What does deserve extended comment however, is one of the news stories that repeats a couple of common misconceptions that need to be dispelled. This report on the E-Commerce Times site offers the opportunity to clarify and correct two important errors about the DMCA and fair use.

First, the E-Commerce story quotes a source who refers repeatedly, and defiantly, to “this ruling.” This is probably just careless language, but it also re-enforces the mistaken notion that receipt of a DMCA takedown notice means that infringement definitely has taken place. In fact, a rights-holder sends a takedown notice, using very specific provisions that the DMCA added to chapter 5 of the copyright act (17 U.S.C. 512), because they merely believe that their copyright is being infringed. There is no required quantum of evidence beyond a “good faith belief that use of the material… is not authorized,” nor must a rights holder consider possible defenses to the claimed infringement. These provisions were never intended to substitute for a judicial determination on the question of infringement; they are intended, instead, to help the ISP avoid liability for any possible infringement by users of the service. The ISP does have to remove the material or block the user upon receipt of a take down notice, but they also must notify the user of the action and restore the material if the user sends a counter notice stating their own good faith belief that the removal was wrongful. Thus the notice and takedown process helps establish if there really is a conflict and gives the ISP a protected role when there is, but it leaves the resolution of the issue of infringement up to a court. The mere fact that the AP sent these initial notices is in no way any sort of “ruling” or definitive decision.

The second error in the E-Commerce story is its reference to “the fair use provisions of the Digital Millennium Copyright Act,” which, we are told, the AP hopes to clarify. There is, of course, no fair use provision in the DMCA; fair use is much older than that piece of relatively recent legislation. Indeed, fair use is a doctrine initially created by judges in the early 19th century (in the US) to mitigate the harmful effects of the copyright monopoly. The DMCA, which took effect only in 2000, does not add anything to the fair use analysis, nor does it, in theory, narrow its scope; where fair use is mentioned in the DMCA it is only to emphasis that Congress did not intend the provisions of the DMCA, which attempt to deal with some of the new issues arising in a digital environment, to alter the applicability of fair use.

This last point is important, because it reminds us that we are not dealing with any new provision about what uses are acceptable in the digital realm. Instead, the same old provision about fair use (17 U.S.C. 107), which emphasizes the privileged status of news reporting and has traditionally been held to protect short quotations, would be applied in deciding whether or not these passages from AP news stories were used by bloggers in a manner authorized by law. The assertions by AP that these uses are not fair use seem difficult to credit, but the point is that a court would have to decide the issue (if the AP decided to push that far; it is a much more costly and serious step than merely sending a takedown notice), and the standard used to make that decision would be the familiar four factors of fair use, just as they were outlined by Justice Story in 1841.

Share This

The judge has rejected a request by the Yoko Ono for a preliminary injunction that would prevent the distribution of the film. Ono claimed that the use of this short clip without her permission was copyright infringement. Given the vastly different political perspectives involved, it is unlike permission would have been forthcoming. But the judge ruled that it was also unlikely that permission was necessary, since there was a strong claim that the use was fair use. Since one of the criteria for getting a preliminary injunction is “likelihood of success on the merits,” Ono’s request was denied because the judge felt it was unlikely she would succeed on the underlaying claim that using the clip was infringement.

Transformative uses, which have recently been the subject of many, if not most, successful assertions of fair use, are those which create a non-competitive product or subject a copyrighted work to criticism, comment or parody. A parody, of course, does not compete in the same market for the original (no one buys a 2Live Crew parody song as a substitute for buying the original by Roy Orbison). Nor does the film Expelled compete in any way with the market for the recordings of John Lennon. And in a traditional transformative use case, the owner of the original may not have much desire to license the use if asked, since the proposed new use often subjects the original to criticism or ridicule (as in this case). Transformative uses are often those uses where there is a strong possibility that the copyright owner in the original work would use his or her rights to suppress the new speech; fair use is the remedy that prevents this censorship by copyright.

For me, this role of fair use in preserving copyright as the “engine of free expression” is especially clear in this case (for an explanation and discussion of this quote from Harper & Row v. Nation Enterprises, see this report from The Free Expression Project). Free speech is always hardest to accept, and most important to remember, when one disagrees violently with what is being said. In this case, I personally have little use for the claims being made in the movie “Expelled;” they strike me as inflammatory and hard to defend with real logic or facts. Nevertheless, the right of the movie producers to make those claims is inviolate, in my opinion, and it is important that they have the tools to make their case in the best way the can. Fair use is an important tool to support creative expression, whether I agree with the content of that expression or not. The arguments being made in the movie may fail, but the judge got this decision exactly right when he ruled that the producers could use the tools they did (including a small part of another’s copyrighted expression) to make those arguments.

Share This

That is why so much of the Copyright Act is dedicated to exceptions to the exclusive rights. In the Government Printing Office edition, over one-third of the text is dedicated to sections 107 through 122, which incorporate most, but not all, of the limitations and exceptions.

In international treaties, the limitations and exceptions to copyright are supposed to be subject to a “three-step test” which has its origin in the Berne Convention, initial adopted by many countries (but not the US) in 1886. The US joined Berne in 1988 and oversaw its incorporation into international trade law in 1994. As it now stands, the three step reads like this:

Members shall confine limitations and exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the rights holder. (Art. 9(2) of Berne and Art. 13 in the TRIPs Agreement)

It is an interesting question whether some of the exceptions in the US Copyright Act violate this three step test – does fair use apply only to special cases, for instance, or conflict with normal exploitation of a work? The recent emphasis our courts have placed on transformative use as the sine qua non of fair use may be a direct reaction to this three part test.

So far, only one provision of the US Copyright Act has been found to violate the TRIPs three step test – the section 110(5)(B) exemption for businesses that allows installed TV sets and radios to “publicly perform” copyrighted works for patrons of those establishments. As interesting as that case is, the discussion of how fair use fits into this framework is even more interesting and important. A recent blog post by William Patry on this subject arguing that fair use does not violate the three step test is a great primer about this discussion.

Other attention to limitations and exceptions include this discussion of a proposal made to the World Intellectual Property Organization for a formal discussion and agreement about limitations and exceptions, something the US says it is not ready for. Closer to home, of course, is the recently released report by the Section 108 Study Group, proposing changes in the US copyright exception that permits library preservation work and interlibrary loan.

Most exacting, from my point of view, is this full-day conference being held at Duke Law School this Saturday on the topic of “Copyright Limitations and Exceptions: from access to research to transformative use.” There will be an exciting group of scholars from the US and European here to discuss the various issues and problems, with a focus on practical strategies to encourage creative uses of digital content. I hope any readers who are close to the North Carolina Research Triangle will consider attending this conference, and that those who cannot will look for podcasts, which are often posted by the Center for the Study of the Public Domain.

Share This

Turnitin is a web-based service that compares submitted papers to vast database of essays available on the web and it is own proprietary database. It offers instructors a report on how likely it is that the given paper is plagiarized. Four high school students from Virginia who were required to submit their work to Turnitin or get a zero challenged the company in court. The district court’s opinion, dismissing all of the students claims, was issued March 11 and has provoked a lot of reaction, The Chronicle of Higher Education has a story about those reactions here, and William Patry discusses several aspects of the case in his blog post called “Turn-it-it and Kiss-it-goodbye.”

One aspect of the decision worth mentioning is its discussion of the claim that Turnitin infringes copyright because it adds a copy of every paper to its database as soon as the paper is submitted so it can be compared to later submissions. The plaintiffs tried to prevent this by indicating their lack of consent to have their work copied in this way on the papers they submitted, but the court found that the click-through contract they were obligated to agree to in order to submit in the first place took precedence. More on that in a moment. On the copyright issue, the court found that the company had a valid fair use defense regarding their storage and use of student work, even if the contract giving them permission had failed (which it did not).

I have been torn about the fair use analysis the court used in this case. I have a hard time justifying to myself the business model Turnitin use, although my doubts are likely bound up with broader concerns about this kind of attempt to use technology to force people to behave with integrity. But, to my mind, Turnitin’s business model is as dependant on infringement as is Grokster. The district court disagreed, finding that Turnitin made a transformative use of the works it archived for later comparision. What strikes me most about this decision is the way “transformative use” has become a talisman, invoked whenever the court wants to find fair use. The copyright statute seems to indicate pretty clearly that even non-transformative uses can be fair use, but courts are now so enamored with the notion of transformation that they are now finding it even in unlikely situations because it has become the sine qua non of fair use. This is both good and bad for higher education; some educational uses of copyrighted works seem to be purely iterative, not transformative, and fair use in those cases seems increasingly hard to argue. On the other, the more the concept of transformative use is expanded, the better it will be for educational; some of those uses that don’t seem transformative to me may well seem so to our courts.

The other, more troubling aspect of the Turnitin decision was the court’s attitude to the click-wrap license. The plaintiff students had no choice but to click through the license; they faced a zero if they didn’t and there was no way to communicate with Turnitin until they had accepted the license. Nevertheless, they tried to make their objection to the term that allowed Turnitin to copy and save their work as soon as possible; they included a notice with their paper that said they did not consent. Tough luck, said the court; you agreed to the license and you have to live with it. This strict enforcement of a “take it or leave it” license even when the party on whom it is imposed objects in a timely way seems to make a mockery of the notion of a contract as a bargain that may be “unconscionable” if there is no meaningful chance to negotiate.

If we need further confirmation that the court was aiming at a particular result and disregarding a reasoned discuss of the law, there was its astonishing dismissal of the plaintiff’s argument that, as minors, contracts they entered into are voidable. The court recognized that this was the usual rule in contract law, but said that the plaintiffs could not avail themselves of it because they had accepted the “benefits” of the contract. What benefit had they accepted, I wondered. Standing to sue, the court replied, the right to bring the case to challenge the contract itself. By this logic, of course, no contract could ever be challenged on the basis of “infancy.” Such absurd and circular reasoning can only serve, as Bill Patry says, to increase the cynicism so many people feel toward our courts.

Share This

As has been said before on this site, it is probably passed time that our copyright law be throughly revised and made flexible enough to address new technologies that have come into existence since 1978 as well as to anticipate and accommodate those that have yet to be invented or widely-used. But there is not a lot of political will to undertake a comprehensive copyright reform these days, and the overwhelming influence the biggest content companies seem to wield with major players in Congress suggests that comprehensive reform might do more harm to the interests of consumers and, especially, educators, then good. Until we can reasonable hope for through-going reform in a positive direction, the kind of incremental changes suggested by Public Knowledge seem like the best direction to focus our energies. Although it is fair to call these proposed reforms “more modest,” some of them would be quite radical in practice.

Two of the suggestions made by Public Knowledge will be quite familiar to those who follow copyright issues — fair use reform that would make the four factor test more usable and sensible in today’s digital environment and orphan works legislation to reduce the risk of making productive, socially beneficial works that are not currently subject to commercial availability and whose rights owners are AWOL. One proposal that I have not written about before in this space, but have discussed elsewhere, is that copyright holders should be required to give notice to consumers whenever they are imposing contractual or technological restrictions on a work that takes it outside of the uses reasonable expected under copyright law with its exceptions, including fair use. The principle that consumers should know what they are buying and whether they an use it for reasonably foreseeable purposes is actually quite basic in our commercial law, and neither contracts nor DRM systems should be allowed to defeat reasonable expectations of a purchaser without prior notice.

All of these suggestions — the remaining three are limits on secondary liability, protections against copyright abuse and simplified, fairer licensing rules — deserve our attention and support, at least until a more comprehensive and fair reform of copyright seems possible.

Share This

Not, apparently, for Access Copyright, the Canadian copyright licensing agency that, like its US counterpart the Copyright Clearance Center, collects and distributes permission fees for various uses of copyrighted material. Access Copyright has recently filed a lawsuit seeking 10 million dollars – the largest damages award ever sought for copyright infringement in Canada – from the office supply chain Staples. Their claim is that Staples should be liable for infringing copying done by customers on equipment provided by the stores. There is a news report on the suit from the Canadian Press here, a negative assessment from P2Pnet here, and a comment from a Canadian professor of IP and technology law here.

To prove secondary liability on the part of Staples, Access Copyright will have to convince a court that Staples should be held responsible for copying done by its customers. As Professor Geist points out, that may be a difficult hurdle to clear. In Canada, as in the US, liability for those who merely supply the equipment to make copies is rare; the US provides statutory protection for libraries in such cases and the Canadian Supreme Court has established a similar “presumption” in favor of Canadian libraries. Explaining why that presumption should not apply to Staples will be a challenge for this lawsuit.

But the issue that should really worry us, the issue that makes this a radial attempt to change the terms of the copyright bargain rather than merely a desperate ploy to protect a new source of revenue as traditional sources dry up, is that Access Copyright will have to show that the personal copying done by customers is direct infringement of copyright. Only if that is true can Staples be held secondarily liable for providing the means for that infringement. But personal copying has been almost universally believed to be fair use (or, in Canada, “fair dealing”). Students have made single copies of journal articles and book chapters for their own study for as long as photocopies have existed, and consumers have made personal copies of TV shows with their own VCRs with the blessing of the US Supreme Court. So what has changed?

The clue is in the fact that this suit was brought by a licensing agency, not by publishers or authors. What we are seeing here is a new assertion that personal copying was never legal, only tolerated by copyright owners until they could create a mechanism to collect payments. The same digital technologies that have allowed so much infringement also now allow content owners to efficiently offer licenses and collect payments for individual uses that could never have supported a market before. Although it is still more efficient to sue the alleged contributory infringer instead of the consumer who is the direct infringer, this saber rattling by a licensing agency should tell us quite clearly that content owners intend to move toward a pay-per-use model. If such suits are successful, every consumer-made copy logged at a store or even at a library photocopier could be subject to small payments, which would be administered through an online licensing agency.

At a recent conference in Washington, DC, Cary Sherman, the President of the Recording Industry Association of American, refused to acknowledge that personal copying of a music CD for listening on an individual MP3 player was fair use. Instead he said that this likely was infringement, but that the industry had agreed internally not to pursue such cases. The Canadian lawsuit suggests that, if a precedent can be set regarding the much less contested area of personal photocopying, any such forbearance around consumer copying will quickly become a thing of the past.

Share This

The PDF of the full report is available here.

In the past I have objected to claims made by the copyright industry about the amount of money lost through unauthorized file sharing or piracy. Those figures, I have suggested, are over-inflated and conjectural because they rely on lost opportunity costs and do not account for the economic benefits that might be gained from these activities. Now that the CCIA has decided to look at the economic equation from the other end and examine what benefits fair use (legal uses, as opposed to piracy and file-sharing) provides to the economy, it seems fair to ask how reliable its figures are.

The study, which was done by consultants from Capital Trade, a firm specializing in consulting and analysis of international trade, identifies “core industries” that “derive a significant amount of their current business from the demand generated by fair use and the Internet.” It is hard to argue that search engines, for example, have fair use at the center of their business. Other sectors, like consumer electronics, certainly are dependent on fair use, but one could argue that both purchased content and “pirated” content reduce the share of that industry that is dependent on fair use. Education, in this report, is also apparently identified as a core industry, since it depends heavily on the non-copyrightability of facts as well as other fair use freedoms. Other non-core sectors are also examined when their businesses “facilitate the output of the fair use core.” The identification of these industries and the measures used to evaluate their economic impact, are based on the WIPO recommendations for studying the role of knowledge industries in the world economy.

In so far as its conclusions are understood to show the economic impact of industries that would be significantly harmed by a narrowing of fair use, it seems a careful and clearly defensible effort to remind us that usability of information is as important to oar economy as is its creation. Without fair use, many of these industries would not go away altogether, but they would be badly hampered and would contribute much less to the U.S. economy. We have heard so much about the important economic impact of the industries that create copyrighted content; it seems like a vital counter-balance to consider the impact of those industries that benefit from the legal, unlicensed use of that content.

Share This

In a recent complaint to the Federal Trade Commission, however, a computer industry group took the copyright misuse defense and went on the offensive. The Computer & Communications Industry Association has filed a complaint with the FTC alleging that the National Football League, Major League Baseball, NBC/Universal and several other large content producers are engaging in unfair and deceptive trade practices by claiming copyright protection they are not entitled to. One example, discussed earlier on this site, is the copyright warning read on sports broadcasts that claims to prohibit “accounts and descriptions of this game” without written permission from the sports organizations. In spite of this dire warning, the NFL cannot prevent a water-cooler discussion of last night’s game; accounts and descriptions of the facts of the event are fine unless they are “substantially similar” to copyrighted expression, and even repeating the words of a broadcast description may be fair use, which, by definition, is permitted without authorization.

What the CCIA essentially is complaining about is copyright misuse – exaggerated claims designed to intimidate consumers and prevent them from doing things they are perfectly free to do under the law. On offense it is called an unfair trade practice; on defense it would be copyright misuse. But whichever side of the ball we are on, the idea that copyright claims can be overstated is important; consumers and users should understand the genuine contours of copyright protection and take full advantage of the educational and creative uses that the law does permit.

Read an Electronic Freedom Foundation blog post on the filing here.

For those who are interested, you can find the complete complain here.

Share This

In his current column in the Financial Times’ “New Technology Policy Forum,” Duke Law Professor James Boyle makes this point succintly and eloquently. He explains much more clearly than I can why the price tag on such a license, regardless of its monetary cost, may be much too high. His column should be read by anyone who wonders if a blanket license might relieve the uncertainties and stresses of relying on fair use. The consequences of such a decision, Boyle suggests, might in the long run be far more harmful to higher education.

Share This

Solomon and Hart make a number of conclusory statements in their editorial that deserve closer scrutiny. For one thing, they repeatedly assert that YouTube’s “very business model depend[s] on the unauthorized exploitation of copyrighted material.” They say there is “no legitimate constituency” for that business model and ask, rhetorically, what Google thought was the main source of value when they bought YouTube if not “the copyrighted works of others.” All of this ignores the large number of user-created works that are posted to YouTube with explicit permission granted by the creator/user who uploads the video. Of course YouTube depends on copyrighted works created by others, but many of those creators want to have their work available in this forum; these creators are not being exploited, they are being offered an outlet for their creativity that would not otherwise be available.

By ignoring the legitimate users of YouTube, Solomon and Hart reveal that the fundamental purpose of this lawsuit, like that filed earlier this year by Viacom against YouTube, is to undermine some settled legal principles. This kind of attack on new techonologies dates back into the 1970s, when some movies studios sued to prevent the distribution of consumer video recorders. The Supreme Court ruled that a technology could not be suppressed if it had a “substantial non-infringing use.” YouTube obviously has such uses, but the various plaintiffs are clearly hoping that our now more business-friendly federal courts will reverse or revise that standard to give content producers stricter control over technological innovation.

Another target of the lawsuit is the “safe-harbor” provision inserted into the Copyright Act in 2000 by the DMCA to protect online service providers from liability for the actions of their consumers. The content industry is hoping that the 2005 Supreme Court decision in MGM v. Grokster offers an opportunity to reverse in the courts what Congress did by legislation and force online hosts, who are easier and wealthier targets than individuals are, to assume the risks and costs for user behavior.

Finally, Solomon and Hart assert in response to an anticipated defense that “no one has a First Amendment right to infringe” copyright. This is true as far as it goes, but it overlooks the fact that some apparent infringements are immunized by law precisely because of the danger that copyright could be used to suppress legitimate and socially desirable speech. Sections 107-122 of the Copyright Act all enact “limitations on exclusive rights” designed to allow conduct that would otherwise be infringing but which Congress believed should be protected. The Supreme Court has said that “the Framers intended copyright itself to be the engine of free expression” (Harper and Row v. Nation Magazine, 471 U.S. 599 (1985), and YouTube can legitimately argue that the opportunity it offers for such expression gives it a social value that tips the copyright balance in its favor.

Share This