Don’t let this happen to you. January 27, 2009
Posted by Kevin Smith in : Authors' Rights, Copyright Issues and Legislation , 1 comment so farI admit that what caught my eye in this story is the unique name of the band involved — Death Cab for Cutie — and the fact that I know this to be one of my twenty-year-old niece’s favorite acts.
All that aside, the story is an object lesson in the problems with transferring copyright without careful consideration, and versions of this problem are occurring everyday in academia.
What happened to Death Cab for Cutie is that they posted an embedded YouTube video of themselves singing one of their own songs on their own website. Except, of course, that they do not own the rights in their own music, having transferred those rights, in one way or another, to their record label. So, as this report indicates, they received a “takedown” notice alleging copyright infringement from their own label, Warner Music Group. The video is gone now, and DCFC is not able to share their own music with their fans, even though all sides must realize that doing so would increase sales.
Likewise, numerous academics have assumed that they can post their own work to personal websites, even after they have signed publication agreements. When those agreements transfer copyright, however, this assumption is likely to be wrong. There are lots of stories, unfortunately, of academic authors receiving similar “cease and desists” letters to the one the band got, where their own publishers inform them that, as the (now) owners of the copyright in the scholars’ work, they do not permit the authors to post the works they wrote.
The lesson here is twofold. First, once you sign a publication agreement, it controls the distribution of rights and it is dangerous to assume you can continue to use your own work as you wish. It is important to read these agreements and to abide by their terms. Second, however, is the equally important lesson that one can negotiate the distribution of rights within these agreements. Don’t wait till after the fact to read the agreement; read it before you sign and negotiate for the right to use your own work in ways you will want or need in the future.
Death Cab for Cutie probably had little flexibility in their relationship with their record label and, unfortunately, they did not learn until late in the game that they had sold their rights. For academic authors it is much more likely that, with a little forethought, similar problems can be avoided. All it takes is attention to the terms of a publication agreement and consideration of exactly what rights will be beneficial for you, as an author, to retain.
Obama, (c) and the CCC January 22, 2009
Posted by Kevin Smith in : Copyright Issues and Legislation, Open Access and Institutional Repositories , add a commentAs a number of media outlets reported, the White House webpage changed over to an Obama presidency before nearly any other action was taken by the new administration. In fact, the initial posts on the new blog that fronts the page were dated Jan. 20 at 12:01 pm, only one minute after the Twentieth Amendment says that the new president’s term began.
From my (warped) perspective, the most interesting part of this new page is its copyright policy. For one thing, it does not appear that the Bush administration had any copyright policy on its web page; at least, there was no copyright policy link on the three instantiation of WhiteHouse.gov that I looked at on the Internet Archive’s WayBack Machine (yes, the Bush administration is already “waybacked.”). There is a privacy and security policy linked to those pages, but nothing about copyright. The presumption is, therefore, that the White House was claiming copyright in whatever was open to protection on those sites, which probably was not much.
By contrast, the Obama White House begins its policy by noting that materials on their site that are produced by government employees as part of their official duties are not subject to copyright protection. This was true during previous administrations, of course, but it is nice to see official recognition of the fact.
Perhaps most exciting, however, is the use of a Creative Commons Attribution license for all content found on the White House page that is created by third parties, “except where otherwise noted.” For the White House to employ a Creative Commons license is, I think, a wonderful affirmation of the value of the CC license as a tool and a recognition of the fact that there are more ways for creators to serve their own interests than simply to rely on “one size fits all” copyright protection. Here the White House sets an example that many in the academy ought to follow; I am very proud of the fact that the Duke University Libraries placed most of their web content under a CC license over a year ago and now the Obama administration is, presumably, emulating us.
I am much less comfortable, however, with the last paragraph of the White House policy, which asserts a unilateral right under the DMCA to terminate access for “repeat infringers.” There is no indication of what kind of infringement could get one banned from the White House site, only a vague admonition to “respect the intellectual property of others.” The concern is that, if the White House takes the same approach as many other site owners, mere accusations of infringement could make one a repeat infringer, and little account would be taken of the possibility of fair use. Also, no mention is made of the possibility, allowed for in the statute (see, especially, section 512(g)), that an accused infringer could dispute the accusations and have his or her comments or whatever re-posted until such time as the accuser decides to file suit.
The Obama administration, in its website and in other policy statements, has indicated a new commiment to openness and accountability. The embrace of a CC license, and campaign statements supporting fair use, offer real signs of a balanced approach to intellectual property protection. It is to be hoped that these signs point in the direction the administration will move, and that that last paragraph of the copyright policy is just obligatory and carelessly worded boilerplate.
Debating Internet regulation January 19, 2009
Posted by Kevin Smith in : Copyright Issues and Legislation, Technologies , 2commentsLast week Federal Communications Commissioner Robert McDowell spoke with a small group of Duke administrators about a wide range of topics. In response to one question (which was, I have reason to know, deliberately provocative), Commissioner McDowell, who is a Duke alum, gave a pretty ringing endorsement of the unregulated Internet. He referred approvingly to the history of the Internet as an open environment that has, throughout its history, been free of government regulation.
McDowell chose to ignore, in these comments, the pre-history of the Internet as DARPAnet, a creation of the Defense Department’s Advanced Research Projects Agency. But really his position is the one from which I want a government regulator to start; a stance of healthy skepticism toward regulation is the best way to ensure that careful thought proceeds regulatory enactment. While suspicion of regulation is almost always a justified foundation, however, it is not necessarily the final word on the matter.
The context of the question Commissioner McDowell was answering was ‘Net neutrality, and in that context it is particularly easy for the FCC to oppose regulation, since that is the position favored by the major telecoms. But it is far too simple to say that at long as the government keeps its hands off, the Internet will stay unfettered and equally accessible to all. Commissioner McDowell clearly knows this, and his assertion was that competition is the best way to prevent private entities from closing off the Internet pipes to certain types of traffic. But he also noted that the economic downturn has delayed the implementation of additional pipes, and it is still true today that the backbone of the Internet is in the hands of only a few major corporations.
The fear here is that these companies may find it desirable to implement differential pricing — charging more for certain kinds of traffic — and that regulation might be necessary to preserve the openness that has, so far, been a hallmark of the Internet. ISPs might, for example, decide that voice-over-internet phone services compete with another part of the business of their parent telecoms and introduce higher prices for VOIP to choke off such services. UPDATE — As this report indicates, this is a very real concern that the FCC continues to monitor
A similar decision to charge more for high-bandwidth uses could be implemented in a misguided attempt to prevent video piracy. Illegal video downloads, of course, use a lot of bandwidth, but so do perfectly legal file transfers. The danger with these kind of “solutions,” whether they are differiential pricing, filtering or agreements between ISPs and content companies, is that they are likely to exclude too much content and too many users. When this happens, the free speech goals which copyright is meant to serve are undermined, often in the name of copyright protection.
The recent announcement of a new anti-piracy strategy from the RIAA, and the continued behavior of YouTube toward repeat notices of copyright infringement, illustrates this danger. The RIAA has agreements with some ISPs (it is not saying who) to cut off Internet access for those accused of repeated illegal downloading. But we know that the RIAA has not been very careful about its accusations in the past, so there is a real concern that users will lose access based on inaccurate information and poorly substantiated charges. And even before the RIAA’s new strategy is put in place, we know this kind of abuse is happening. Here is a report from the ArsTechnica blog about a case where what is quite likely to be fair use — the posting of film clips on YouTube to augment an online critical essay — has lead to the author having his YouTube account shut down because of DMCA notices that claim infringement but do not have to prove it or to take into consideration any of the myriad ways the uses on YouTube might be justified. By disconnecting users after “three strikes” based on mere accusations, YouTube is already implementing the practice the RIAA is negotiating with ISPs. And we can see that that process is ripe for abuse.
The moral here is that regulation of the Internet is a complex topic. Reliance on the market alone will not always guarantee that the ‘Net will remain open and accessible on an equal basis for all. As more and more basic and vital information and services become Web-based, such access must be preserved. The trick will be to figure out the right moment and the right way to preserve access, but the time will come when those decisions must be faced, since we have already seen that reliance on market forces and good will alone will not suffice.
What is DRM really good for? January 10, 2009
Posted by Kevin Smith in : Copyright Issues and Legislation, Digital Rights Management, Technologies , 3commentsAs the Library of Congress considers new exceptions to the anti-circumvention rules that legally protect the DRM systems that are used by many companies to lock up digital content of all kinds, it is helpful to consider if those protections really accomplish what they were intended to.
Digital Rights Management, or electronic protection measures, are technological locks that “physically” prevent uses that are infringing, as well as many uses that would not be infringing if they were possible. The justification for using DRM is that it is necessary to prevent the widespread infringement that the digital environment enables, and thus to protect the revenues of content creators. Those revenues, it is argued, provide the incentive that keeps Americans creating more movies, music, books, etc. This purpose seemed so important in 1998 that the Digital Milleniuum Copyright Act included rather draconian legal protection for DRM systems, making it illegal to circumvent them even when the underlying purpose of the use would itself be legal. But the juxtaposition of two recent blog posts raises an interesting question about whether DRM really does what is claimed, and whether what is claimed is really its purpose in any case.
First is this report from Canadian copyright professor Michael Geist noting that for the third straight year sales of digital music (a prime type of content “protected” with DRM) have grown faster in Canada than they have in the United States. This growth comes in spite (?) of the fact that Canada does not have the same legal protections for DRM systems that the US does. Apparently the incentives for creativity are just as strong, or stronger, in Canada, where circumvention is not punishable, as they are in the US, where we are told that those who circumvent and those who market the technology to circumvent must be stopped lest creativity grind to a halt. The reality, as Geist points out, is that “copyright is simply not the issue,” and government intervention to drastically strengthen the copyright monopoly has not provided the promised benefit.
So why is DRM really so important to big content companies? On the Electronic Frontier Foundation’s blog, Richard Esguerra gives us a more convincing answer when he notes that Apple is finally dropping DRM from the music files it sells through its iTunes store. The timing, he suggests, shows that the big content companies really use DRM to eliminate competition and enforce a captive market; as soon as that purpose becomes moot, the companies drop the DRM. It is no surprise that DRM is a marketing problem, especially for music, where it often prevents users from moving files from one device to another. As long as the expected benefits in reduced competition outweighs the loss of sales, DRM is defended as a vital part of the copyright system. But it is abandoned without a qualm once it no longer serves that anti-competitive purpose and threatens instead to hamper profits.
If DRM systems really are being used primarily to suppress competition and prevent innovation, they are working directly in opposition to the fundamental purpose of copyright law they were sold to us to support. Read together, these two reports suggest that tinkering with exceptions, as the Library of Congress is charged to do every three years, is not enough; instead, the value of the whole idea of providing legal protection to DRM should be reexamined.
