Court Says Posting Georgia's Official Annotated Laws Is Not Fair Use, And Thus Infringing

from the this...-is-a-problem dept

We've written a number of times about Carl Malamud and his organization Public.Resource.org, a nonprofit that focuses on making the world's laws more readily accessible to the people governed by those laws. You'd think that people would be excited about this, but instead, Carl just keeps getting sued. All the way back in 2013, the state of Georgia first threatened Carl for daring to publish online the "Official Code of Georgia Annotated." Two years later the state did, in fact, sue Carl for copyright infringement.

The case is, at least somewhat tricky and nuanced -- even if it shouldn't be. The key issue is the annotations and other additions to the official laws created by the legislature (the state of Georgia claims that "names of titles, chapter, articles, parts and subparts, history lines, editor notes, Code Commission notes, annotations, research references, cross-references, indexes and other such materials" are all covered by copyright). Obviously, it's crazy to think the underlying law itself is covered by copyright and unpublishable, but this has to focus on the annotations -- which are the various notes and links to relevant case law that add important context to the code itself. As people studying the law quickly learn, "the law" is not just the regulations written down by legislators, but also the relevant caselaw that interprets the laws and sets key standards and makes decisions that influence what the written code actually means. I don't think anyone disagrees that a private party who develops useful and creative works as annotations could potentially hold a copyright on the creative elements of that work (merely listing relevant cases, probably not, but a deeper explanation, sure...). And here, these annotations are developed by a private company: LexisNexis. The issue is the "official" part. Under contract with the state, LexisNexis creates the annotations, gets the copyright, and then assigns the copyright to the state of Georgia on those annotations, with Georgia releasing it as "the Official Code of Georgia Annotated."

It's also worth noting that every new bill in the Georgia legislature says that it's "an Act to amend the Official Code of Georgia Annotated" -- not to just amend the code. I just grabbed the first bill I could find, and this is what you see:

Also, as noted above, it's not just the "annotations" here -- but as the state claims, the "Code Commission" notes. That seems like fairly relevant information created by the government. Either way, the state of Georgia views the entire "Official Code of Georgia Annotated" as its one true source of law, and it's not available to the public. While the state has responded that (via LexisNexis) it does offer a website with the unannotated code, that website requires that you agree to LexisNexis' overly broad terms and conditions, which include all sorts of crazy demands, including insisting that if they ask you not to link to them, you have to stop linking. Also, even though this is Georgia's state laws, you agree that any dispute over the website will be in a New York jurisdiction. Oh, and the actual website with the law is basically unusable.

Malamud and his legal team argued that (1) due to the nature of this odd relationship, the work cannot be covered by copyright and (2) that, if it was covered by copyright, republishing this annotated code was fair use. Unfortunately Judge Richard Story, in the federal district court in Atlanta, has rejected both these arguments and found that the posting of the work was infringing.

On the question of whether or not this work could be covered by copyright, the court shows how legal annotations have long been considered copyright-eligible. In response to the argument that this is different, since it's the government itself now claiming these annotations as "official," the judge... just doesn't buy it:

Here, Defendant argues that these annotations to the O.C.G.A. are not copyrightable, but the Court disagrees. The Court acknowledges that this is an unusual case because most official codes are not annotated and most annotated codes are not official. The annotations here are nonetheless entitled to copyright protection. The Court finds that Callaghan v. Mvers. 128 U.S. 617 (1888), in which the Court found annotations in a legal reporter were copyrightable by the publisher, is instructive. Defendant itself has admitted that annotations in an unofficial reporter would be copyrightable, and the Court finds that the Agreement does not transform copyrightable material into non-copyrightable material.

The court further notes that the State of Georgia, while still publishing this as the "official" code, has bent over backwards over the years to remind everyone that the annotations themselves do not carry the force of law. This is probably the right legal conclusion as copyright law currently stands, even if it's an unfortunate legal conclusion. What it means is that, in Georgia, professional practitioners, with access to the expensive official annotated code, are the only ones able to truly understand the law -- and the average everyday Georgian cannot. From a public policy perspective, that just seems like a bad idea.

The fair use argument is a bit more interesting, and seems more viable to me, but the judge doesn't seem to think so. As always, the court runs through the four factors test for fair use, and weighs them... saying that they tip towards the state, rather than Malamud (and the public). For test one, on the nature of the work and whether or not the use is transformative, the court says there's no transformative use here at all, since it's just reposting the work as is.

Defendant does not transform the annotations. It does not add, edit, modify, comment on, criticize, or create any analysis or notes of its own. Defendant's justification in support of its verbatim copying and free distribution without authorization is that it purports to provide wider distribution of the annotations. Courts have routinely rejected arguments that this is transformative use

The fact that Public.Resource.org is a nonprofit and doing this for the benefit of the public still doesn't tilt the scales. In fact, in a rather troubling part of the ruling, Judge Story actually claims that because Carl "profits" from attention, he shouldn't even be considered a nonprofit.

In this case. Defendant's business involves copying and providing what it deems to be "primary legal materials" on the Internet. Defendant is paid in the form of grants and contributions to further its practice of copying and distributing copyrighted materials. Defendant has also published documents that teach others how to take similar actions with respect to government documents. Therefore, the Court finds that Defendant "profits" by the attention, recognition, and contributions it receives in association with its copying and distributing the copyrighted O.C.G.A. annotations, and its use was neither nonprofit nor educational.

That's... insane. I mean, just about any nonprofit doing anything gets "recognition" for the work they do, and most nonprofits survive on grants and contributions. It seems quite troubling to argue that just because a nonprofit gets attention for doing the work it set up to do, that you can ignore that the use of a work was for nonprofit purposes.

The second factor is the nature of the work. Without much analysis, the judge calls this one even, saying that it's "at best, neutral, as between these parties." This was a surprise to me. At the very least, I figured this factor would fall towards Malamud, as it's pretty easy to point out that "the nature" of the work is the official laws of the state of Georgia and the officially "blessed-by-the-state" annotation for what those laws mean. It seems like that should definitely push the ledger to the "fair use" side. But, for unclear and unexplained reasons, the judge says this one is even.

The third factor was almost certainly going to go against Carl: it's for the "amount and substantiality" of the work. While we've covered multiple important fair use cases where it was determined that even using the entire work can be fair use, in this case, that was going to be a hard argument, and the judge gives this one easily to the state of Georgia: "In this case. Defendant has misappropriated every single word of every annotation using a bulk industrial electronic scanner." I'm not sure why the "bulk industrial electronic scanner" needs to be called out here, as that's really kind of unrelated to the fair use question, but the judge went with it.

Finally, there's the fourth factor, about the impact on "the market." And, again, this one goes to Georgia:

Plaintiffs have established the markets for the O.C.G.A. works: printed publications, CD-ROM, and subscription services. When considering Defendant's actions being performed by everyone, it is inevitable that Plaintiffs' markets would be substantially adversely impacted. A judicial decree that Defendant's wholesale copying of the copyrighted annotations constitutes a fair use would hinder the economic viability of creating and maintaining the O.C.G.A. because people would be less likely to pay for annotations when they are available for free online.

The judge goes on to note that poor, poor LexisNexis won't have any economic incentives at all if this sorta thing keeps up. Of course, LexisNexis is part of the RELX Group conglomerate that "only" brought it somewhere around $8.5 billion dollars in revenue last year. How will they ever survive if the one-man shop of Carl Malamud puts the official annotated code of Georgia online? And, of course, this also ignores the fact that the State of Georgia doesn't need to set up a relationship with LexisNexis whereby LexisNexis gets paid based on sales of the code. It could, just as easily, pay LexisNexis for the annotations and then make them freely available to help its own citizens. But, nope, the judge is quite worried about the profits of this mega-conglomerate, which might be hurt by this one man nonprofit who dares to profit from "attention."

Even if you agree that this is an accurate fair use determination, the whole situation seems unfortunate. Georgia suing someone for helping to make its own laws more accessible just feels pretty damn sleazy and against what a government should be doing for its citizens. Either way, in this round, Malamud, Public.Resource.org and the citizens of Georgia have lost big time, while the state of Georgia (and LexisNexis) have won. Over the weekend, Malamud told me that he will be filing a notice of appeal shortly.

Filed Under: carl malamud, copyright, fair use, georgia, laws
Companies: lexisnexis

Photocopying Textbooks Is Fair Use In India: Western Publishers Withdraw Copyright Suit Against Delhi University

from the let's-celebrate-a-rare-win-for-the-public dept

Back in September last year, Mike wrote about the remarkable court ruling in India that copyright is not inevitable, divine or a natural right. As we have been reporting since 2013, the case in question was brought by three big Western publishers against Delhi University and a photocopy shop over "course packs" -- bound collections of photocopied extracts from books and journals that are sold more cheaply than the sources. Although the High Court of Delhi ruled that photocopying textbooks in this way is fair use, that was not necessarily the end of the story: the publishers might have appealed to India's Supreme Court. But as the Spicy IP site reports, they didn't:

In a stunning development, OUP, CUP and Taylor & Francis just withdrew their copyright law suit filed against Delhi University (and its photocopier, Rameshwari) 5 years ago! They indicated this to the Delhi high court in a short and succinct filing made this morning.

This withdrawal brings to an end one of the most hotly contested IP battles ever, pitting as it did multinational publishers against academics and students.

The Spicy IP post has a useful short timeline of the case, as well as a link to the site's extremely detailed coverage of all the twists and turns of the saga, which is now finally -- and definitively -- over. Importantly, the case was:

one that ultimately tested the bounds of copyright law in India. And clarified that while educational photocopying is permissible, there are limits to this as well. And that any copying must comport closely with the intended purpose ("in the course of instruction"). In that sense, publishers have made some gains in at least ensuring that a complete free for all regime is not what is intended by the law. But a circumspect one, where the copying has to fall within the bounds of the educational exception.

Overall, this is a huge victory for educational access and public interest in India. And very welcome in a world that was witnessing a rather one sided ratcheting up of IP norms, at the cost of all else!

That's an important point. So often it seems that copyright only ever gets longer and stronger, with the public always on the losing side. The latest news from India shows that very occasionally, it's the public that wins.

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

Filed Under: copyright, fair use, india, photocopying, textbooks
Companies: cambridge university press, cup, delhi university, oup, oxford university press, rameshwari, taylor & francis

Chicago PD Uses Copyright To Refuse Release Of Its 35-Year-Old Deadly Force Training Film

from the public-interest,-private-control dept

When copyright is deployed as a censor, it usually means the removal of content. In the case of Freddy Martinez of Lucy Parsons Lab (instrumental in peeling back the opacity covering the Chicago PD's "black budget"), copyright is the excuse being given to prevent the release of information.

Martinez was hoping to obtain a copy of an instructional film the Chicago PD shows to incoming officers. This video -- made more than 30 years ago -- was highlighted in the DOJ's damning civil rights report. The DOJ noted that the video was outdated and the instructors presenting the film did absolutely nothing to ensure engagement or, you know, provide actual instruction.

From the report:

As just one example, a class we observed on deadly force involved officers’ viewing a video made roughly 35 years ago, prior to key Supreme Court decisions that altered the standards used to evaluate the reasonableness of use of force. The tactics depicted in the video were clearly out of date with commonly accepted police standards of today. Following the video, the instructor spoke for approximately thirty minutes, but did not give detailed information on justified versus unjustified use of deadly force or the standard of objective reasonableness — all essential topics for deadly force training. The training itself was inconsistent with CPD’s force policies, further undermining its utility in teaching recruits their obligations under Department policy and constitutional law.

That's not all the DOJ noticed. It also noticed no one in classroom seemed to care whether anyone got anything out of it.

Several recruits were not paying attention, one appeared to be sleeping, and there was minimal attempt made to engage the students in the lesson. In fact, the instructor arrived to the class ten minutes late and dismissed students twenty minutes early from this critical class on how CPD officers should use deadly force. The impact of this poor training was apparent. At the academy and during ride-alongs, our retained training law enforcement expert asked several PPOs to articulate when use of force would be justified in the field; only one PPO out of six came close to properly articulating the legal standard for use of force.

Naturally, a video on deadly force that puts new cops to sleep is something the public might be interested in seeing for themselves -- especially considering its contents are no longer aligned with Supreme Court decisions. Martinez filed a public records request for the video through MuckRock. The Chicago PD responded [PDF] by claiming copyright prevented the video's release.

Under 5 ILCS 140/7(1)(a) of the FOIA statute, a public body is allowed to withhold "[i]nformation specifically prohibited from disclosure by Federal or State law or rules and regulations implementing federal or State law." The Copyright Act of 1976, 17 U.S.C. §§ 101,et seq., grants only the holder of a copyright an exclusive right to reproduce and distribute copies of his work. [See 17 U.S.C. § 106]. Therefore, since the Department is not the owner of the copyright, CPD cannot reproduce said video.

As Martinez points out in his post for Lucy Parsons Lab, this would appear to be a pretty clear case of fair use. Worth litigating over? Possibly. Martinez initiated a public records lawsuit, but dropped it because the internet always provides.

The video, which was made in 1982, was available for purchase elsewhere on the Internet, however, and after some conversation in our Slack Channel, someone was able to locate the video on the Internet Archive, too. We had begun discussions about suing for the video under Illinois FOIA law because we believe it falls under the “Fair Use” exemption of the Copyright Act but because it is readily available for download, we dropped this prospect.

While the video remains live, plenty of people will have the opportunity to view a video plenty of Chicago cops slept through. Peter Falk narrates it, so it's not completely terrible. And viewing it from the comfort of your own computer is preferable to the option the PD extended to Martinez in lieu of sending him a copy:

You may contact the FOIA Division of the CPD to discuss a viewing of the requested video.

Granted, the CPD's copyright excuse is better than others we've seen offered by government agencies hoping to keep information out of the public's hands. The video was produced by a completely separate company and rights are apparently held by the Phoenix Learning Group. It's at that website that you'll discover this "training" film isn't actually a training film, but rather trimmed from a one-hour documentary that was produced to give TV viewers a little insight into police decision making, not provide cops with information they need to make solid use-of-force decisions. That explains the presence of Peter Falk. This also explains why CPD officers seem to know very little about deadly force and how to deploy it.

That's absolutely the point of public records requests like these: to let the public know why services they pay for -- like the city's policing -- are such a mess. This is just a small part of it, and it was nearly thwarted by copyright.

Filed Under: chicago, chicago pd, copyright, deadly force, fair use, foia, freddy martinez, police, public records, training

Celebrate Fair Use Week With A New T-Shirt From Techdirt

from the forever-less-a-day dept

Get your Copymouse t-shirts, hoodies, mugs and more »

It's Fair Use Week — time to celebrate the all-important safety valve on copyright law and oppose those who want to see it clogged up or removed entirely! Of course, for us that's pretty much every week, but this still seemed like a good time to launch our newest t-shirt design: Copymouse (also available as a v-neck, hoodie, women's tee, mug or sticker). As most of our readers know, Mickey Mouse has a real talent for evading the public domain (even if he has to drag the rest of our culture down with him) and this t-shirt lets you remind everyone of that fact — and the fact that we likely haven't seen the last of that fight.

Also, while all our gear artwork is available on request, for Fair Use Week we figured it was a good idea to make a vector SVG version of the artwork available from the get-go.

(P.S. don't forget to check out the Techdirt store on Teespring for our logo gear (in two styles) and our still-available I Invented Email gear.)

Filed Under: copymouse, copyright, fair use, public domain

Former RIAA Executive Attacks Fair Use

from the i-beg-to-differ dept

Correction: As some of you have noticed, we made a silly mistake in this post. Neil Turkewitz is not with the MPAA, but rather a former RIAA executive who is now with the International Center for Law & Economics, a think tank that reliably advocates for the MPAA & RIAA's positions.

This week has been dubbed fair use week by a whole bunch of organizations (mostly universities and libraries) as a chance to celebrate the usefulness and wonder that is fair use in protecting free speech, enabling creativity and inspiring innovation. As we've said many times in the past, fair use is an incredibly important concept -- if often misunderstood -- so it's good to see these organizations working together to better educate the public on why fair use is so key.

However, not everyone is so enthralled with fair use. The MPAA and RIAA are apparently so frightened by fair use that they, and some of its friends, have been posting weirdly uninformed screeds against fair use over the past few days. Some are more silly than others (such as one that tries to claim that the MPAA has never been against fair use, ignoring that the MPAA's long-time boss Jack Valenti once declared -- totally incorrectly -- that fair use wasn't in the law), but let's focus on the one that comes straight from a former RIAA top exec.

Neil Turkewitz, formerly of the RIAA and now the International Center for Law & Economics Senior Policy Counsel, has published a piece at Medium (a site that relies heavily on fair use to protect it from being sued into oblivion) pretending to honor fair use while actually criticizing it.

In honor of Fair Use Week, let’s begin by unmasking the false premise underlying much of the celebration of fair use — that is, that the basic objective of the copyright system is to achieve a balance between the “public interest” on the one hand, and the interest of private copyright owners on the other. In this formulation, the “public” interest is exclusively defined as the ability to get copyrighted materials as cheaply as possible, with free obviously being the best (since it is the cheapest) option.

Well, here's something where we actually sort of agree -- though for different reasons. I actually disagree with many fair use supporters in arguing that it's about "balance." I've been saying for a decade now that balance is clearly the wrong standard and it unfortunately presupposes that there are two parties in conflict here. That's not true. I still believe, strongly, that a more optimal copyright policy maximizes benefits for creators and the public (though it may squeeze out some gatekeepers...). The idea that there's some tug of war between two sides has poisoned the copyright debate, unfortunately.

But... that's not what the Turkewitz is really arguing here. The end of that paragraph is telling. Those who support fair use aren't just talking about "the ability to get copyrighted materials as cheaply as possible." They're talking about basic concepts such as freedom of expression and access to knowledge and information. That's different than just getting stuff cheaply. We're talking about education and learning and expression -- and rely on fair use not to infringe on someone's copyright (remember: fair use isn't infringement), but to be able to better express ourselves and to better educate.

But Turkewitz is building up a head of steam with this pretty massive strawman he's building, and nothing's going to slow him down:

Groups like EFF, Public Knowledge and re:Create employ emotive rhetoric in an attempt to demonize copyright, and to suggest that “copyright” protection is somehow a “special interest.” They say that they care about “creativity,” and that fair use is critical to the interests of society. Copyright owners agree, but unlike most declared champions of fair use, not only do we care about creativity as an abstract concept, but we actually care about creators and preserving the creative process.

What the hell does "preserving the creative process" even mean? Remember, first of all, that despite all the massive amounts of copyright infringement going on these days (which the legacy entertainment industry constantly reminds us about), we're actually seeing more music, more movies, more video, more books, more written works than ever before in human history. If it's truly the "creative process" that Turkewitz is worried about, well, then there's nothing to worry about. We're witnessing a golden age of content creation, much of it relying on fair use, despite the decades of "sky is falling" rhetoric from Turkewitz and his friends about how strong fair use and new internet innovations will somehow make all the content creators disappear.

Hasn't happened. Maybe it's time for the legacy entertainment industry to try something new, rather than just constantly rebooting or creating sequels to its own failed attack strategy?

We recognize that the creative process indeed is an evolutionary one, and that present creators draw upon past expression for inspiration. But standing on the shoulders of giants doesn’t require misappropriation, and anyone who tells you differently is selling something. Unfortunately, for Fairuseweek.org, and its allies, fair use tends to be little more than a useful slogan that has little to do with fairness, and which frequently masks commercial interests that want to distribute or otherwise make creative works available without licensing.

Yeah. Sure. Who might be "standing on the shoulders of giants" by misappropriation in order to "sell something"? Could it be... say, Disney? The company that copied the works of others willy nilly without licensing at all, and then claimed copyright over all of it? And, no we're not just talking about the public domain (another important concept that the MPAA has trampled on over the years), but the whole concept of "Steamboat Willy" which launched Disney, which was copied from a film a year earlier. Or... how about the record labels, many of whom got their starts by taking classic songs from African Americans and giving them to white artists, then claiming copyrights over those songs. And those same operations regularly helped out artists like Bob Dylan and Led Zeppelin who were famous for simply rewriting the works of others without giving credits to the original artists. Some of us believe that was pretty creative -- but for a former RIAA exec to whine about "misappropriation... without licensing" is, well, a bit rich.

And then we get this bit of pure unadulterated nonsense:

When was the last time that someone was inspired by fair use? Fair use doesn’t enthrall us…it doesn’t capture our imaginations and transport us to places far away or tucked away deep in our memories. So how about this — why don’t we all recognize that celebration of fair use is actually a celebration of the benefits of fueling original creative expression, for if we fail to produce cultural artifacts worth accessing, fair use becomes irrelevant. We have no interest in accessing that which we don’t value.

Of course, one could say the exact same thing about copyright itself. It is not "copyright" that inspires or enthralls. It is content. And, frankly, these days, I find myself inspired and enthralled quite frequently by works that rely on fair use, from mashups to documentaries and the like.

And, yes, if we fail to produce cultural artifacts worth accessing, that's a problem. But it's not a problem, because (again) we're producing more such works than ever before in history, and an awful lot of that is due, either directly or indirectly, to fair use and building on the works of others. How many creators today actually got their starts by messing around and copying the works of others, editing videos they pulled from YouTube, or playing cover songs and posting them on sites like YouTube? The fact that we don't (usually!) sue those people out of existence is often thanks to fair use protections, and that has helped build a new generation of creators who don't rely on the MPAA or the RIAA as gatekeepers (perhaps this is why they are really upset).

Thus, fair use is, on its own, an exceedingly odd thing to celebrate. “Fair” is contextual, and “use” assumes a desire to access. I propose to the folks at fairuseweek.org a renaming ceremony. How about “sustaining creativity week?” If we can succeed in allowing creators to earn a living from their craft, we will have greatly advanced the public interest, and produced a wealth of accessible cultural materials that enrich present and future generations. Now that would be something to celebrate.

Again, everything said here applies many more times to copyright itself. And, frankly, if you want to see lots of "sustainable creativity" your best bet is not to look at the MPAAs and RIAAs of the world (shall we point you to the litany of lawsuits over Hollywood accounting and RIAA accounting that highlight how those industries tend to screw over actual creators?) but rather to the technology enablers and platforms that the MPAA and RIAA have fought against for decades. Look at things like Patreon and Kickstarter and YouTube and Spotify and Netflix and Apple: all tech platforms that the industry fought over the years. All of which have helped create new sustainable models where a much higher percentage of the revenue goes to actual creators, and where fair use and greater creativity is celebrated and encouraged. But, I guess, that would conflict just a little bit with the MPAA and RIAA members' business models of being a gatekeeper and keeping all the profits.

Filed Under: copyright, creativity, fair use, fair use week, free speech, neil turkewitz
Companies: mpaa

Man Who Used Facebook Live To Stream Birth Of Child Loses Bid To Sue All The News For Copyright Infringement

from the abort! dept

The saga of Facebook Live marches on, I suppose. The social media giant's bid to get everyone to live-stream content that mostly appears to be wholly uninteresting has nevertheless produced some interesting legal stories as a result. The latest of these is the conclusion of a string of lawsuits filed by a man who used Facebook Live to stream the birth of his child over copyright infringement against many, many news organizations that thought his act was newsworthy.

It was in May of 2016 that Kali Kanongataa accidentally publcly streamed his wife birthing the couple's son. He had intended for the stream to only be viewable to friends and family, but had instead made the stream viewable by pretty much everyone. Even after realizing he'd done so, Kanongataa kept the stream public, leading over 100,000 people to view the video -- including some folks in several news organizations, who used snippets of the stream in news stories about the couple's decision to stream this most intimate of moments.

And then came the lawsuits.

In September, Kanongataa filed suit (PDF) against ABC and Yahoo for showing portions of his video on Good Morning America as well as the ABC news website and a Yahoo site that hosts ABC content. He also sued COED Media Group and iHeartMedia. In October, he sued magazine publisher Rodale over a clip and screenshot used on the website for its magazine Women's Health. Last month, he sued Cox Communications.

In November, ABC lawyers filed a motion (PDF) calling their client's use of the Kanongataa clip a "textbook example of fair use." ABC used 22 seconds of a 45 minute video in order to produce a news story that would "enable viewers to understand and form an opinion about the couple's actions."

ABC's motion, embedded below, goes on to patiently explain to the court and, presumably, to Kanongataa's crack legal representation, that the entire point of the Fair Use defense was to allow small amounts of works to be used for the purpose of commentary and in news stories. Were lawsuits like this one to be victorious, news in the era of the image would come to a screeching halt. And, since the stories generated by these news organizations centered on the newsworthy nature of a couple streaming this sort of thing in the first place, use of such clips and images was perfectly in line with Fair Use usage in their reports.

The presiding judge, Lewis Kaplan, appears to have understood this correctly, having tossed the lawsuit against ABC and the other defendants.

Judge Kaplan's order shuts down Kanongataa's lawsuit against ABC, NBC, Yahoo, and COED Media Group. A lawsuit against CBS and Microsoft was dropped in November, possibly due to a settlement. The case against Rodale is still pending and is also being overseen by Judge Kaplan. Kanongataa's lawsuit against Cox was filed in a different district and remains pending in the Eastern District of New York.

This really is about as textbook a case of Fair Use as there could possibly be, leading us to wonder what in the world the legal team Kanongataa had hired was thinking in filing this in the first place.

Filed Under: copyright, facebook live, fair use, kali kanongataa, news, reporting
Companies: abc, coed media, cox, iheartmedia, rodale, yahoo

Oracle Files Its Opening Brief As It Tries (Again) To Overturn Google's Fair Use Win On Java APIs

from the still-ain't-over dept

As was widely expected, back in October, Oracle announced its appeal of Google's big fair use win, concerning its reuse of certain Java API components in Android. If you've been following this (long, long, long) case, you'll recall that Google has won twice at the district court level. The first time, Judge William Alsup correctly noted that APIs were not subject to copyright, because copyright law clearly states that copyright protection does not apply to "any idea, procedure, process, system, method of operation, concept, principle, or discovery," and an API is a process, system or method of operation. However, the Court of Appeals for the Federal Circuit (CAFC), who only had jurisdiction over the case because it initially involved a patent issue, seemed unable to understand that an API is different from software and overturned the lower court's sensible ruling.

That resulted in the second case which was weird, because everyone had to tiptoe around the fact that basically everyone had assumed that APIs were not covered by copyright, in order to instead make a fair use argument, which ultimately succeeded. Oracle then tried to play some games to get that ruling overturned, but that failed miserably, when the judge pointed out that Oracle's argument was almost entirely based on a failure to read what Google had actually given them (Oracle had claimed that Google failed to disclose something important, when the reality was that Oracle's lawyers failed to read the material that Google had given them).

Anyway, now that things are back at CAFC, we have to hope and pray that the court doesn't muck things up any worse than it already has (and, trust me, it's mucked things up badly to the point that it's impacting a bunch of other cases). On Friday, Oracle filed its 155-page opening brief. Feel free to dig in, if you must, but the arguments are (mostly) basically what we expected. Oracle argues that Google's use is not fair use (basically saying the jury got it wrong). It further argues that the case should be sent back to the district court because it was prevented from presenting key evidence that would have undermined the fair use claim. And then, somewhat incredibly, at the end, Oracle continues to try to argue that Google concealed its plans to expand Android into PCs -- the very issue that Judge Alsup smacked Oracle down for when it was revealed that Google had shared that info, and Oracle just hadn't read it. In the filing, Oracle whines that Judge Alsup "blamed the victim" for not having read what Google actually gave them, saying that it was impossible to have read everything Google gave them because there was just too much stuff and this was a "needle in the haystack." That... seems pretty weak. Amusingly, at the same time that Oracle is complaining that Google gave Oracle too much in discovery, it also complains that Google clearly withheld more info. Throw any argument at the wall and see what sticks, I guess.

Frankly, this opening brief seems to really lean in to CAFC's notorious ignorance of how software works, and the fact that last time around it couldn't tell the difference between an API and software. It just keeps focusing on the agreed upon point that Google copied some of Java's APIs, but keeps calling it "copyrighted code." It's impossible to predict how CAFC will rule, because CAFC is frequently hilariously confused when it comes to how technology (and software in particular) actually work. But hopefully someone over there will take the time to figure it out. After all, there have been a few, somewhat shocking signs of enlightenment in the past few months at CAFC. Hopefully that continues.

Filed Under: android, apis, cafc, copyright, fair use, java
Companies: google, oracle

CBS & Paramount Finally Settle With Fan Film Axanar

from the took-'em-long-enough dept

A little over a year ago, we first wrote about the unfortunate situation in which CBS & Paramount had sued a group of people trying to make a fan film in the Star Trek universe, called Axanar. Beyond the basic legal questions, there was a bigger issue here. Paramount has actually been pretty good about allowing fan films. The difference with Axanar was that it was shaping up to be a really good fan film, with professional level actors, sets and staff. And that was what set off Paramount and CBS, who jointly hold the copyrights on Star Trek. The big question then is what's the line between a fan film... and an unauthorized derivative work? This wasn't necessarily a question in the past, but today with the ease of making films (and funding them through platforms like Kickstarter), it becomes a much bigger question.

Something of a wrench was thrown into the proceedings last May, when JJ Abrams and Justin Lin -- who are involved in the official new Star Trek films -- claimed on stage that they were quite upset with Paramount for going after Axanar, and claimed that they'd gotten word from the company that it was going to settle the lawsuit. Of course, in the intervening months, no settlement showed up, and the filings back and forth between the parties got more and more rancorous. Things were finally heading towards a trial in just a few days... but now a settlement has finally been reached.

Paramount Pictures Corporation, CBS Studios Inc., Axanar Productions, Inc. and Alec Peters are pleased to announce that the litigation regarding Axanar’s film Prelude to Axanar and its proposed film Axanar has been resolved. Axanar and Mr. Peters acknowledge that both films were not approved by Paramount or CBS, and that both works crossed boundaries acceptable to CBS and Paramount relating to copyright law.

That last bit is the most interesting, but not very surprising. Just before the trial, the judge in the case had ruled against Axanar, saying that they couldn't claim fair use -- which basically killed any shot they had of winning. So, with their back up against the wall, the best they could do was to come to a settlement admitting they'd gone too far and agreeing to make significant changes to the planned film:

Axanar and Mr. Peters have agreed to make substantial changes to Axanar to resolve this litigation, and have also assured the copyright holders that any future Star Trek fan films produced by Axanar or Mr. Peters will be in accordance with the 'Guidelines for Fan Films' distributed by CBS and Paramount in June 2016.

While not surprising, this is unfortunate on multiple levels. First, we wrote about those "Guidelines for Fan Films" when they came out: they're awful. They basically make it close to impossible to make a decent fan film. Even worse, many of the conditions in the guidelines go directly against what's allowed under fair use.

But the reason this is most unfortunate is this: the world will now never get to see what might have been a really good film. I know that some people like to attack Techdirt and me and claim that we're somehow "anti-creator" or "anti-artist" but we're not. We believe strongly in creators and enabling the best creativity possible -- and this kind of lawsuit shuts that down. It directly kills off plans to produce what appeared to be really good content. That's a cultural loss and it's too bad. The existence of Axanar doesn't take anything away from "real" or "authorized" Star Trek films with their huge budgets, special effects and stamp of authenticity from the studios. But thanks to this lawsuit, such creative content will no longer be made. And that's sad.

Filed Under: axanar, copyright, derivative work, fair use, fan film
Companies: cbs, paramount

Aussie Productivity Commission Doubles Down On Fair Use And Serious Copyright & Patent Reform

from the good-for-them! dept

Back in May we were both surprised and delighted by a thorough and detailed report from the Australian Productivity Commission noting that copyright was broken and harming the public, and that it needed to be fixed -- with a core focus on adding fair use (which does not exist in Australia). It similarly found major problems with the patent system. It was a pretty amazing document, full of careful, detailed analysis of the problems of both the copyright and patent systems -- the kinds of things we discuss all the time around here.

Of course, it was only a "preliminary" report, and that left it open that lobbyists would swoop in and destroy the report before it became finalized. But that does not appear to have happened. The final report was released right before Christmas (the document says September 23rd on it, because that's the date it was sent to the government, but it was only just released to the public -- and since they released it under a CC-BY license, we've reposted the whole thing below as well). It's a big document, clocking in at 766 pages. But the "key points" that the Productivity Commission released give you a pretty good idea of where they come down on a variety of issues -- and it's very much in line with the general thinking here at Techdirt:

• Australia’s intellectual property (IP) arrangements fall short in many ways and improvement is needed across the spectrum of IP rights.
• IP arrangements need to ensure that creators and inventors are rewarded for their efforts, but in doing so they must:
  • foster creative endeavour and investment in IP that would not otherwise occur
  • only provide the incentive needed to induce that additional investment or endeavour
  • resist impeding follow–on innovation, competition and access to goods and services.
• Australia’s patent system grants exclusivity too readily, allowing a proliferation of low-quality patents, frustrating follow–on innovators and stymieing competition.
  • To raise patent quality, the Australian Government should increase the degree of invention required to receive a patent, abolish the failed innovation patent, reconfigure costly extensions of term for pharmaceutical patents, and better structure patent fees.
• Copyright is broader in scope and longer in duration than needed — innovative firms, universities and schools, and consumers bear the cost.
  • Introducing a system of user rights, including the (well-established) principles–based fair use exception, would go some way to redress this imbalance.
• Timely and cost effective access to copyright content is the best way to reduce infringement. The Australian Government should make it easier for users to access legitimate content by:
  • clarifying the law on geoblocking
  • repealing parallel import restrictions on books. New analysis reveals that Australian readers still pay more than those in the UK for a significant share of books.
• Commercial transactions involving IP rights should be subject to competition law. The current exemption under the Competition and Consumer Act is based on outdated views and should be repealed.

Separately, in the "key points" section they highlight just how badly "international agreements" hinder smart copyright and patent policy -- which is quite interesting, given that Australia has been very, very active in negotiations on the IP section in the TPP, as well as in the awful ACTA negotiations from a few years ago.

I'm guessing most people won't read through the whole document -- but it's really got some great things in there. Unlike so many government reports on copyright issues, this one is careful and methodical, and actually establishes a clear framework for analyzing copyright and patents -- both the benefits and faults. It also includes details of all of the evidence and data that it used. Unlike so many other government reports on copyright and patents, this one is clearly evidence-based rather than faith-based. Too many seem to work under the assumption that copyright and patents are "good" and therefore more must be "better." Thankfully, this report is incredibly detailed and thorough, and focuses on all players in the ecosystem, including the public, whom these systems are supposed to benefit.

Honestly, there are great quotes and points on almost every page, and I could spend all day clipping out key quotes, but feel free to just dive in yourself and flip through the document below. It's too bad that the US government is too tied to specific legacy industries to produce a document as comprehensive and useful as this one.

Filed Under: australia, copyright, copyright reform, fair use, innovation, patent reform, patents, productivity commission

Command Line Interface Copyright Case: Not Fair Use... But Not Infringing Thanks To Scenes A Faire

from the we-didn't-put-the-accents-in-the-title,-since-they-break-some-rss-readers dept

While the Oracle/Google case tends to get most of the attention when people talk about the copyrighting of interfaces, there was another big "interfaces on trial" case that just completed between Cisco and Arista Networks. Cisco insisted that Arista was infringing on its Command Line Interface (CLI) by using some of the same commands that Cisco equipment used. Arista responded by pointing out that a command line interface is hardly unique, and Cisco itself had been pushing the command line interface as an industry standard, and also that this whole lawsuit was just silly (they didn't quite put it in those terms, but...). Like the Oracle/Google case, this one had a patent issue attached at the hip, which got tossed off early on. That matters, because it means that the inevitable appeal will go up through CAFC, the appeals court that specializes in mucking up patent law. CAFC infamously took its "mucking up patent" skills to copyright law a few years back, in the Oracle/Google case when it decided that APIs were copyright-eligible subject matter, upending years of common wisdom, legal precedent and the clear text of the Copyright Act about interfaces.

Of course, in the Oracle/Google case, after CAFC's disastrous decision, Google still came out ahead (so far) when a jury decided that its copying of the APIs was "fair use." In the Cisco/Arista case that just concluded, the jury went in a slightly different direction. It rejected the fair use argument, but still said the work wasn't infringing, because of the scènes à faire doctrine, which is one of those few copyright legal doctrines experts will throw in (along with "de minimis" when reminding people that fair use is not the only exception to copyright). The basis of scènes à faire is that it's something within the work where there are only a very small number of ways to do something, and thus, it's quite likely that multiple parties will do the same thing, meaning that any copyright will be greatly limited. Scènes à faire is French for "scenes that must be done."

In other words, the jury more or less said that using the command line interface was so basic to the operation of this kind of equipment, that it would be ridiculous to expect each vendor to come up with something different. Unfortunately, the jury didn't see the use as fair use, which Cisco has already jumped on as a sort of moral victory, but one that may come up later, if Cisco can successfully overturn the ruling on scènes à faire. Of course, if this case weren't forced to go through CAFC on appeal, it would have been nice to have been able to challenge the question of whether or not there's any copyright on Cisco's CLI at all, but thanks to CAFC's failure to comprehend that an interface is different than software, this is where we are. I fully expect that CAFC will somehow muck up this case too on appeal, but hope to be pleasantly surprised.

Filed Under: cafc, command line interface, copyright, fair use, interfaces, scenes a faire
Companies: arista networks, cisco