MPAA's Actions, Emails Show That They're Doing Everything Possible To Screw Over The Blind

from the how-can-they-deny-it? dept

Back in April, we pointed out that the MPAA was working overtime to screw over the blind in the negotiations for a WIPO treaty to make it easier for the blind and those with vision impairment to access works for the blind. They'd already succeeded in screwing over the deaf by getting them excluded from the treaty, despite it initially being for both. Over the past two months, however, the MPAA tried to go on a charm offensive going on and on about how much they really, really liked blind people and wanted to help get a treaty passed, even somehow getting the National Federation for the Blind to throw their own members under the bus by issuing a joint statement claiming to support the treaty.

However, over the past week, the reports coming out of the treaty negotiations in Marrakesh have been consistent about one thing: the MPAA's influence over the US negotiators has been immense, and the US negotiators have been the single source blocking the completion of the treaty by arguing to gut the entire treaty, making it next to useless. They've fought against fair use. They've fought against exceptions to copyright. It's gotten so bad that even the mainstream press has picked up on the MPAA's direct assault on the blind. The Washington Post has an article all about the MPAA's attempts to block and change the treaty such that it is effectively useless.

But the treaty, years in the making, could be in jeopardy because of unresolved differences between advocates for the blind and the Motion Picture Association of America, which says the accord could undermine protections important for filmmakers, publishers and other major industries.

Of course, you might wonder why the MPAA is so concerned about a treaty for the blind, which is mostly focused on written materials, since that shouldn't impact the MPAA very much. The answer is what we've said for years: copyright maximalists will fight against any treaty that recognizes the rights of people to push back against maximalism through things like fair use. And the MPAA isn't even coy about this:

“What happens here could affect other future treaties,” said Chris Marcich, who is in charge of dealing with the negotiations for the MPAA and its international wing, the Motion Picture Association.

Yes, how dare the public have their rights supported during treaty negotiations about what they can do with works they own. Horrors.

The article also highlights that the MPAA was instrumental in getting the negotiators to drop more expansive fair use rights of the public included, insisting instead on only allowing the "three step test" from the Berne Convention included. As we've discussed in the past the three step test is merely one way in which a country can protect the public's rights to limitations and exceptions in copyright law, but maximalists like to claim it's the only way, because if you read it in the strictest sense, it severely limits fair use, because a use fails the "three step test" if it "unreasonably prejudices the legitimate interests of the rights holder." In other words, if the rights holder doesn't like it, no fair use for you. Amazingly, even this test is now not enough for the MPAA:

But the MPAA says the protections afforded by the three-step test are still too weak and wants them to be more effective. Moreover, Hollywood is strongly resisting language in the draft that mirrors the concept of “fair use,” long embodied in U.S. copyright law. Fair use says that copyright material can be used without permission in certain circumstances, such as for nonprofit educational purposes.

Related to all of this, KEI has received, via a Freedom of Information Act (FOIA) request, all emails between MPAA lobbyists and the negotiators from the USPTO (who are handling much of the negotiation). It's worth noting, by the way, that the key person at the USPTO (and the person addressed in many of these emails) is Shire Perlmutter, currently the Chief Policy Officer and Director for International Affairs at the USPTO, but prior to that was the Executive VP of IFPI (the international version of of the RIAA) and before that, was VP and Associate General Counsel for Intellectual Property Policy at Time Warner... a member of the MPAA when it owned Warner Bros.

Included in the documents is an incredible attack on fair use by the MPAA, sent in April of this year, just as the MPAA was insisting it wanted to help the blind, and at the same time that the MPAA's Ben Sheffner was, ridiculously, pretending that the MPAA was one of the world's biggest defenders of fair use. Yet, at the very same time, they were promoting a document that claimed the following about fair use:

As has been pointed out by various commentators, open-ended systems such as fair use under Sec. 107 US Copyright Act may raise issues with the three-step test, in particular the first and possibly third step.... Consequently, it is neither necessary nor would it be reasonable or desirable in view of the mentioned difficulties to include an express reference to fair use or fair dealing in the proposed instrument.

A specific reference to fair use or fair dealing could also be misleading for it could be understood as an invitation to implement the instrument in such a way, whether or not it sits well with the particular legal system of the Contracting Party in question. However, any wholesale introduction of a particular legal feature, be it fair use, fair dealing or a closed list, would be contrary to the intended effect of the discretion that Contracting Parties may exercise with regard to the way of implementing their treaty obligations....

At a time when the fair use doctrine is considered by many as a cure for all ills, this would clearly be the wrong sign....

Consequently, for all the foregoing reasons, the reference to specific ways of implementation such as fair use or fair dealing should be omitted from the proposed instrument.

These are the defenders of fair use? These are the folks who claim they're trying to help the blind? That's all a lie. And the quotes above are just a few. There are a lot more of that nature. The MPAA wants to screw over the blind out of a fear that people might realize that fair use and other rights of the public might just be more important than an artificial government monopoly system to inflate their bottom lines.

Later in the documents, you can see the cozy relationship between the key government players, Perlmutter and Justin Hughes (another well-known maximalist supporter, now in the government) and MPAA members and lobbyists. There's also a discussion about how three steps in Berne only applies to certain types of copyright rights (reproduction rights), but does not apply to other things like public performances, and how their wishes are to go even further and make sure the very limiting 3 steps applies to everything. It also shows that the US government, via Perlmutter and Hughes, helped propose back to the MPAA how they might achieve their goals in the agreement. In an email from Scott Martin at Paramount to Perlmutter:

I suggested to Justin the concept that I heard from both you and Karyn Temple Claggett: membership in the VIP Treaty be limited to countries that have ratified and implemented the WCT. Perhaps if there is resistance from non-ratifiers, the US/EU could then proposal a new Article Ebis that would apply only to countries which want to ratify the VIP Treaty but which have not yet ratified and implemented WCT.

Justin seemed intrigued by the idea and mused that perhaps the Japanese proposal for Article E could be expanded to cover this separate goal.

There are also cases where people, such as Time Warner employees, were sending language they wanted inserted directly to Hughes at his request. At one point, Hughes emails Bradley Silver at Time Warner with a simple request:

Could you just send me the whole language?

That was after Silver specifically asked Hughes to "tweak" the language in one section.

Basically, the documents make it abundantly clear that the MPAA is trying to keep fair use/fair dealing way out of the agreement, and then seeking to undermine things even further by putting in place an extreme version of the three step test -- a test that already goes way too far in limiting the public's rights to make use of works. It further shows that the MPAA's public stance that it's in support of a treaty for the blind is hogwash. It's in support of a treaty that strips away many of the rights for the blind.

Filed Under: berne convention, blind, fair dealing, fair use, justin hughes, shira perlmutter, three step test, treaty, visually impaired
Companies: mpaa, paramount, time warner

Canadian Copyright Collection Group Access Copyright Declares War On Fair Dealing

from the that'll-go-over-well dept

We spent a fair amount of time last year writing about Access Copyright, the Canadian copyright collection group that collects fees from universities for photocopying, and then is supposed to distribute the money to various authors (it's not always good at actually doing that). There were significant complaints because the group tried to massively increase its rates (we're talking an increase of 1,300%), creating a big burden on students, often for no added benefit. There were some sketchy negotiations, and for reasons that still don't make sense, a bunch of universities agreed to pay the crazy rates. Others, smartly, opted-out. On top of all that, around the same time, the Canadian Supreme Court ruled in a series of copyright cases where it protected fair dealing, especially when it came to education and research.

Apparently, rather than accept reality, Access Copyright has decided to declare war on fair dealing. As Michael Geist has detailed, Access Copyright is basically just trying to do an end-run around the law and the Supreme Court rulings.

Access Copyright has decided to fight the law - along with governments, educational institutions, teachers, librarians, and taxpayers - on several fronts. It has filed for an interim tariff with the Copyright Board in an effort to stop K-12 schools from opting out of its licence and it has filed a proposed post-secondary tariff that would run well after most Canadian schools will have opted out of its licence. Most notably, it has filed a lawsuit against York University over its fair dealing guidelines, which are similar to those adopted by educational institutions across the country. While the lawsuit has yet to be posted online, the Access Copyright release suggests that the suit is not alleging specific instances of infringement, but rather takes issue with guidelines it says are "arbitrary and unsupported" and that "authorize and encourage copying that is not supported by the law."

Basically, Access Copyright lost entirely, but it's still pretending that it won. Given the pretty decisive Supreme Court situation, you have to wonder what Access Copyright is thinking, other than "well, we know how to sue, so..." Meanwhile, of course, students suffer massively from this kind of crap. Overcharging students for education doesn't do anyone any favors.

Filed Under: canada, copyright, fair dealing
Companies: access copyright

Exploring Fair Use And Fair Dealing Around The Globe

from the it's-there dept

We've seen some pushback against fair use/fair dealing over the years -- especially by copyright maximalists who like to pretend that such public rights as codified as fair use and fair dealing somehow violate international treaties. That's ridiculous. Jonathan Band and Jonathan Gerafi have put together a fantastic handbook detailing every fair use and fair dealing law they could find around the globe. The end result? Over 40 countries, covering more than one-third of the world's population, have these laws as a part of their copyright laws. That doesn't mean that all of them are well written or as strong and protective of the rights of the public as they could be. However, as Band notes, this suggests that "there is no basis for preventing the more widespread adoption of these doctrines, with the benefits their flexibility brings to authors, publishers, consumers, technology companies, libraries, museums, educational institutions, and governments."

Filed Under: copyright, fair dealing, fair use, public rights

National Post Wants $150 To Quote Articles (Even The Parts It Quoted From Other Articles)

from the double-standard dept

Update: Since this morning, National Post seems to have disabled this feature. Whether the change is permanent or not I can't say.

Despite three years of journalism school and several more working at newspapers, I'll never understand the double standard that journalists and publishers have when it comes to copyright and fair use/fair dealing. The act of reporting relies heavily on the latter, and the news business would be a very different place if newspapers were expected to pay licensing fees on the quotes they gather from experts, reports and other sources. Thus, newspapers have traditionally been staunch defenders of fair use—that is, until they find themselves on the other side of the equation.

Through Michael Geist we learn that Canada's National Post (disclosure: I used to work for the paper as a freelancer) is trying out a highly disruptive new "feature" that attempts to scare people out of quoting the articles without paying up:

If you try to highlight the text to cut and paste it, you are presented with a pop-up request to purchase a licence if you plan to post the article to a website, intranet or a blog. The fee would be $150. ... If you click no to the pop-up, you cannot copy the text. If you click "quit asking me", the request stops.

I've seen newspapers with "license calculators" for quotes before, and of course we've all seen websites that frustratingly interfere with your copy-and-pase or right-click abilities—but this is the first time I've seen the two combined. The system is driven by iCopyright, a plugin that promises to make it "super easy" for people to license your content, but I guess not so easy that people won't hopefully feel compelled to pay.

This isn't just a dumb idea—it's a really hypocritical game for a newspaper to be playing. Geist underlined the irony by pointing to the regular Post feature Full Pundit, in which writer Chris Selley does a roundup of editorial and opinion columns from the week in Canadian media. Naturally, this involves lots of quotes and snippets from these other media sources, which Selley then expands on or disagrees with or otherwise comments upon—all unlicensed quotes, the use of which is clearly protected under Canada's fair dealing laws for commentary and criticism (and would be equally protected in the US under fair use laws). But if you try grabbing a snippet from Full Pundit, you'll be asked to pay a license. Worse still, if you try to grab one of the quotes from another newspaper on the National Post site, you'll still get the same popup telling you to look into licensing options... for a quote they don't own and are themselves using for free on the basis of fair dealing.

The popup does not mention fair dealing or fair use. It takes some digging to find iCopyright's fair use statement, which is a masterpiece of menacing disingenuousness. As we've noted in the past, the fact that the boundaries of fair use and fair dealing are often unclear creates a massive chilling effect, since people are unsure about their rights and not always willing or able to fight for them, and iCopyright relies on that very effect to scare people into paying up:

The use of excerpts from others' works without a license is permitted in certain limited circumstances under the "fair use" doctrine of U.S. Copyright Law and the "fair dealing" doctrine in Commonwealth nations. However, republication on the internet, without a license, of even a small portion of a work can constitute copyright infringement.

The distinction between "fair use" or "fair dealing" and infringement is not easily defined because each re-use has unique characteristics that must be analyzed. For example, there is no specific number of words or lines that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission. For additional information you may want to do an internet search of "fair use checklist" and "copyright myths."

Got that? "It's pretty hard to know if something's fair use, so you probably shouldn't bother." The page then offers a list of factors that often come up in fair use analyses, and suggests that if any of them apply to your use, it is "cause for serious reflection" on whether or not you are protected:

• Is the excerpt such that the reader may feel he/she already has the gist of the original work and no longer needs to read it?
• Is it your intent to earn money, whether through ads, subscription revenues, or otherwise?
• Is the work that was excerpted highly creative?
• Are you choosing not to exercise an affordable and accessible licensing mechanism?
• Are you publishing the excerpt widely, such as on the Web?
• Is the work of excerpted authors the main draw to your work as opposed to serving as a "footnote"?

Now, it's true that all of those are factors that can matter, but it's also true that you could answer 'yes' to virtually all of them and still be within the bounds of fair use/fair dealing. This is easily demonstrated by looking at the snippets within the National Post Full Pundit columns, which are a definitive "yes" on all but the first item. The issue of quote length is doubly amusing, since the Post recently lost a lawsuit it brought against an internet forum, because the Supreme Court declared that posting large snippets (multiple paragraphs) of articles can still be fair dealing, and that the established fair dealing exceptions for "news reporting" can include things like online forum discussions.

And that's where we see the double standard emerge. For a long time, newspapers really were the only source for news reporting, and thus over the years they got some special considerations in the laws and in the courts. Today everyone is a reporter, a photographer and a publisher, and these non-ink-stained wretches are quite rightly utilizing the same rights that "official" news sources have, for the same purposes. Newspapers like the National Post seem to have a hard time getting their head around that, so they launch lawsuits against forums and stick pointless bullying popups on their websites. It strikes me as a matter of arrogance more than anything else.

And, of course, it has to be asked: what is this going to accomplish? It's certainly not going to become a massive revenue stream for the paper, with bloggers (who are becoming well-versed in fair use and fair dealing themselves) forking over $150 every time they want to quote the National Post. There is another possibility, which is that it's a legal tactic: in future lawsuits, the Post could point to this popup tool as an "available and affordable license" that someone chose to forego, giving them a slight leg up in an anti-fair-dealing argument.

Either way, it's a hypocritical and even somewhat despicable move. The National Post is fighting against an important legal protection that is vital to newspapers themselves and to free speech as a whole. Here's hoping that the writers featured in Full Pundit columns, and anyone else quoted in the Post, calls up the newsroom and demands a $150 licensing fee.

Filed Under: canada, copyright, fair dealing, fair use, journalism, quotes
Companies: national post

Industries Dependent On Copyright Exceptions Contribute $182 Billion To Australian Economy

from the not-too-shabby dept

Despite the absence of credible studies supporting the idea, part of the copyright maximalist dogma is that the wider the reach of copyright, and the stricter the application, the better. As a corollary, copyright exceptions are anathema, which is why the US and EU are still shamefully resisting an international treaty that would enable more books covered by copyright to be produced in versions suitable for the visually impaired, since it would create a minor exception to help make that happen.

Part of the difficulty in contesting this view is that there is also very little research showing that exceptions are important, especially for driving economic growth. That makes a new report called "Excepting the Future" (pdf), commissioned by the Australian Digital Alliance, and pointed out to us by @MsLods, a particularly important contribution to the debate.

It starts by explaining why traditional copyright, devised in an analogue world, is no longer working:

digital content cannot be handled without copying it. Thus in the digital world, the distinction between handling and copying a work has completely broken down. All handling of digital content, however helpful to society or rights holders, may prima facie be a breach of copyright, attracting liability to rights holders if they have not permitted it.

It goes on to draw a suggestive parallel:

This situation is dysfunctional. It is not unlike the state of air-space law at the point at which the development of aviation had rendered it obsolete. In the early twentieth century, following Roman Law, land owners held exclusive rights "up to Heaven and down to Hell" giving them impracticable veto powers over air routes.

It was only when legal certainty was established by crafting an exception that allowed aircraft to pass over private property that the aviation industry really developed; the report calls for similar liberating exceptions to be created in Australian copyright law, so as to bring it more in line with the US's looser and highly-successful fair-use framework.

Australia's current copyright system is ill-equipped to cope with key Internet activities like search and indexing, caching and hosting, since they all involve incidental copying. Theoretically, companies providing those services ought to seek licensing agreements with copyright holders to avoid infringement. The report calculates how much time and money would be required to do that in the case of search engines:

If the 170 search engines listed at www.philb.com/webse.htm transacted with all 3.8 million Australian domain name registrants [to obtain permission to allow their sites to be indexed], it would involve 645 million transactions. If each transaction took 9.5 hours [to allow for multiple communications and checks by the site regarding rights], then, at average weekly wages, the transaction costs would exceed $150 billion a year. And that is just for the Australian domain names.

As well as the huge costs that current Australian law would entail if applied to the letter, the report quantifies the contribution that industries making use of copyright exceptions contribute to the economy: 14% of Australia’s annual Gross Domestic Product, or $182 billion; they also employ 21% of its paid workforce, almost 2.4 million people. The report further estimates the contribution more flexible copyright exceptions, coupled with better safe harbors, would contribute to the economy: around $600 million annually.

Of course, these figures can, and probably will, be contested by those ideologically against copyright exceptions. But it's a start, and a welcome one in the context of the prevalent assumption that more copyright equates to more economic benefit.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

Filed Under: australia, copyright, economy, exceptions, fair dealing, fair use, public domain

Copyright Reform Process Begins Down Under... And They're Actually Asking Good Questions

from the they-did-what-now? dept

Australia's been an interesting country to follow on the copyright front. In terms of court decisions, there have been some good ones and some awful ones. On the lawmaking front, we've seen ridiculous ideas floated and good ones as well. The current regime is, unfortunately, supporting some of the bad parts of the TPP, but the Australian Parliament has argued for rejecting ACTA. All in all, it's a mixed bag.

However, Australia is about to undergo a copyright reform process, with the Australian Law Reform Commission focusing on how copyright reform should work in the digital economy, and releasing a very encouraging set of questions that it is seeking to answer as a part of the process. Unlike the typical "and just how awesome is copyright?" type of questions we see in some other places, the ALRC's questions raise many of the key issues -- noting that copyright law absolutely has an impact on the introduction of new and innovative business models and that it "imposes unnecessary costs or inefficiencies on creators or those wanting to access or make use of copyright material."

Furthermore, it has some specifics that show whoever put together the questions has a pretty deep understanding of some of the key upcoming issues, including how copyright law should handle things like caching and cloud computing. There's a push among copyright holders to change or clarify laws to say that temporary or cached copies can violate copyright, but that that leads to some serious problems for all sorts of online activities. Some of the ALRC's questions show a recognition of the potential problem:

Question 3. What kinds of internet-related functions, for example caching and indexing, are being impeded by Australia’s copyright law?

Question 4. Should the Copyright Act 1968 (Cth) be amended to provide for one or more exceptions for the use of copyright material for caching, indexing or other uses related to the functioning of the internet? If so, how should such exceptions be framed?

Question 5. Is Australian copyright law impeding the development or delivery of cloud computing services?

Question 6. Should exceptions in the Copyright Act 1968 (Cth) be amended, or new exceptions created, to account for new cloud computing services, and if so, how?

There's also a whole series of questions looking at how private copying should be dealt with, as well as "online use for social, private or domestic purposes." A few more of the questions:

Question 7. Should the copying of legally acquired copyright material, including broadcast material, for private and domestic use be more freely permitted?

Question 11. How are copyright materials being used for social, private or domestic purposes—for example, in social networking contexts?

Question 12. Should some online uses of copyright materials for social, private or domestic purposes be more freely permitted? Should the Copyright Act 1968 (Cth) be amended to provide that such use of copyright materials does not constitute an infringement of copyright? If so, how should such an exception be framed?

The questions even specifically call out how samples, remixes and mashups should be handled. I doubt that the majority of US politicians even know what any of those three things are.

Furthermore, the questions explore known issues with copyright law today, such as how to deal with libraries, archives and orphan works (though we still think they should be referred to as hostage works). Towards the end, there are a whole bunch of questions around fair dealing (what Australia currently has) and fair use. They specifically ask if Australia should switch from fair dealing -- with its specific exceptions to copyright law -- to fair use, with its much more broad and flexible look at whether or not uses should be allowed without permission.

Who knows how this will turn out in the long run, but from a starting point, it certainly looks like the ALRC is actually asking a lot of the right questions, rather than trodding down the well-worn path of simply expanding copyright law over and over again. Of course, the really tragic part is that if Australia does sign onto ACTA and the TPP, they may not be able to make many of the changes suggested by these questions. That's one of the major concerns with both agreements. They lock governments into certain ways that copyright law must act, and it wouldn't allow the kinds of exceptions that these kinds of questions would likely lead to. That's one of the reasons why we're so worried about both agreements. They don't necessarily change the laws today in some places (in others, they make some changes), but the real problem is they lock in clearly broken parts of the system and make it impossible for them to evolve. Clearly some people in Australia recognize the problems with copyright law in the digital age -- but ACTA and TPP might limit their ability to fix those problems.

Filed Under: australia, cloud computing, copyright, copyright reform, fair dealing, fair use, personal use

Lord Finesse Learning How The Streisand Effect Works: Tons Of People Re-Upload Dan Bull's Video

from the calling-more-attention-to-it... dept

We've covered how Lord Finesse and his lawyers appear to be using copyright to stifle criticism of Finesse's lawsuit against Mac Miller, and how Dan Bull was speaking out against that kind of censorship. It's been quite clear that Finesse's main reason for issuing the takedown was to stifle the criticism, since tons of videos using the same beat remain online -- including Mac Miller's.

But, of course, as we've learned over the years, when you try to stifle free speech online, a funny thing happens. It seems that plenty of people aren't at all happy about Lord Finesse's attempt to silence Dan Bull, and they're re-uploading copies of the video by the dozen. At the time I'm writing this, there are well over 100 other copies of the video uploaded. Here's just a sampling of what the search results look like:
Might have been wiser to have just kept quiet about the damn thing. By taking it down, Finesse has now called a hell of a lot more attention to Dan Bull's rather important criticism of his actions.

Filed Under: dan bull, fair dealing, fair use, lord finesse, mac miller, parody, streisand effect

Dan Bull: Censored By Copyright For Protesting Being Censored By Copyright

from the more-copyright-as-censorship dept

On Friday, we wrote about the ridiculous situation in which Lord Finesse issued a takedown for Dan Bull's video that was critical of Finesse's lawsuit against Mac Miller. Over the weekend, Dan decided to do a "documentary" style video about the situation, entitled CENSORED BY COPYRIGHT. It's eight minutes, and worth watching in its entirety:
It does a good job laying out both the legal (fair use, fair dealing) and moral (culture, the nature of hip-hop building on itself) reasons for why Dan believes he's in the right. But it also highlights the chilling effects at play. Dan can put in a counterclaim, but if he does so he risks (1) a lawsuit from Finesse and (2) losing his entire YouTube channel, with which he's spent years building a massive following... and (1) is not a particularly far-fetched threat, given that Finesse did, in fact, just sue Mac Miller for $10 million. Clearly, he's got lawyers and he's not afraid to use them.

In the meantime, Lord Finesse posted something on his own Facebook account, implying that Dan Bull has no fair use claim, because he has ads on his YouTube channel. Of course, that's not quite how fair use works. While the fact that Dan might make some money could play into whether or not it's fair use, the fact that you monetize your work does not automatically mean you lose fair use protections. As Dan notes in his own comment, news organizations -- magazines, newspaper, TV news and radio -- are all for-profit ventures, and are probably the biggest users of fair use. What Dan was doing here was providing commentary on the news in the same way that a news program or magazine might.

So while Finesse claims that "there's a difference" between presenting an opinion and making money on ads, that's hard to square with reality, where lots of people make money while also presenting their opinions.

Filed Under: criticism, dan bull, fair dealing, fair use, lord finesse, mac miller, parody, uk

Lord Finesse's Lawyers Now Using Copyright To Stifle Dan Bull's Criticism Of His Lawsuit Against Mac Miller

from the copyright-as-censorship dept

Yesterday we wrote about rapper Lord Finesse suing fellow rapper Mac Miller because Miller released a free song that used the same beat that Finesse used (which was itself based on a sample from jazz musician Oscar Peterson). Miller, of course, has become a phenom, being the first indie artist to top the charts with a new release in over a decade. The song in question, Kool Aid & Frozen Pizza, wasn't on Miller's album, but was just released for free online, and uses the same beat from Finesse's 90's era hit Hip 2 Da Game. And now Finesse is suing for $10 million.

In our post on the subject, we pointed to a song that Dan Bull put together, using the same beat, but as commentary/parody of this legal fight. The song highlights how hip-hop has a long history of building on the works of others, and does a nice job laying out the history with Oscar Peterson's sample being used first. And... this morning Dan Bull logged into his YouTube account to discover that Finesse's lawyers had issued a takedown on his song. This is a clear abuse of copyright law to stifle criticism of his lawsuit. First of all, it's not at all difficult to find a lot of other songs that use the same beat with people rapping their own lyrics over them... and they all have been left up (and have been up for a while). Here are just a couple examples -- both of which have been up for over a year. And, oh yeah, even Mac Miller's own version is still up on YouTube. So basically, either Finesse and his lawyers just so happened to take down the one video that is critical of the lawsuit... or they're using copyright to stifle criticism and free speech.

Furthermore, it seems like there's as pretty strong argument for fair use (or fair dealing in the UK) for Dan's video. It's clearly using the music to comment on the lawsuit and the fact that it involves this beat. It's difficult to discuss the nature of the beat without actually being able to use the beat, as Dan did. In many ways this seems like a classic case of what fair use/fair dealing was designed for. The beat is integral to the criticism and commentary that is the whole point of the song, and is used out of necessity.

Of course, even more amusing is that the entire point of Bull's song was to tell Finesse just how bad legal action like his lawsuit against Miller really looks -- and instead of getting the message, it appears that Finesse and his lawyers want to look even worse, using the same sort of "copyright as censorship" effort that made Bull call them out in the first place.

Filed Under: criticism, dan bull, fair dealing, fair use, hip-hop, lord finesse, mac miller, parody

Great Day For Canadian Copyright: Supreme Court Issues Five (Count 'Em) Rulings Supporting Fair Dealing And Fewer Tariffs

from the proud-day dept

Canadian copyright is undergoing huge changes. The copyright reform bill is very close to becoming law, bringing with it some fantastic new fair dealing provisions (though unfortunately along with a significant downside in the form of digital locks rules), and now the Supreme Court has stepped in with a series of major rulings that reinforce users' rights and begin the process of cleaning up the mess that is Canada's copyright tariff system. This morning, the court published five separate judgements in cases related to tariffs and royalties, and each one contains significant victories for smarter copyright law.

There is a lot to dig into in this series of rulings, and some complex legal questions involved in some portions, but each one also makes clear statements. In the first case, between Alberta schools and the copyright collective Access Copyright, the court found that photocopies for classroom use can be covered by the "research" provisions of fair dealing. In the second case, between videogame publishers and a music collection society, the court found that selling videogames does not constitute a new public performance of the music they contain, and thus does not require a public performance royalty (yes—the Copyright Board and Federal Court of Appeals had both previously ruled that transmitting videogames with music in them counts as "communication to the public"). Similarly, in the third case, the court found that films which contain music are also not public performances requiring an additional royalty (on that one, the lower courts had gotten it right and also refused to certify the tariff). In the fourth case, the court affirmed that while streaming music to users is a public performance, offering music for download is not—so services like iTunes also don't have to pay additional performance royalties. Finally, in the ruling that may get the most attention, the court found that 30 second previews of songs provided by online music services qualify as fair dealing for the purposes of research—a battle that has been going on for a long time in Canada and is now, finally, put to rest.

The rulings also contain a lot of very important language that will have a lasting impact beyond these specific scenarios. The Supreme Court reaffirms the fact that fair dealing must have a "large and liberal" interpretation, and set down some clear restrictions on the power of the Copyright Board. Howard Knopf does an excellent job of summing up some of the important points and broader themes of these five landmark rulings:

• Collectives cannot assume that they will be entitled to an additional "layer" of remunerated rights every time there is a new method of delivery. Technological neutrality matters.
• The Court said what it meant and meant what is said in CCH v. LSUC in 2004 and will move forward from there - not be pushed backwards.
• Users have rights that must be given a "large and liberal interpretation". Copyright doesn't exist solely for collectives.
• Educators are in a "symbiotic" relationship with students and the Copyright Act serves the goal of education, which includes access to essential material
• Copyright law is both about "protection" and "access"
• Copyright law is about "dissemination"
• "Research" is not restricted to "creative purposes". Consumer research counts too. Research can even be for "personal interest". There is no absolute requirement for "transformative" use in Canada
• The user's purpose is the one that counts in fair dealing
• Practices that increase the sale of work cannot be said to have a negative impact on the work
• The concept "public" must be considered in light of new technology, technological neutrality and the purpose of the legislation. The fact that communication may be interactive on an individual basis does not mean that it cannot be considered to be to the "public"
• When the statute uses a word such as "excludes", it means it. The word is not superfluous.
• Parliament did not intend to "recognize a superior expertise of the [Copyright] Board relative to the courts with respect to legal questions arising under the Copyright Act". On copyright questions of "first instance", the Board will get no more deference that any court would get. In other words, the Board must be "correct". It will not be sufficient that it merely be "reasonable"

One of the groups that is likely to be hit the hardest by these rulings is Access Copyright. We've covered the fact that Canada's university association struck a terrible deal with Access Copyright for the clearance of educational materials, and several major Canadian unversities are refusing to sign on. This Supreme Court case was not directly dealing with that situation (it covers only primary and secondary schools), but the ruling contains a complete tear-down of Access Copyright's entire business model which applies every bit as much to universities and colleges. Michael Geist walks through the point-by-point dismantling of all Access Copyright's standard arguments against fair dealing, leaving them very few legs to stand on moving forward. For those universities that plan to clear their own copyrights, this is a very big win—for those that didn't have the resources to keep fighting after the AUCC abandoned them, it just highlights how bad of a deal they got.

Copyright law in Canada has its problems—first and foremost the extremely bad digital locks rules that will come into effect with Bill C-11. But, increasingly, and most notably at the Supreme Court level, we've also been making significant strides in the right direction, using legal language that displays a clear understanding of both modern realities and the need for balance in copyright law. There are still important battles to be fought, but today the Supreme Court gave us a huge arsenal of new weapons.

Filed Under: c-11, canada, education, fair dealing, research, scc
Companies: access copyright