A big footprint September 20, 2007
Posted by Kevin Smith in : Copyright Issues and Legislation, Fair Use , add a commentThe PDF of the full report is available here.
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.
Taking a defense on the offensive August 6, 2007
Posted by Kevin Smith in : Copyright Issues and Legislation, Fair Use , 1 comment so farTechnically, copyright misuse is a defense that has been recognized in the federal courts but is not codified in our copyright law. In a misuse claim, if a copyright owner is found to be claiming more copyright protection than the law gives, that owner may be barred from enforcing any copyright protection until they stop making the exaggerated claim. Someone sued for infringement can raise the defense that the copyright owner has claimed too much and a court may find that even genuine infringement should be excused on that basis.
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.
A very expensive blanket July 5, 2007
Posted by Kevin Smith in : Copyright Issues and Legislation, Fair Use , add a commentTwo weeks ago the Copyright Clearance Center announced that it would offer a “blanket” license to college and university campus for permission to copy and distribute copyright protected material to students. The license offers to replace the time-consuming struggle to get and pay for permissions with a single yearly bill. Unfortunately, the blanket licenses apparently will not cover all, or even most, of the material frequently used by college classes. Even more unfortunately, dependence on a blanket license will further discourage university faculty members from considering whether or not their use of specific material is fair use. Fair use, like many other rights granted by law, can atrophy if it is not exercised.
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.
New speak v. old speak June 28, 2007
Posted by Kevin Smith in : Copyright Issues and Legislation, Fair Use , add a commentIt seems to be a monthly occurrence; an editorial appears in a major news outlet advocating stricter copyright legislation and enforcement. This week it was the San Francisco Chronicle, which published on Monday an opinion piece from two attorneys who have just launched a class action lawsuit against Google over videos posted in YouTube. The acquisition of YouTube by deep-pocketed Google has clearly made it a tempting target, and class actions are notoriously lucrative, especially for the attorneys, if they can get past the formidable obstacle of class certification. Authors Louis Solomon and William Hart claim to represent the interests of “large and small copyright holders whose creative works have been posted and reposted [to YouTube] without authorization.”
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.
“A Disgrace to the Forces of Evil” May 29, 2007
Posted by Kevin Smith in : Copyright in the Classroom, Fair Use , 1 comment so farAlthough it is available from lots of sources, I can’t resist adding a reference to the “A Fair(y) Use Tale” video to this site. This 10 minute remix video, constructed entirely from Disney cartoons, offers a very clever explanation of copyright and fair use while at the same time asserting the latter as the justification for the whole creation. It could provide a valuable resource for teaching students about copyright and fair use; its evident bias in favor of aggressive fair use provides a needed balance to the one-side educational material offered by the content industries.
The video, which was created by Bucknell professor Eric Faden, is available on YouTube, of course, or through the Stanford University Center for Internet and Society web site (which is the link provided above). The presence of Stanford Law School as a host site may prevent the promiscuous use of take down notices to suppress this amusing and important work; as the video itself says, Disney is notorious for using its copyright to intimidate others and Stanford may be indicating its desire to push back some against that practice.
Be sure to read the “FBI Warning” at the beginning of the video; it is not at all what we are used to seeing on commercial videos. And listen for the quote used to title this post, which is part of the explanation of fair use.
