the vast majority of copyright holders found little reason to renew their copyright. In 1958-59, only 7% of book copyright holders chose to renew their copyrights, meaning that 93% of books that could have been covered by copyright were allowed to enter the public domain. The small number that did have their copyrights renewed were (not surprisingly) the books that were still huge commercial successes, whose authors and publishers wished to retain their monopoly rights.

But a change happened in 1976 in the US, with the adoption of a new Copyright Act that not only took away the renewal setup, but also made very lengthy copyrights automatic on works. Add to that continued copyright extension at the urging of the entertainment industry lobbyists, and we haven't had an actual Public Domain Day in ages -- and many of us may never see another one in our lifetimes. Considering the incredible value that the public domain has on our culture, this is a huge culture killer.

James Boyle is noting that, assuming he would have renewed his copyright, tomorrow is the day that Ray Bradbury's Farenheit 451 would have gone into the public domain under the law as it was before 1976. But now it won't be. Instead of the "book burning" found in that book, we've created a different kind of book burning. Thanks to lawyers, lobbyists and politicians, we've locked up a massive number of works that should be available for all, and the vast majority of which are available for none.

Unlike Fahrenheit 451, the vast majority of the culture swept into this 20th century black hole, was not commercially available and, in most cases, the authors are unknown. The works are locked up -- with no benefit to anyone -- and no one has the key that would unlock them. We have cut ourselves off from our own culture, left it to molder -- and in the case of nitrate film, literally disintegrate -- with no benefit to anyone. The works may not be physically destroyed -- although many of them are; disappearing, disintegrating, or simply getting lost in the vastly long period of copyright to which we have relegated them. But for the vast majority of works and the vast majority of citizens who do not have access to one of our great libraries, they are gone as thoroughly as if we had piled up the culture of the 20th century and simply set fire to it; and all this right at the moment when we could have used the Internet vastly to expand the scope of cultural access. Bradbury's firemen at least set fire to their own culture out of deep ideological commitment, vile though it may have been. We have set fire to our cultural record for no reason; even if we had wanted retrospectively to enrich the tiny number of beneficiaries whose work keeps commercial value beyond 56 years, we could have done so without these effects. The ironies are almost too painful to contemplate.

And, of course, it's not just Bradbury's book that is still locked up. Among the many things that would have/should have gone into the public domain tomorrow are Marilyn Monroe's Playboy cover, JD Salinger's Nine Stories and Ian Fleming's first James Bond novel, Casino Royale. But, again, it's not these works that we should really be mourning. It's the other works that no one really has access to any more. What a shame.

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Elementary My Dear Watson....It's Called The Public Domain... Or Is It?

from the the-case-of-the-missing-public-domain dept

Fletch writes "Here's an interesting little article on why Sherlock Holmes remains so popular. Of course it happens to come right before the new movie opens and I am just sure it is pure journalism even though CNN and Warner are owned by the same company. Though I do find it rather odd that they don't mention a small part of the reason why Holmes is still so popular is that he is in the public domain and new and varied stories are created about him daily. Yes, he has always been a widely loved fictional character but there are a great many characters with fan bases. Holmes has stretched his by being used in almost all genres and having been written by some of the most popular authors even today. People like Stephen King and Neil Gaiman have written Holmes short stories and will continue to because of his public domain status. Even TV shows have gotten into the act with House M.D. which is a thinly veiled Holmes knock off. I find it odd that the same companies who decry the public domain are more then happy to use it when it suits them."

Definitely an interesting point from Fletch, but there is some dispute over the state of Sherlock Holmes' copyright status. While the character is in the public domain in some countries, there's still at least one book in the US covered by copyright, The Case Book, and the legal representative of the estate of Sir Arthur Conan Doyle seems to suggest that this means the character itself is protected by copyright until 2023, though that doesn't seem correct to me. My understanding of other characters that have gone into the public domain is that when their first works enter the public domain, the characters themselves enter the public domain -- but only the aspects of their characters originally covered by copyright that were included in those works.

Of course, this is made even more complex because it's still something of an open question as to what, exactly, about a character is covered by copyright. It used to be believed that the characters themselves were not covered by copyright, since it was only the expression, not the "idea" that was covered. But, a variety of court rulings in the US have ruled in favor of the claim that characters themselves can be covered by copyright -- leading to highly questionable legal results like the recent banning of a book using an updated version of Holden Caufield, the protagonist of JD Salinger's Catcher in the Rye.

Not surprisingly, the estate who owns the copyrights tries to present the situation as saying that all uses require a license. But, then again, it's not like they're going to tell you what's in the public domain when it's in their best interest to claim that nothing is. Either way, it appears that the initial claim concerning the public domain isn't quite the case -- and I would bet that the studio that made this latest movie paid for a license to avoid a legal fight. Why they should have to -- especially given the fact that when the content was written there was no way for it still to be protected today under copyright law -- is a separate (but rather important) question.

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Canadian Ebook Store Offers 'Free' Public Domain Ebooks -- Claims Copyright Says You Can Only Make 1 Copy

from the not-this-again dept

Brendan writes "Chapters/Indigo, the dominant book retailer in Canada, just recently launched their eBook store, thinly disguised as an independent 3rd party called ShortCovers. Both companies are children of the parent company Indigo Books & Music Inc.

The fact that they have launched an eBook program is not a problem. It's great, in fact. I'd like to see more action in this space, and anything to help people read more is a step in the right direction. The problem I have is with how they've done it.

When announcing the service on Monday, the company trumpeted loudly the offer of "FREE eBook downloads!" in a mass email and on the main Chapters page. Can you guess what all the eBooks offered for free have in common? That's right, they're almost all public domain works. They do list the publisher as "Gutenberg" for all the PD books, but do they explain what that means? Do they inform the user that these are public domain works? Do they include a link to Gutenberg.org, where any user can download these books in plain texts to use however they want? No, of course not.

Instead, they wrap the books up in their tight little DRM package. Each page (according to their idea of a page) loads painfully in a flash frame and within the text of the book is non-selectable. And most are not available as downloads (as they are on Gutenberg).

The worst offense? That dangerous little line at the bottom of each page of each book: "(C) All Rights Reserved All copyright ownership rights relating to this content are specifically and expressly reserved by the owner thereof and are marked © by the owner of this content, 2009." An interesting claim, to be sure. What am I to do with this book, ShortCovers?

"All Rights Reserved. You are free to make one (1) copy of this work for non-commercial purposes only, provided you abide by the following:
* For any reuse or distribution, you must make clear to others the license terms of this work. The best way to do this is with a link to this web page.
* Any of the above conditions can be waived if you get permission from the copyright holder.
* Nothing in this license impairs or restricts the author's moral rights."

I can make one (1) copy? Wow! I better use it carefully."

This isn't the first time we've seen bookstores DRM up and claim copyright over public domain works. The DRM stuff is dumb, but understandable, since they just want to have one system and often seem to choose an anti-consumer one. But telling people that they are only allowed to make one copy of a public domain work and putting a © sign on it is pretty ridiculous.

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Does The White House Have Any Legal Right To Demand No Modifications To Its Photos?

from the doesn't-appear-that-way dept

You may recall earlier this year that there was a fair bit of controversy when the White House started putting photos up on Flickr. Or, rather, there was controversy over the licensing. Everyone thought it was great that the White House would have its own Flickr channel and constantly post photos -- but since Flickr only had certain licensing options that you could put on a photo, there was a problem. Even though the White House chose a Creative Commons Attribution license at the time, that was still too much. Government documents are not covered by copyright, and the photos clearly should be public domain. After a bit of back-and-forth, Flickr created a special public domain license so the White House could properly designate the photos.

And yet... it appears that the White House is now trying to claw back some rights over these photos that it just doesn't have. Tim Lee points out that along with these officials photos is a licensing claim that goes well beyond the public domain, stating:

This official White House photograph is being made available only for publication by news organizations and/or for personal use printing by the subject(s) of the photograph. The photograph may not be manipulated in any way and may not be used in commercial or political materials, advertisements, emails, products, promotions that in any way suggests approval or endorsement of the President, the First Family, or the White House.

The problem is the White House has no right to say that you can't manipulate the photo, since the photo is public domain. It's really unfortunate that, once again, we're seeing how little people seem to understand (or value) the public domain.

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YouTube Taking Down Public Domain Works?

from the make-it-stop dept

In the past couple of days I've received emails from two separate people who found that public domain material they put on YouTube was taken down to companies claiming ownership of the work. In both cases, the stories seem pretty ridiculous, and for all the complaining that copyright holders do about how awful it is that they need to "police" their own content on YouTube, it seems like those who are getting hurt are people who are putting up public domain material and getting shut down -- often with little recourse.

The first story comes to us from two self-described "hippies," Haint and Littia, who had put up a video showing some of Haint's works, and used as background music a song by a group called the Psalters, who put their entire album into the public domain so that anyone could do what they wanted with it -- such as using it for background music in a video. However, music licensing company Rumblefish, supposedly uploaded its catalog into YouTube's content ID system -- and apparently (and I'm still trying to figure out how, because no one seems to have a good explanation), the Psalters song is somehow in Rumblefish's catalog. Hence, YouTube took down the video. Apparently others have also been finding their perfectly legal and licensed content taken down thanks to Rumblefish as well, and were told that they needed to call and get Rumblefish's permission to get the content back up.

Haint and Littia note that they can't issue a counternotice, because Rumblefish never sent a DMCA notice which they can counter (Update: to clarify, as explained in the next sentence, they can dispute, but that's slightly different than countering the DMCA notice, and comes with its own problems). The "takedown" was triggered by the content ID match, which still makes things a bit tricky, since "disputing" such things could potentially lead to a lawsuit, so there's a bit of a chilling effect in disputing a content ID match. Poking a big company with a stick where they can turn around and file a lawsuit is a bit scary -- even if you know you're in the legal right.

While looking into that story, reader Stephen Pate sent over his own story of having his entire YouTube account suspended. He's not entirely sure why, but believes it has something to do with video he posted of the recent "crash on the moon." The video was taken directly from NASA's live broadcast, which NASA makes clear is not covered by copyright.

But... along came everyone's favorite news organization, the Associated Press, and claimed the video was their copyrighted material. Nice of them. Due to at least one other similar incident, Pate's entire account was shut down, and to make matters worse, this apparently happened at about the same time that YouTube switched emails to gmail logins, leading Google to claim that it can't match his email to the email of the account in question.

I'm sure Google and YouTube are trying their best, within the confines of copyright law and various lawsuits, to handle such situations, but it seems like things are a mess -- and more and more users are finding that even if they have what appears to be perfectly legal content, they may face takedowns and even loss of their entire account, with limited avenues for recourse.

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FBI Investigation Into Programmer For Freeing The Public Domain

from the an-exploit? dept

A bunch of folks have sent over the incredible story of how the FBI investigated well-known programmer Aaron Swartz, after discovering that he had installed a perl script on a computer at the 7th U.S. Circuit Court of Appeals library in Chicago, to cycle through PACER documents and upload them to an Amazon S3 account. Basically (as we've discussed in the past), court documents -- which are in the public domain -- are mostly locked up in the gov't's PACER system, which costs $0.08/page. However, since the documents are public domain, once you get them, you're free to do what you want with them. The Government Printing Office started an experiment last year, offering free access to PACER in certain libraries. Swartz just went to one and then installed his script to cycle through and upload those documents. The library's IT staff eventually noticed the issue (it took a few weeks) and alerted the FBI who began an investigation of Aaron, after Amazon handed over his info. While you can sorta understand why the FBI might look into why someone had installed a program on a court library computer, once it became clear that it was only accessing public domain documents, it seems pretty silly to have continued onward -- including driving by his home and considering a stakeout.

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US Courts Now Say RECAP Is Fine

from the but-who-sent-out-those-letters? dept

Earlier this week, we wrote about how some Federal Courts were sending out misleading emails warning people about RECAP, the Firefox extension that would help make public domain PACER documents freely available. The warnings from the courts were scare tactics... but Paul Alan Levy spoke with Michel Ishakian, the Deputy Chief for IT Policy and Budget at the Administrative Office of the United States courts, who is apparently saying that the US courts are now perfectly fine with RECAP. That doesn't quite explain the scare tactic emails that have been sent out, but it's nice to know that (hopefully) the courts are coming around to see the value of RECAP. In fact, Ishakian apprently had a call with Ed Felten, who oversaw the RECAP project, and apparently everyone's on the same page. That's definitely good news.

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Federal Courts Sound The Alarm Against RECAP; Worried About PACER Profits

from the and-that's-how-it-goes dept

We've been excited to see what would happen with the RECAP Firefox extension, which is being used to help free up public domain court documents that have been locked up behind the PACER paywall. However, there were also questions about how the folks who run and/or benefit from PACER would react. We now have at least part of the answer: bogus scare tactics. Paul Alan Levy alerts us to the fact that the Federal Court system, which profits from PACER, has started sending out scare notices to try to keep lawyers from using RECAP:

The court would like to make CM/ECF filers aware of certain security concerns relating to a software application or "plug-in" called RECAP, which was designed to enable the sharing of court documents on the Internet.

Once a user loads RECAP, documents that he or she subsequently accesses via PACER are automatically sent to a public Internet repository. Other RECAP/PACER users are then able to see whether documents are available from the Internet repository. At this time, RECAP does not appear to provide users with access to restricted or sealed documents.

Please be aware that RECAP is "open-source" software, which means it can be freely obtained by anyone with Internet access and could possibly be modified for benign or malicious purposes. This raises the possibility that the software could be used for facilitating unauthorized access to restricted or sealed documents. Accordingly, CM/ECF filers are reminded to be diligent about their computer security and document redaction practices to ensure that documents and sensitive information are not inadvertently shared or compromised.

The court and the Administrative Office of the U.S. Courts will continue to analyze the implications of RECAP or related-software and advise you of any ongoing or further concerns.

I especially like the "scare quotes" around "open-source." Of course, I'm not quite sure why the fact that the extension is open source makes it any more vulnerable to being "modified for benign or malicious purposes." Either way, looks like the Federal Courts don't like competition eating away at their PACER profits.

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RECAP Used To Show Vacated Rulings That A Judge Wanted Gone

from the is-this-good-or-bad dept

Last week, we wrote about the launch of RECAP, a neat little tool for making sure that more public domain court rulings are actually accessible to the public (what a concept). Apparently, the tool is already useful. Thomas O'Toole points us to the news of someone who used RECAP to point to rulings that were vacated and then (oddly) ordered to be removed from various databases. All of this was a part of a settlement agreement. Rulings get vacated all the time, but having the judge order the various databases that hold rulings to delete them seems a bit extreme. However, thanks to RECAP it seems that the original rulings are still available. Yet another reminder that you can't make things disappear online.

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Recap The Law: Getting Public Legal Data Back To The Public

from the about-time dept

There's been a push by people both inside and outside the government to get public court documents out to the public. As it stands now, most court documents can be found via PACER, the court system's own online service, which charges $0.08 per page. PACER notes that it's charging for the documents to cover its own costs of managing its system, but this still bothers many who don't like the fact that important public domain case law is so costly. There are some private services, like Justia trying to fill the void, and Carl Malamud is pushing hard to get the government to put public documents up for the public to read.

Now there's a new service that has an interesting tactic to try to help bring these documents to the public domain. Ed Felten's Center for Information Technology Policy at Princeton University is announcing a service and a Firefox extension called RECAP (it's PACER backwards), with the tagline: "turning PACER around." It's a bit ingenious. Basically, if you're a PACER user, you install the Firefox extension, and any documents you access via your PACER account automatically get uploaded to a public archive (hosted by the Internet Archive folks). If the document has already been uploaded, the extension alerts you to that fact in PACER, so you can access the open archived one.

While the folks at PACER might not like this, it's all perfectly legal. The documents are public domain, and people can do whatever they want with the documents once they have them. Creating a public archive is one option -- and a rather useful one at that. The real question is how many PACER users will actually participate in the program in order to make this a truly useful resource. At launch time, this public database has already been seeded with about a million documents, but the question is how quickly will it grow? No matter what, conceptually, this is a fantastic idea that hopefully will help to open up public domain court information that has been locked behind PACER's paywalls for too long.

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Compare The Smithsonian To London's National Gallery When It Comes To Public Domain Images

from the one-way-or-the-other dept

As noted here recently, London's National Portrait Gallery is involved in a legal tiff concerning whether the photos it put online of public domain portraits are public domain themselves. The Gallery insists they are not, and wants to prevent others from using them. However, jump across to this side of the pond and compare that response to what the Smithsonian is now saying, concerning its plan to get content more freely available and shared:

Content Usage: Establish a pan-Institutional policy for sharing and using the Smithsonian's digital content, with particular focus on Copyright and Public Domain policies that encourage the appropriate re-use and sharing of Smithsonian resources.

That sounds a lot better, and more in-tune with the mission of such a museum. To be fair, a few years back, the Smithsonian had its own troubles claiming copyright over public domain images, so perhaps it just takes a bit of time for these things to sink in.

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Copyright Conundrum: Was 'Public Domain' Music Silenced On YouTube?

from the it's-in-the-recording... dept

Mark Guertin writes in with an interesting situation that he's dealing with, which I think highlights some of the problems with copyright law today. Guertin put together a YouTube video of some swimming pugs as part of a promotion for a charity he's involved with. Knowing that music on videos is a potential copyright issue, he went to Wikipedia to find some public domain music, and chose Wagner's Ride of the Valkyries to accompany the swimming pugs.

Except... he got blocked. YouTube's content ID system told him that the song was owned by (who else?) Warner Music Group, and thus the soundtrack was muted. Guertin filed a counternotice, and the music was reinstated, but then muted a second time as apparently someone (Google/Warner?) didn't agree with the counternotice. Without knowing the details, my guess is that the situation has to do with the different types of copyright coverage. While the song Ride of the Valkyries is public domain, each individual recording of it is covered by copyright. It seems likely that whatever recording was used is still under copyright.

Guertin is reasonably upset about the situation, especially the whole concept of having the music blocked until WMG has a chance to weigh in on it, noting that "guilt before innocence" seems incredibly unfair.

But the bigger issue may be how this (once again) shows how out of sync copyright law is with what people think is reasonable or fair. If you found out a piece of music was in the public domain, it's natural to assume that a recording of that same piece of music is in the public domain. And to make things more confusing, that's absolutely true (in the US at least) of a photograph of a public domain painting. But making a new recording of a public domain song? Bam. A new monopoly created.

Unfortunately for Guertin, the track he used probably is not in the public domain, even if the music is (yes, that's confusing). That's why, these days, it's probably more reasonable to search out Creative Commons-licensed music than public domain music -- because you can't be as sure whether the PD part covers the recording as well as the music. To some of us, that seems like a problem with current copyright laws, while others appear to view it as a feature.

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AP Will Sell You A License To Words It Has No Right To Sell

from the why-not? dept

Last year, you may recall, we pointed out that the Associated Press had a laughable sliding scale price if you wanted to copy and use more than 4 words (the first 4 free!). After that, it cost $12.50 for 5 to 25 words. This, of course, ignores fair use, which (and, yes, it does depend on the circumstances) almost certainly would let most people quote more than 4 words without having to pay. But, of course, it gets worse. Boing Boing points us to a little experiment by James Grimmelmann, testing out the AP's text licensing system, where he discovers that you can put any text you want into the calculator, and the AP will gladly sell you a license. So, just for fun, Grimmelmann paid $12 for a license to a (public domain) quote from Thomas Jefferson, culled not from the AP, but from Jefferson's famous letter to Isaac McPherson, where he warns of the excesses of intellectual monopolies:

Grimmelmann also points out the ridiculousness of the terms associated with licensing the content, including that it must be used exactly as written, and requires the exact attribution footer the AP's system generates (which never bothers to check to see if the content is actually from the article in question). Oh yeah, it also doesn't let you quote for "political Content," however that's defined. It makes you wonder if the same folks who build this little anti-fair use licensing system are the same folks who are building their DRM for news.

And, of course, there are similarly ridiculous situations, such as Dave Zatz finding out that it will cost himself $25 to quote himself (thanks johnjac). The AP keeps making a mockery of itself.

Of course, the AP has put out a statement, basically mimicking the one it put out last year, saying that the icopyright stuff is not intended for bloggers. But then who is it intended for? Considering that the AP has threatened bloggers in the past for quoting its words, the whole thing seems bizarre. So you can rely on fair use if you're a blogger, but not... if you're something else? How does that make sense? I've read through our copyright laws more than a few times, and I don't recall the clause that says "fair use applies to bloggers, but not others."

Update: As a few people have pointed out, after all the media attention, the AP "revoked" the license. Note the language. They didn't apologize. They didn't admit error. They didn't admit awful technology and a silly policies. They "revoked" a license they had no right to sell in the first place. At least they gave him his money back.

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How You Feel About Rorschach Tests On Wikipedia Says A Lot About You

from the meta-meta-rorschach-test dept

The NY Times has an article about how a group of psychologists are quite upset that the original 10 "Rorschach test" ink blots have been added to Wikipedia, along with brief explanations of what people commonly see in the ink blots (here's the Wikipedia page on the Rorschach test). As I would hope most of you know, Rorschach tests are used by some psychologists, believing that what people see in the blots can tell the psychologist a lot about their personality. The ink blots themselves are in the public domain, so there's really no legal issue over them being available, but that hasn't stopped the complaints. Some psychologists are worried that this creates a "cheat sheet" that will be abused. To that, I say that if your test is so easily gamed, it's time to find a different test.

But, much more bizarre is the claim by the German publisher of Rorschach's book, Hogrefe & Huber Publishing, that it's likely planning legal action:

We are assessing legal steps against Wikimedia.... It is therefore unbelievably reckless and even cynical of Wikipedia to on one hand point out the concerns and dangers voiced by recognized scientists and important professional associations and on the other hand -- in the same article -- publish the test material along with supposedly 'expected responses.'

It's pretty difficult to see any leg to stand on. The content is clearly in the public domain. And, on top of that, the issue shouldn't be with Wikimedia, but the guy who uploaded the images. Also, most of that statement from the publishing company doesn't make much sense. It's not cynical to both post the images and the discussion about the concerns. It's actually quite logical and reasonable.

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B&N Claims It Must DRM Public Domain Books To Protect The Copyright On Them

from the say-what-now? dept

Now, it's no surprise that plenty of people don't quite "get" the public domain or why it's important (though, if you are interested, you should read James Boyle's excellent book on the subject, which you can also order -- signed -- as a part of the Techdirt Book Club). And we've seen more than a few instances where people falsely claim copyright on public domain material. However, none of that really explains Barnes & Noble's bizarre and contradictory response to someone's question about why public domain ebooks were locked up with DRM (thanks Mark for sending this in). B&N is apparently offering a promotion for "free" ebooks, but it turns out that all of them are in the public domain (meaning most are already available for free online). But, oddly, these books were locked up by DRM, and someone decided to ask why. The original question goes a bit too far in claiming that the DRM "infringes" on the "right to print the works" (there's no such right, and B&N has no requirement to allow you to print), but that's no excuse for the way B&N "explains" why the public domain books its giving away "free" are protected by DRM:

We selected public domain titles as our free eBooks because these books are traditionally among our customers' favorite works of literature.... Also, for copyright protection purposes, these files are encrypted and cannot be converted or printed.

So, they recognize that the works are in the public domain... but they encrypt them with DRM to protect the copyright that doesn't exist on those works. That's convincing.

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Is The National Portrait Gallery Lying About The Cost Of Its Digital Archives In Fight With Wikimedia?

from the might-be... dept

Last week, we wrote about how the National Portrait Gallery in the UK was threatening a guy who uploaded a bunch of photos from the Gallery's site to Wikipedia and defended his upload by noting that the portraits in question were all in the public domain. The Gallery insists that the photos of the portraits are not in the public domain, and that's where the heart of the legal dispute lies -- though, there are some side issues. In the US, it's pretty clear that a photo of a public domain work remains in the public domain (assuming no additional creative expression is added). In the UK, it's unsettled law. However, as the situation gets more attention, some interesting facts are coming out.

The National Gallery is claiming that a big part of the reason for why it's doing this is that it has cost £1 million to digitize the photos, and removing the ability to license the images makes it less likely that others will digitize their own collections. That's not a bad argument (though, there isn't necessarily a legal basis that copyright should be based on how much it costs to create the work in question). However, someone decided to check on those numbers, and put in a Freedom of Information request, and discovered that the actual costs to digitize and put the collection online was significantly lower than what the Gallery is claiming:

The Gallery spent £18,000 to put its collections online in 1999. During a ten year period up to 2008 another £10,000 was spent on minor developments and adjustments and in 2008 and 2009 a further £11,000 was spent. This gives a total figure of £39,000.

Now, that's not nothing, but £39,000 is significantly lower than £1 million, yes?

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National Portrait Gallery Threatens Wikimedia Developer For Downloading Public Domain Images

from the what-public-domain? dept

Derrick Coetzee, a software developer and an administrator of Wikimedia Commons, the media repository for Wikipedia is being threatened by the National Portrait Gallery in London. Coetzee admits that he downloaded about 3,000 high-resolution images from the site, but notes that they are all of paintings that are in the public domain (nearly all are over 100 years old). Coetzee is in the US, where he notes Bridgeman v. Corel suggests that photographs of public domain paintings do not carry any copyright, since the photograph does not add any new expression. However, such issues are not settled in the UK, and the National Portrait Gallery is insisting that the photos are covered by copyright.

On top of that, the Gallery is claiming a violation of its database right. Database rights are an unfortunate mistake in European law, that allows a copyright-like right to be held on a database, even if the entries in that database are uncopyrightable -- such as a collection of facts or a collection of public domain works. Finally, the Gallery is also claiming that Coetzee unlawfully circumvented protection methods designed to keep folks like himself from downloading the content -- and thanks to the UK's own anti-circumvention law, that too could make him guilty of infringement. Of course, that last one shouldn't apply if the content isn't actually covered by copyright, as Coetzee argues.

The whole thing, frankly, seems rather ridiculous, and a huge black mark on the National Portrait Gallery in the UK. Here was a chance to help educate the public and give people more reasons to go to the Gallery to see the actual photos, and they're trying to stomp out that kind of education through abuse of copyright law. The people who run the Gallery should be ashamed of themselves. They ought to go back and read their own mission statement:

Founded in 1856, the aim of the National Portrait Gallery, London is 'to promote through the medium of portraits the appreciation and understanding of the men and women who have made and are making British history and culture, and ... to promote the appreciation and understanding of portraiture in all media'.

How, exactly, does suing someone for getting those portraits more attention achieve that goal?

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