RIAA Thinking Of Backing Righthaven

from the can-they-get-any-more-out-of-touch dept

Every time you think the RIAA can't make things even worse for itself... it does. The latest is that it's apparently considering helping Righthaven out. Righthaven! The company that has become the total laughingstock of the copyright world, that is on the losing end of a bunch of cases and is desperately trying to get out of paying all the attorneys' fees awards that are being given to the companies, individuals and sites it has sued. Of course, as some have noted, the good thing about Righthaven is that it has tee'd up a bunch of rulings that will be useful precedents in other copyright cases.

And that's what has the RIAA scared.

In particular, the RIAA is freaked out about a couple of rulings saying that even reposting full articles can be fair use. That has the RIAA shaking, because the big labels hate the concept of fair use. The major labels are still upset at the idea that the Campbell vs. Acuff-Rose ruling means that commercial use can still be fair use. And they love the the Bridgeport Music ruling that wasn't about fair use, per se, but did take away de minimis use, saying "Get a license or do not sample."

So, now the RIAA is realizing that Righthaven -- and in particular the Hoehn ruling, which lays out in great detail why the full use of a copyrighted offering can still be fair use -- is suddenly an important battlefront in its war on fair use. Just having the line from the case "wholesale copying does not preclude a finding of fair use" freaks the RIAA out.

So we've now seen that RIAA's chief apologist litigator is suggesting that perhaps the RIAA is going to get involved in the fight (from an interview behind a paywall, so we'll just quote her words) concerning the fair use finding in Hoehn:

"From our perspective, that just can't stand."

That certainly suggests that the RIAA is thinking of inserting itself into the appeals process here. Probably with an amicus brief, but it makes you wonder if they won't also consider figuring out ways to fund Righthaven to keep it afloat. There are already quite reasonable concerns that the company is effectively insolvent due to all the legal fees it owes to those it has sued. Either way, when you're at the level where you're joining forces with Righthaven, you've really hit the bottom of the barrel.

Filed Under: commercial use, copyright, fair use, full work, hoehn, jennifer pariser, music
Companies: riaa, righthaven

Youtube, Creative Commons And Why It's OK For You To License Your Artwork Any Way You Want

from the it's-still-yours-isn't-it dept

Youtube (finally) introduced a Creative Commons licensing option for uploaders on June 2nd, allowing users to make their original works freely available to others to remix and build upon without worrying about infringement charges down the road. At this point it's only implemented a CC-BY option, but it expects to introduce others further down the road. The key to this license is that it allows others to use these licensed videos commercially, which has proven to be a sticking point for certain parties with a vested interest in keeping uploaded contributions licensed solely to the creator.

Two dissenting opinions appeared nearly immediately. The first argument against the CC-BY license appeared at the Viralfier blog, where Scott Burke has decided that CC licensing is the worst thing ever (or "evar"), running down 6 reasons why you shouldn't use this new option:

Take another example. MasterCard wants to use your sweet snowboarding video in a worldwide advertising campaign. Great! Except you already gave the rights away, when you tagged it with a Creative Commons license. You might get a brief attribution at the bottom of the ad — but wouldn’t you also want a licensing fee?

Well sure, Scott. Who wouldn't? But it's not as if the video was doing much on its own, all locked down and whatnot. And hindsight, while having perfect 20/20 vision, is hardly what one would call a "business model." There's also exposure and the fact that the original video still belongs to you.

His next point deals specifically with the "exposure" aspect, showing how that doesn't work either:

klaatu42‘s recent hit viral video, Ultimate Dog Tease (you know, “The maple kind?”), has received 35 million views to date, and his channel has 385,000 subscribers. The source video that it’s based off of, is by IcePrincessXXIV. klaatu42 gives her about as prominent a link as you can get in the video.

How many subscribers did that translate into for IcePrincessXXIV? 600. A full 0.15% of the action.

Those are admittedly terrible numbers, but is counting subscriptions really a viable measurement? I watch tons of videos (and see tons of overlaid ads) on Youtube and I think I'm subscribed to maybe two channels. (And that's just me. Add in my family and everything goes exponential.) Does this mean that someone's successful use of your video instantly translates to jacksquat on your end? I hardly think so.

Points 3 and 4 deal with two familiar "arguments," the first being that if you give something away for free, you obviously think your artwork is worth nothing. This fallacy is hardly worth arguing but can anyone out there think of anything valuable that's being given away for free as part of a hugely successful business model? (Try Googling it.) The other has to do with your limited legal recourse in cases where your video has been misused or infringed upon. Good point. Regular copyright holders never have these problems and their legal battles run very smoothly because of that fact!

The real reason for this post emerges in point 5, where Scott encourages readers to join Viralfier's closed beta. Because Viralfier is "a startup which is developing a 'game-changing toolkit for creating and marketing viral videos.'" Hmmm. Suddenly, this advice seems a tad off. (Point 6 seems to have something to do with making an 8-bit cat "cry." Double-hmmm.)

The second opinion is more of the same, but much briefer: Won't work. Too crowded. Not interested. I ingested several grains of salt (80% of my RDA for sodium) when greeted with "ReelSEO: The Online Video Marketing Guide" upon opening this link. 

Of course, anti-CC sloganeering and misinformation-spreading is old news at this point. Another conflicted and interested party, ASCAP, spent part of last year trying to build a warchest to fight Creative Commons. The Portuguese Socialist Party attempted to outlaw CC licensing, thus making it illegal for artists to give their work away for free. Several others have also stepped up to the plate to take a swing at Creative Commons, claiming that it is "anti-artist" and that Creative Commons licensing "has put a large number of creatives out of business."

Why do they care? Or, more realistically, why do they pretend to care? 

Two reasons:

1. In their minds, art is always zero-sum. If someone takes your artwork and builds on it successfully, then it must logically follow that no one but this "someone" will ever be able to make money from that particular piece of art. Apparently, artwork can be "used up."

2. The gatekeepers and artists tied to these systems can't compete with free. This isn't necessarily the kept artists' fault. They often have no say in the matter. But because the industries aren't interested in competing with free, then the free option needs to be removed.

It gets uglier when you, as an artist, go head-to-head with this mindset. The accustations will fly. "You obviously feel your artwork is worth nothing." "Don't you care what happens to something you created?" "There's no legal recourse with Creative Commons." "You must be an idiot/untalented hack if you don't do things the way they've always been done."

I wonder why they just can't let artists distribute their art the way they want to, rather than using hyperbolic statements to FUD-up the debate or humiliate underinformed artists into doing things their way. Is creative work inherently "worthless" if you can't immediately apply a price tag to it? Why does it all boil down to "price" and "control"?

But the most irritating aspect of this so-called "debate" is the hypocrisy. All this effort on "behalf" of artists is nothing more than a completely condescending effort to save "ignorant" artists from themselves. And for what? A chance to play ball with a bunch of gatekeepers who care more for their profit margins and quarterly sales than they do about 99% of the artists they "represent?" It's one thing to run your own industry into the ground. It's quite another when you disparage other options solely to benefit your own system.

That goes for you, too, Viralifier and ReelSEO.

Filed Under: commercial use, copyright, creative commons, culture, videos
Companies: youtube

Yet Another Book Comes Out Celebrating Copying... But Refuses To Let You Build On It

from the too-bad dept

Just recently, we wrote a review of the book Copycats, and it appears there's already another book (a copy?) coming out that is also talking about copying -- but in a different context. Glyn Moody points us to the news that there a new book, by Marcus Boon, called In Praise of Copying, and to live up to that spirit, Harvard University Press is offering a free PDF download of the book (though, I just tried it and it wouldn't download for me). They've also placed the book under a Creative Commons license, but I'm somewhat disappointed to discover that the specific license is not only non-commercial, but also they've put a "no derivatives" limit on it. That's a bit shameful, honestly. One of the reasons why copying is so prevalent and so important, is the ability for others to build on the work and do more with it. It's too bad that a license like this actually takes away from the book in question, and makes me question the overall premise.

Filed Under: books, commercial use, copying, marcus boon

Who Owns Your Class Notes? Cal State Threatens Students Who Sell Their Notes

from the who-owns-your-mind dept

SongLifter points us to the news that the California State University system has sent a cease-and-desist letter to the site NoteUtopia, for enabling students to buy and sell various class notes (among other things). On top of that, it has sent emails to students at its universities, warning them that using a site like NoteUtopia can result in discipline -- including expulsion. There is, in fact, a provision California State education code that prohibits preparing, selling, transferring, distributing or publishing notes or recordings of lectures for "any commercial purpose."

Now, I'm sure some will defend this as either (1) a way to stop cheating or (2) because of the supposed, if ambiguously explained "evils" of "commercial use," but it does seem a bit troubling to threaten the website itself for this, or to tell students that they cannot sell their own notes. The threat of "cheating," via others' notes has always seemed overblown to me. You still need to actually learn the material to pass the class, and if you can learn it better via the notes of others, more power to you. I would guess that it's actually harder to do things that way since the very act of note taking is what helps many people learn in the first place. As for the commercial use issue, again, I'm sort of at a loss for why this matters? If there really is a market for notes, then what, exactly, is the problem?

In the end, I'm just left scratching my head in wondering why the university system should care about this at all, when in most cases, all this will do is provide another source of information for students who wish to learn something.

Filed Under: cal state, california, class notes, commercial use, education
Companies: noteutopia

CBC Stops Using Creative Commons Music Over Concerns About Commercial vs. Non-Commercial Use

from the clear-as-mud dept

A whole bunch of you have been sending in variations on the story, first highlighted by Michael Geist that the CBC (Canada's public broadcasting offering) has stopped using Creative Commons music in its podcasts. That was first revealed in the comments to a recent show, when someone asked why there were no links to Creative Commons music (something the show had apparently done before). In response, Dan Misener wrote:

There's simply no Creative Commons music used in this episode. By management decree, CBC podcasts are no longer permitted to use CC music. Instead, we're using the APM Music library (http://www.apmmusic.com/), which is copyright cleared and fully licensed by the CBC.

People quickly (and rightly) started complaining that this was ridiculous, and then Lily Mills from the CBC tried to provide more info, saying:

It turned out that our use of Creative Commons licensed music was going against some of the details in collective agreements we hold with certain talent agencies. As such, we had to discontinue our use of it.

Of course, that doesn't make much sense. What sort of agreement would forbid you from using Creative Commons music? Later on, Lily tried to clarify, and said that APM was just more cost effective:

I asked around and it sounds like APM was the most cost effective choice for production music. We're actually simply piggy-backing off the use license acquired from CBC Television (a license that can be used for the entire network).

Again, this makes no sense. The Creative Commons music is free to use, so, how could that not be cost effective?

Eventually, Chris Boyce, the Programming Director for CBC radio chimed in to explain, that it's really about problems with "commercial use" restrictions on some CC music:

The issue with our use of Creative Commons music is that a lot of our content is readily available on a multitude of platforms, some of which are deemed to be "commercial" in nature (e.g. streaming with pre-roll ads, or pay for download on iTunes) and currently the vast majority of the music available under a Creative Commons license prohibits commercial use.

In order to ensure that we continue to be in line with current Canadian copyright laws, and given the lack of a wide range of music that has a Creative Commons license allowing for commercial use, we made a decision to use music from our production library in our podcasts as this music has the proper usage rights attached.

Now, that makes a lot more sense. The early responses didn't make much sense. And this is perfect timing as we've just been having some discussions on this very topic, explaining why commercial use restrictions might not be such a good idea, and even noting that I'm often hesitant to use CC content that has a commercial use restriction because almost anything could be seen as commercial use at times. While it's unfortunate that the CBC won't be using CC content in certain areas any more, perhaps this will give more people reasons to rethink the value of commercial-use restrictions. I would guess that most of the artists featured in CBC podcasts who used CC licenses were happy about that exposure. Now they'll be missing out because of their worries about commercial use.

Filed Under: cbc, commercial use, creative commons, licensing, music, podcsts
Companies: cbc, creative commons

Is Uncompensated Commercial Use Of An Artist's Content Really That Bad?

from the free-promotion dept

We've discussed a few times how the whole distinction between "commercial use" and "non-commercial use" can be somewhat arbitrary. Even though many Creative Commons supporters insist that a "non-commercial" license is the way to go, there are some good arguments as to why such a limitation isn't a good idea either.

Long-time Techdirt reader SteelWolf sent in a blog post he recently did on the subject, where he makes the argument that uncompensated commercial use of an artist's work isn't something to worry about. The idea that some company will come along and "profit" from your work without giving you a cent is misguided, because there are all sorts of opportunities for you to take advantage of such a use directly yourself:

A budding musical artist writes and records a song, putting it into the Public Domain/copyleft on his website for his fans to share and enjoy how they wish. Somebody from a major television network finds the song and use it in a new show without even giving credit. The show goes on to become a hit, making the network millions while the musician remains poor. How should he respond?

First of all one has to understand that it is highly unlikely that the show was successful solely because of the inclusion of the song. Commercial success does not suddenly mean money is owed. While it may have been nice to get free money (royalties and the like) from repeated airings of the show, it is not that but the lack of proper attribution that is the real cause for frustration.

Assuming the network will never deign to correct its mistake, I think one of the most important things to do is use the internet connect the song and show back to the artist. If the song really brought that many people to the show, they are likely to start searching for it online. Something like a post on the artist's website will show up clearly in search results, and it gives the artist an opportunity to direct new visitors to free downloads of the song, concert dates, and his other reasons to buy (perhaps tweaked to appeal to fans of the show). It's also a good idea to have a way for people to send donations.

Granted, these things aren't going to make you rich, but then neither are royalties. What it does do is save the artist tons of money in legal costs trying to fight the network, and help build his name as somebody who creates quality music and expand his fanbase -- all despite the network's "oversight" in crediting the person behind the work.

On top of that, we've seen over and over again, that when a company makes use of someone else's work for such uses without properly crediting the artist, it usually doesn't take much for that word to spread, and get more attention drawn to the artist. The artist can put up a blog post, noting that the TV show didn't credit him or her, and that even helps the story spread as well. It's yet another case where social mores work better than not just copyright, but non-commercial Creative Commons license as well.

And, with that, we'll leave the last word to Nina Paley:

Filed Under: commercial use, noncommercial use

Just Because You Make Money, It Doesn't Mean You Lose Section 230 Safe Harbors

from the well,-that's-good dept

When talking about the importance of Section 230 safe harbors, one thing I've seen multiple people declare is that if a site earns money directly from content on a site, such safe harbors no longer apply. However, a recent court ruling points out this is simply not true. The case involved New Jersey's attorney general suing an online ticket reseller because some of the site's users had offered concert tickets for a Bruce Springsteen show before they were even available. But rather than going after the folks who actually posted/sold the tickets, the focus was on the site, TicketNetwork, which is operated by CheapTickes and branded by Orbitz. One of the arguments used against the site, was that since it made money on every transaction, safe harbors like Section 230 do not apply. Thankfully, the court rejected that:

The fact that the defendants charge "service" or "administrative" fees is irrelevant to the CDA analysis. Plaintiffs seek to enjoin defendants from "advertising and selling concert tickets to consumers without actually having those tickets in their possession or control." This conduct, however, conduct [sic] fits squarely within the CDA's purview.

Nice to see a court get things like this right. As Eric Goldman notes above, it's especially surprising, because courts rarely side against the government in so-called "consumer protection"-type lawsuits, such as this one.

Filed Under: commercial use, section 230
Companies: cheaptickets, ticketnetwork

Lily Allen: It's Ok To Sell My Counterfeit CDs, Just Don't Give My Music For Free

from the confusion dept

Dark Helmet alerts us to the news that our good friend Lily Allen is back in the news discussing file sharing again. Tragically, it does not appear that she's used her "time off" to better understand copyright issues very much. Unlike nearly everyone else who complains about copyright infringement, she's apparently "all for" infringing on her copyrights, just so long as you pay someone -- even if it's the guy on the street selling the counterfeit CDs. Seriously:

"If someone comes up with a burnt copy of my CD and offers it to you for £4 I haven't a problem with that as long as the person buying it places some kind of value on my music."

Yes, so while some musicians have said they're fine with non-commercial file sharing, but are against anyone selling their unauthorized works, Ms. Allen seems to have taken the opposite approach. Counterfeit all you want, just as long as you profit from it. Yeah. Someone should explain to her the difference between price and value, and also the benefits of word of mouth marketing. But, it doesn't seem like she's much interested in actually understanding this stuff, so if you want to help her understand, maybe go set up a shop selling burned copies of her CDs, and see what happens.

Of course, if we take this seriously, it shows how little she's thought this through. Her earlier complaint was that when people file share, they don't provide money back to the artists and the labels. Of course, when counterfeiters are selling on the street, the same thing is true, but suddenly it's okay? At what point does the world realize that Ms. Allen doesn't know what she's talking about?

Filed Under: cds, commercial use, copying, copyright, counterfeiting, infringement, lily allen

Movie Monsters, The Grateful Dead... And Fair Use Even In Commercial Use

from the good-news-for-fair-use dept

There's some good news on the fair use front. Many people seem to falsely believe that if a work is used for commercial purposes it cannot be fair use. They think fair use only applies to non-commercial efforts. But that's not true. Commercial use is factored into the analysis, but just because it's commercial does not mean that it's not fair use. A few years ago, an important case made this point, involving Grateful Dead concert posters that were used in a book. The Bill Graham Archives, who owned the posters in question, claimed that because the book was published commercially, it wasn't fair use. But the court ruled that even though the images were used commercially, and even though they were used in their entirety without modification, the fact that they were used in the context of a book describing the history of the band, made it fair use.

It looks like we now have another, quite similar, ruling -- this time involving movie monsters, and whether or not magazine covers could be used in a book. And, once again, a court has ruled that this is fair use, despite the commercial nature. In this case, the book was a look at the artwork of Basil Gogos, who apparently designed numerous magazine covers concerning monster movies in the 1950s and 60s. The magazine publisher claimed that the use of the magazine covers in the book violated its copyrights and trademarks, but the judge ruled that this was fair use, noting that the use (if not the works) was transformative. That is, the original works were designed for use as magazine covers, but this use -- as a biographical and retrospective look at the artist -- was entirely different.

"The fact that the Gogos book is inherently biographical renders it so fundamentally transformative in nature, coupled with the fact that Spurlock utilized such a quantitatively and qualitatively minor portion of the magazines, requires this court to conclude that Spurlock's use is fair use and to grant Spurlock's motion for summary judgment on the copyright claims,"

This is definitely an important fair use ruling, though will likely still go through appeal. Hopefully, it'll be allowed to stand.

Filed Under: basil gogos, commercial use, copyright, fair use, grateful dead, movie monsters

That Blurry Line Between Commercial & Non-Commercial Use Still Troubling For Creative Commons

from the is-this-commercial-use? dept

First off, I should say that I respect what the folks over at Creative Commons are doing, and think they really do have the best interests of content creators and the public at heart in their plans -- but I've always been a bit uneasy with the whole setup of Creative Commons -- some of which I expressed last year in discussing the difficulty in distinguishing commercial from non-commercial use, as is necessary in many CC licenses. As I wrote at the time:

But it's this blurring of "personal" and "work" lives that again has me pondering if there really is a meaningful distinction between "commercial use" and "non-commercial use." Some of this debate first came about years ago, when some web publishers claimed that their RSS feeds were "for non-commercial use only," but what does that mean? If I read your site as part of my job, have I violated that rule? If I learn information from your feed that allows me to make money, have I violated that rule? More recently, there have been proposals to separate copyright violations, such that "non-commercial use" is allowed. But, again, you quickly run into very questionable scenarios. If my personal blog has Google AdSense on it, is it commercial use? If I end up getting a job because of my "personal use" of your content, does it suddenly morph into "commercial use"? The questions get more and more confusing, and the mess would make less and less sense.

It seems that Danny Sullivan has come across the same issue, and is taking both Flickr and Creative Commons to task for the ambiguity in their licenses which is so confusing that even those who are using CC licenses don't seem to totally agree with what their own licenses say. He details a variety of stories, where it's simply not clear at all what is really allowed under the CC license being used. If a commercial blog uses and attributes a photo that has a "non-commercial use" only license, is that infringing? Or is that "non-commercial use" only limited to not selling the image. But some might argue that you were "selling ads off of the image." It all gets quite blurry fast.

To their credit, the folks at Creative Commons have been working hard on trying to deal with the ambiguity (and part of the reason for the original post I linked to at the beginning of this story was a survey they were taking on this very subject). But it's quite clear that there's still an awful lot of ambiguity that isn't really helped by the phrase "non-commercial use."

Filed Under: commercial use, copyright, creative commons, non-commercial use