DRM Is The Right To Make Up Your Own Copyright Laws

from the why-anticircumvention-laws-are-a-problem dept

We've written about the problems of DRM and anti-circumvention laws since basically when we started way back in 1997. Cory Doctorow has been writing about the same stuff for just about as long (or perhaps longer). And yet, just when you think everything that can be said about this stuff has been said, Doctorow comes along and writes what may be the best column describing why DRM, combined with anti-circumvention laws, is so incredibly nefarious. Read the whole thing. It's so well done, and so important, I'm actually going to write two posts about it, because there are two separate issues that deserve highlighting.

The first concerns just how the combination of DRM and anti-circumvention is effectively a way that the content industry (and many other industries since) have been able to void the limitations on copyright law. Here's the key paragraph, which follows a discussion of the Reimerdes case, which more or less said that breaking any DRM is illegal in itself, even if the circumvention is done for legal reasons. And, because of that, we've taken copyright out of the law, and put it into the DRM:

Ever since Reimerdes, it's been clear that DRM isn't the right to prevent piracy: it's the right to make up your own copyright laws. The right to invent things that people aren't allowed to do – even though the law permits it -- and to embed these prohibitions in code that is illegal to violate. Reimerdes also showed us that DRM is the right to suppress speech: the right to stop people from uttering code or keys or other expressions if there is some chance that these utterances will interfere with your made-up copyright laws.

This is an important point summarized so perfectly that it deserves to be repeated over and over again. Because any circumvention of DRM is considered illegal, even if the purpose of the circumvention itself is legal, it basically gives not just "the copyright industries" but pretty much any industry the road map to stop people from making, say, fair use of copyrighted works. Or, worse, preventing them from tinkering with products they own. It allows them to wipe out fair use and other important user rights -- by just writing into code that it's not allowed, and even though that code is easily breakable, making that code breaking itself a form of "infringement."

In short, DRM with anti-circumvention restrictions lets industries simply route around the aspects of copyright law that are designed to protect the user's rights.

And, because of that, Doctorow wonders if there's a chance go to back and revisit the Reimerdes case, and bring back freedom to the public. As we've noted in the past, fair use is not, as some would have you believe, a "limitation and exception" to copyright, but rather a definition of the public's rights, whereby copyright is a limitation on those rights. DRM with anti-circumvention actually blocks those rights. Cory further points to another milestone case involving software, Bernstein v. US, in which it was determined that software was a form of speech, and that restricting it was a First Amendment violation. Doctorow notes that Reimerdes goes against that ruling -- and he thinks that this, plus a decade plus showing the damages done to the public's rights because of the anti-circumvention provisions of the DMCA, open up a real opportunity to revisit the issue:

No court case is ever a sure thing, but I believe that there's a good chance that a judge in 2014 might answer the DMCA/free speech question very differently. In 14 years, the case for code as expressive speech has only strengthened, and the dangers of censoring code have only become more apparent.

If I was a canny entrepreneur with a high appetite for risk -- and a reasonable war-chest for litigation – I would be thinking very seriously about how to build a technology that adds legal features to a DRM-enfeebled system (say, Itunes/Netflix/Amazon video), features that all my competitors are too cowardly to contemplate. The potential market for devices that do legal things that people want to do is titanic, and a judgment that went the right way on this would eliminate a serious existential threat to computer security, which, these days, is a synonym for security itself.

We've seen entrepreneurs take on these kinds of high risk/high reward challenges before (Aereo comes to mind, though so do ones that ended up failing in court, such as ivi and Zediva), so this seems like a very real possibility. This would be an important ruling not just to free up innovation, but to bring back the rights of the public, and to stop an encroachment that began years ago, entirely at the behest of a legacy entertainment industry who was focused on using mechanisms of control to remove the freedoms of the public, solely to protect an obsolete business model.

Filed Under: anti-circumvention, bernstein, code, copyright, cory doctorow, drm, fair use, free speech, reimerdes

Dr. Matthew Rimmer Takes A Closer Look At Fair Use

from the fair-use-of-the-week dept

For this week's Favorites of the Week, Dr. Matthew Rimmer wanted to focus in on some of the specific points that came up in the Congressional hearing on fair use earlier this week. While a bit different than our usual "favorites of the week" post, it's a really fantastic in-depth look at some of the issues, which I'm sure many of you will enjoy.

It is twenty years since the Supreme Court of the United States handed down its landmark decision on copyright law and the defence of fair use in the "Pretty Woman" case, Campbell v. Acuff Rose Music. Inspired by the jurisprudence of Justice Story and Justice Leval, Justice Souter developed a doctrine of transformative use. His Honour stressed that "the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works." Justice Souter observed: "Such works thus lie at the heart of the fair use doctrine's guarantee of breathing space within the confines of copyright, and the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use."

In January 2014, the United States Congress held a hearing about copyright law and the scope of the defense of fair use. The House of Representatives Judiciary Committee - through its Subcommittee on the Courts, Intellectual Property, and the Internet - heard a number of pieces of evidence and testimony. Mike Masnick provided an astute summary of the issues raised in the hearing on Techdirt. Brandon Butler said that the hearing put "transformativeness on trial."

Professor Peter Jaszi is a leading public scholar and intellectual on matters of copyright law. He was instrumental in co-editing landmark collections of copyright law and authorship, such as The Construction of Authorship. Jaszi was quick to argue against the introduction of a copyright term extension in the United States. He has written extensively about the operation of the copyright defense of fair use – writing works such as Reclaiming Fair Use with Patricia Aufderheide.

In his written evidence, Jaszi emphasized four themes to the United States Congress about the defense of fair use. First, he observed that a "citizen's ability to make some socially and economically positive uses of copyrighted material without permission is a right, and now widely recognized as such – including acknowledgements by both the Congress and the Supreme Court, which has stressed the connection between fair use and the freedom of expression secured by the First Amendment."

Second, Jaszi commented that "fair use is working." He emphasized: "Everyone who makes culture or participates in the innovation economy relies on fair use routinely – whether they recognize it or not." He commented: "What's notable about the current situation is that more and more business and practice communities are actively acknowledging the ways in which their contributions to our collective cultural and economic life depend on the ability to exercise the right of fair use in appropriate circumstances." Jaszi has been a part of a recent study considering how artistic communities grapple with questions of copyright law, permissions, and fair use.

Third, Jaszi stressed that the defense of fair use is patterned, reliable, and predictable. He scoffed at the complaints of critics that the defense was vague, uncertain, and unpredictable: "The current state of the law is proving those critics wrong."

Finally, Jaszi maintained that there was no pressing need to revise or reform the defense of fair use in the United States. He observed that "the last decade has seen a proliferation of decisions applying this flexible, purpose-based doctrine to uses in the digital domain, from the development of interoperable software products and Internet search technology, to the practice of remix culture, though mass digitization in the promotion of access to knowledge." Jaszi stressed: "In effect, in only a few short decades, the courts have developed a robust 'unified field theory' of fair use which is fully capable of meeting the digital challenge and should be allowed to do so."

In conclusion, Jaszi held that "the fair use doctrine adds materially to our cultural choices, our learning opportunities, and our access to innovation." He commented: "We can only wonder (with some bemusement) why some of our most important foreign competitors, like the European Union, haven't figured out that fair use is, to a great extent, the 'secret sauce' of U.S. cultural competitiveness." Countries like Australia are at a competitive disadvantage, because their defense of fair dealing is much more limited and restricted than the United States doctrine of fair use.

In his testimony, Peter Jaszi deftly responded to questions from members of the United States Congress. Congressman Thomas Marino asked whether fair use encouraged piracy. This conflation of fair use and piracy is misleading and meretricious. The copyright industries have increasingly sought to slander fair use, by demonizing the defense, and scapegoating the doctrine for industry concerns about copyright infringement. Jaszi commented that internet piracy is not fair use because it would not meet the four factors under fair use and does not constitute transformative use.

Parker Higgins and Mitch Stoltz noted: "One area that got significant attention was the topic of mass digitization, which has been repeatedly determined by courts to be a fair and transformative use." Jaszi defended the legitimacy of fair use precedents relating to Google Books and Hathi Trust. He maintained that such decisions were success stories, rather than problems. Jaszi made the strong point that the decisions promoted the fundamental principles of copyright law – the progress of science and the useful arts, access to knowledge and education. The Hathi Trust decision is particularly socially useful because it addresses the pernicious problem of disability discrimination.

Moreover, Jaszi also discussed the new fair use ruling involving the financial information company, Bloomberg. The debate in the United States Congress was further heightened by a new United States decision on copyright law and fair use. In the case of Swatch v. Bloomberg, the Court of Appeals for the Second Circuit held that Bloomberg's recording and distribution of an earnings call by Swatch was protected by the defense of fair use. The court commented:

In the context of news reporting and analogous activities, moreover, the need to convey information to the public accurately may in some instances make it desirable and consonant with copyright law for a defendant to faithfully reproduce an original work rather than transform it. In such cases, courts often find transformation by emphasizing the altered purpose or context of the work, as evidenced by surrounding commentary or criticism.

Mike Masnick commented upon the ruling: "All in all, a nice clear win for fair use even when the full work is used for commercial reasons."

Edward Black from the Computer and Communications Industry Association lamented that technology developers were not well-represented in the debate over copyright law and the defense of fair use in the United States Congress. He maintained that the defense of fair use was particularly important in facilitating a range of emerging technologies:

The same fair use principle that saved home video has also served MP3 players, DVRs, smartphones and a considerable portion of modern Internet functionality, like cloud computing, that we depend upon today. In recent years, we've seen courts invoke fair use to validate a variety of transformative, socially valuable services, including online search engines, including image and book search; commercial-skipping and time-shifting with DVRs; and a service that compares students' papers against a database for plagiarism (who, understandably, might not want to authorize use of their papers to prevent cheating).

Black concluded:"Not only does fair use serve extensive societal interests, it has been a commercial boon to the U.S. economy -- something policymakers should be interested in protecting."

Mike Masnick makes the strong point that "fair use is the public's right" and not only provides protection for "free speech" but enables "great and powerful innovation as well." The emergence of new technologies such as 3D printing and cloud computing will pose new challenges for copyright law, and the flexibility of the defense of fair use, and the doctrine of transformative use.

Remix Culture, Fan Fiction, and Transformative Works

Also for the same hearing, Naomi Novik, provided an eloquent submission presentation to the United States Congress on copyright law, fair use, and remix culture.

One of the founding members of the Organization of Transformative Works, Novik is an American writer who is best known for her Temeraire series, which tell an alternative fantasy history of the Napoleonic Wars, featuring dragons.

This was a timely submission given the copyright litigation of late over remix culture. There has been much copyright litigation over literary mash-ups such as The Wind Done Gone and 60 Years Later; appropriation art by Shepard Fairy and Richard Prince; and digital sampling and musical quotations; and television advertisements such as GoldieBlox's parody of the Beastie Boys.

Novik discussed the role of the defense of fair use with respect to remix culture, fan fiction, and mash-ups. She noted: "I am not a lawyer, but as one of the creators and artists whose work is deeply affected by copyright law, I hope to explain how vital fair use is to preserving our freedom and enabling us to create new and more innovative work." Novik maintained: "I urge Congress to not only preserve but strengthen fair use, to encourage still more innovation and creative work by more new artists. I would ask in particular that Congress consider improving protections for fair users, especially individual artists, who are threatened with lawsuits or DMCA takedowns."

Nostalgically, Novik recalled her early experiences, experimenting with fan fiction in an online remix community:

In 1994, while I was still in college, I first came across the online remix community. Over the next decade, before I wrote one word of my first novel, I wrote fanfiction, built online computer games, wrote open­source archiving software, and created remix videos. I met hundreds of other artists creating their own work, and found an enthusiastic audience who gave feedback and advice and help. I had no money for licenses or lawyers. Neither did my fellow artists. No one would have sold us one anyway. We weren't trying to make money off our work. We were gathering around a campfire to sing and tell stories with our friends. The campfire was just a bigger one, and instead of telling new stories about Robin Hood, we told new stories about Captain Picard, because that was who we saw on television every week. Fair use gave us the right to do that.

Novik emphasized: "Our work was transformative in every sense of the word." She stressed: "We weren't simply retelling the old stories — we were creating new stories, and ones that weren't being told." Novik commented: "We transformed the original work, and we transformed ourselves by doing so." She discussed how the creative community facilitated creativity: "We learned to think of ourselves as writers, artists, programmers, as creators." She observed: "We took our craft seriously and so did our audience, and that audience was invaluable."

Novik reflected that the history of art, literature, and drama has been one of borrowing:

Vincent van Gogh deliberately copied Japanese woodcuts so that he could find his own style. Shakespeare borrowed heavily from earlier sources. No one could deny that he transformed them. But imagine if the laws of his time had barred him from doing so. We wouldn't have Hamlet, we wouldn't have King Lear, we wouldn't have Romeo and Juliet. And if Leonard Bernstein hadn't borrowed from Romeo and Juliet, we wouldn't have West Side Story. Now if we prevent the next generation from borrowing from West Side Story, we cap the flow of creativity, we dam the river of innovation.

Novick indicted that "Original work, work that stands alone, doesn't just pop up out of nowhere." She stressed that "It is at the end of a natural spectrum of transformation." Novik emphasized that "Fair use protects this spectrum, this incubator if you will." She noted: "It's a space where artists can play with ideas and develop our skills, and share our work within a community and learn."

Novik was skeptical of arguments by copyright owners about the utility of copyright licensing as a solution instead of fair use. She noted: "Licensing is not a realistic option for most artists and communities who rely on fair use." Novik observed: "On the purely practical level, the vast majority of remix artists doing non-commercial work simply don't have any of the resources to get a license — not money, not time, not access." She stressed: "And speaking as a copyright holder, licensing is not a realistic option for most of us on the other side of the problem either." Novik commented: "I very much don't want the difficulty and legal risk and expense involved in coming up with a license and issuing one to everyone who would like to write their own story about becoming a dragon captain in the Temeraire universe." She emphasized: "And more importantly, licensing still doesn't work even if the practical considerations are removed, because licensing invariably stifles transformative work."

Naomi Novik was concerned about the impact of copyright lawsuits on remix artists. She pleaded:

I would ask Congress to make it easier for developing artists, who are often at a significant disadvantage currently, to exercise their fair use right. I have never received a cease­and­desist letter. But some of my fellow remix artists have, despite the fact that their work was completely noncommercial and highly transformative. It drove several of them completely out of the community and caused them to stop sharing their work, or it stopped them creating it at all. Virtually every remix video artist I know (including myself) has had their videos taken down from multiple platforms by automated systems that look for even minute fragments of copyrighted work. In order to restore them, if that's even possible, they have had to file counter­complaints in the face of terrifying automated warnings telling them that they could be fined enormous amounts of money, and making them feel like criminals.

She lamented the destruction of remix culture: "I have gone hunting for stories and art and videos that were so good they stuck in my mind even years later, only to find out that they had been yanked down and were effectively destroyed." In this context, there is a need for Fair Use Projects to ensure that creative artists have legal support, so that they can exercise their fair use rights.

In conclusion, Novik emphasized the importance of the defense of fair use to remix culture, amateur production, and fan fiction:

Our country is the world leader in innovation because here we ask those what if questions, and we are free to imagine what the answers look like. We're encouraged to look around us at the things that exist and imagine how we could make them better, how we could take them to the next level, how we could transform them.

That is the spirit behind fair use. Fair use invites us to tinker and transform, and it frees us to explore ideas and share them with one another. It gives new artists and creators more tools to play with early in their careers and facilitates the evolution of genres and new forms. Any narrowing of fair use is inimical to this spirit.

The eloquent submission of Novik was an important reminder that the defense of fair use plays a critical role in encouraging artistic expression, creative freedom, and cultural sharing.

Unfortunately, creative artists in other jurisdictions do not necessarily have the flexibilities of the defense of fair use under copyright law. In Australia, there has been much policy debate about the inadequacies of the current defense of fair dealing, which is limited to specific purposes. Notably, in the "Kookaburra" case, Men at Work's classic Australian anthem, "Down Under", was found to have infringed the copyright in a Girl Guide campfire song about kookaburras. This has led to much debate as to whether there should be a modernization of Australian copyright law, and the introduction of a defense of fair use.

The IT Pricing Inquiry, and the Australian Law Reform Commission heard a range of evidence, supporting the introduction of such a defense into Australian law. The new Conservative Government, though, seems antagonistic to law reform in respect of copyright exceptions. The new Attorney-General, George Brandis, has been sympathetic to the demands of copyright owners for stronger measures with respect to copyright enforcement.

Furthermore, there is a need to ensure that remix culture, fan fiction, and mash-ups are not penalized under the proposed Intellectual Property Chapter of the Trans-Pacific Partnership.

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Filed Under: copyright, fair use, naomi novik, peter jaszi

Confused Law Professor Cites Fraudulent Prenda Win As 'Proof' That There's No Problem With Statutory Damages

from the uh-what dept

The good folks over at EFF have a good review of the House Judiciary Committee's recent hearing on the scope of fair use, which we discussed earlier. It's a good read, but there's one note towards the end which is really incredible. One of the panelists, June Besek, of Columbia University, has been defending ridiculous statutory damages by arguing not only are they reasonable, but also that courts can handle circumstances where the damages awards should be lower based on circumstances.

However, as EFF points out, Besek's argument here is suspect, given that she just a few weeks ago sent a letter on this issue in response to the Commerce Department's green paper on copyright, in which she defends current statutory damages practices... by pointing to a ruling in a Prenda case making a defendant pay $6,000. Specifically, her letter notes the following:

There is no satisfactory rationale at this time for singling out individual file-sharers with regard to statutory damages. The majority of reported cases against individual file-sharers have been resolved on summary judgment or on default, with the statutory damage awards under $10,000.

And after the $10,000 is a footnote, where she points to three cases where courts granted awards of ~$6,000, including AF Holdings v. Bossard. You might recognize the name AF Holdings, better known as the shell company set up by Prenda Law which has been accused by multiple courts of being engaged in forgery and fraud in shaking down people into paying up. This seems like an odd choice for Besek to choose to support her position that statutory damages are not a problem, given that Prenda/AF Holdings has been using the threat of statutory damages on its bogus copyright claims to shake down millions of dollars from people without ever going to court.

In fact, the AF Holdings/Prenda fiasco is a perfect example of why statutory damages are so dangerous. They allow a new category of copyright trolls to go around sending out threat letters threatening the possibility of $150,000 awards, which lead many, many people to just pay up rather than go to court. For Professor Besek to use Prenda/AF Holdings as an example of how the system is working, at the very same time that the folks behind it are facing sanctions from multiple courts, have been referred to law enforcement and multiple local bars for discipline for their fraudulent actions, which were almost entirely predicated on using the threat of crazy statutory damages to make people cough up thousands of dollars is laughable.

And, it's not like Professor Besek used this example back when there was still some uncertainty about Prenda. She used in just a couple weeks ago, months after multiple courts had outlined the fraud AF Holdings was involved in. The fact that she would use that as an example of statutory damages working as intended suggests she is either ridiculously uninformed or dangerously confused about how statutory damages are used in practice.

Filed Under: copyright, fair use, june besek, statutory damages
Companies: af holdings, columbia university, prenda

Court Ruling Notes That For-Profit, Full Copy Of Audio, Without Commentary Can Also Be Fair Use, In Specific Circumstances

from the nice-to-see dept

Back in 2011, we were worried about the implications of a lawsuit between the Swatch Group and Bloomberg, concerning the recording and distribution of an earnings call by Swatch. In short, Swatch claimed a copyright on its own earnings call. Bloomberg, which obtained a copy of the recording done by someone else, made that recording available to its customers. Not only did this have interesting fair use questions, it also opened up the possibility that bizarre copyright claims could be used as an alternative to wiretapping laws to block perfectly legitimate recordings of phone calls.

Thankfully, the 2nd Circuit appeals court has issued a clear ruling noting that this use is fair use -- and that's true even though Bloomberg (1) used the whole thing (2) did so for commercial reasons and (3) did not add any commentary. This is important, because we regularly hear from copyright maximalist types who assume that if you do any of the above, it automatically loses the ability to be considered fair use. Here, however, the court clearly shows why that's not true, which should set a useful precedent for other fair use cases (at least within the 2nd circuit), especially when it comes in the context of "reporting."

The Court makes a few very useful statements in explaining why all of this is fair use. Take, for example, the issue of it being "commercial" in nature. While that may make it a higher bar to prove fair use, it clearly does not preclude fair use:

It is undisputed here that Bloomberg is a commercial enterprise and that Bloomberg Professional is a subscription service available to paying users. At the same time, we have recognized that “[a]lmost all newspapers, books and magazines are published by commercial enterprises that seek a profit,” Consumers Union of U.S., Inc. v. Gen. Signal Corp., 724 F.2d 1044, 1049 (2d Cir. 1983), and have discounted this consideration where “the link between [the defendant]’s commercial gain and its copying is . . . attenuated” such that it would be misleading to characterize the use as “commercial exploitation.” Am. Geophysical Union, 60 F.3d at 922. Here, Swatch does not contest that Bloomberg Professional is a multifaceted research service, of which disseminating sound recordings of earnings calls is but one small part. Moreover, it would strain credulity to suggest that providing access to Swatch Group’s earnings call more than trivially affected the value of that service. So while we will not ignore the commercial nature of Bloomberg’s use, we assign it somewhat reduced weight.

What about the lack of "transformation" as well as the lack of "commentary"? The Court explains why that doesn't preclude fair use, given the context.

In the context of news reporting and analogous activities, moreover, the need to convey information to the public accurately may in some instances make it desirable and consonant with copyright law for a defendant to faithfully reproduce an original work rather than transform it. In such cases, courts often find transformation by emphasizing the altered purpose or context of the work, as evidenced by surrounding commentary or criticism. See, e.g., Bill Graham Archives, 448 F.3d at 609–610; Nunez v. Caribbean Int'l News Corp., 235 F.3d 18, 22–23 (1st Cir. 2000). Here, Bloomberg provided no additional commentary or analysis of Swatch Group’s earnings call. But by disseminating not just a written transcript or article but an actual sound recording, Bloomberg was able to convey with precision not only what Swatch Group’s executives said, but also how they said it. This latter type of information may be just as valuable to investors and analysts as the former, since a speaker’s demeanor, tone, and cadence can often elucidate his or her true beliefs far beyond what a stale transcript or summary can show. As courts have long recognized in the context of witness testimony, “’a cold transcript contains only the dead body of the evidence, without its spirit,’” and “cannot reveal . . . ‘[the speaker’s] hesitation, his doubts, his variations of language, his confidence or precipitancy, his calmness or consideration.’”....

There is also an interesting discussion on whether or not the work was "published." Generally, it's much harder to win a fair use claim if the work was "unpublished" and Swatch insists this "work" was unpublished. The court agrees that it's unpublished, but also notes that Swatch invited over 300 analysts to the call and over 100 attended, so the fact that the recording wasn't "published" carries a lot less weight. In fact, the Court explicitly notes that something unpublished can certainly still be fair use -- and in fact, the law is fairly clear that if a work is unpublished, that doesn't preclude a fair use finding.

On the "amount and substantiality" of the work, the Court notes obviously that the entire work is being used, but again that does not preclude fair use. In fact, the Court notes, as the district court did, that this factor comes out somewhat "neutral" and is clearly outweighed by the wider benefit and good reasons to post the whole thing.

It is undisputed here that Bloomberg used the entire work. The district court acknowledged that “this generally weighs against fair use,” but found that the public interest in the information contained in the recording “is better served by the dissemination of that information in its entirety, including the incidents of oral speech that do not translate onto the page but color the purely factual content.”

[....] For the reasons already explained in our discussion of the first fair use factor, we agree with the district court that Bloomberg’s use of the entire recording was reasonable in light of its purpose of disseminating important financial information to American investors and analysts. The recording has independent informational value over and above the value of a written transcript or article, regardless of how many Bloomberg subscribers took advantage of that value in this instance. Like the district court, we accordingly weigh this factor in neither party’s favor.

Swatch also tried to claim that, on the fourth factor -- the impact on the commercial market -- the fact that it didn't try to sell the recording shouldn't matter, since it's the potential market that matters. The court is not persuaded, noting the risk of such a ruling would be creating a ridiculous rule.

While the loss of a potential yet untapped market can be cognizable under the fourth fair use factor, the potential market here is defined so narrowly that it begins to partake of circular reasoning. As Professor Nimmer has observed, “it is a given in every fair use case that plaintiff suffers a loss of a potential market if that potential is defined as the theoretical market for licensing the very use at bar.” 4 Nimmer on Copyright § 13.05[A][4]. To guard against this “vice of circular reasoning,” our case law limits our consideration to a use’s “impact on potential licensing revenues for traditional, reasonable, or likely to be developed markets.” Am. Geophysical Union, 60 F.3d at 930–31. The hypothesized market for audio recordings of earnings calls convened by foreign companies that are exempt from Regulation FD cannot meet this standard.

All in all, a nice clear win for fair use even when the full work is used for commercial reasons.

Filed Under: commercial use, copyright, fair use, full copy, publication
Companies: bloomberg, swatch, swatch group

Copyright Week: If We Want To Get Copyright Right, It's Time To Go Back To Basics

from the copyright-week dept

All week we've been posting stories for Copyright Week, discussing important elements of copyright law that are at risk of getting trampled or destroyed in the effort to reform copyright. These are issues that will be squashed almost entirely if we leave it to the lobbyists to hash out what a new copyright law looks like. Today is the final day of Copyright Week, which happens to coincide with the second anniversary of Internet Freedom Day -- the day that the internet spoke up and said NO!! the last time a group of lobbyist sought to change copyright in dangerous ways, with SOPA/PIPA.

So how can we get copyright right? Well, respecting things like transparency, the public domain, open access, the freedom to tinker and fair use are certainly important and necessary starting points.

But it goes much further than that. I think it's worth repeating the basic framework for copyright reform I suggested last year, because not only does it still apply, it appears that Congress has shown no interest in following that framework. Instead, they've still been setting everything up as a "blue team vs. red team" game where every proposal has someone arguing for the exact opposite, and everything is seen as a zero sum game, rather than looking for solutions that actually expand the opportunity for everyone. So here are the basic principles I suggested earlier, which I think bear repeating:

1. Pretty much everyone is both a content creator and a content consumer. Over and over again we heard about concerns of certain creators as if they were a separate class of people unrelated to the wider public. That's silly. Especially as we have copyright law today -- in which every piece of creative content is immediately covered by copyright at the moment the expression is set in fixed form -- we are all creators. Nearly every email you write is probably covered by copyright. Every creator is also a consumer of content, and that includes professional creators. Professional content creation often involves building off of the influences of other works. We should support that as well. Otherwise, we begin to treat copyright as a sort of welfare program for professional creators, which is never what it was intended to be.
2. Technology is just a tool. It is neither a competitor to, nor an enemy of, content creators. With so many Representatives setting up the debate as "content vs. technology," we start to go down a very dangerous and distorted path that has little to do with reality. As a tool, technology certainly can create challenges for existing and traditional business models, but also tremendous opportunity. Look at the success of platforms like Kickstarter today. Would anyone seriously argue that the "technology" company Kickstarter is "anti" creator? Similarly, we're seeing more and more artists succeed by embracing new technology platforms that enable them to do amazing things: Bandcamp, TopSpin, BandZoogle, ReverbNation, SongKick, Dropbox, SoundCloud, Netflix, YouTube, Facebook, Twitter, HumbleBundle -- and many, many, many more. The list literally goes on and on and on. These are the tools that so many content creators are embracing today to help them to be better able to create, to promote, to distribute, to connect and to monetize their works than ever before. To argue that this is tech vs. content, when the tech companies seem to be handing content creators the most useful tools they've ever had to be successful, seems ridiculous.
3. Every legislative choice has costs and benefits. Too often, it seems like those pushing a certain proposal like to only look at one side of that equation. If we're to have an effective debate over copyright reform, it should include an upfront look at the costs and the benefits, the conditions and the consequences of various decisions across the board on the public. The purpose of copyright law, explicitly, is to promote the progress. We should be weighing carefully whether or not each change really would promote progress of science and the useful arts.
4. Decisions need to be made based on empirical data. As we've discussed in the past, historically, copyright reform discussions have been almost entirely faith-based. This is why the claims of "everyone just wants stuff for free" are so concerning," since the data suggests that's not even close to true. Given the recent call for objective research that would be practical in the copyright debate by the US National Research Council, I'm hopeful that we'll actually begin to see some useful data for this discussion. Hopefully those in Congress will actually pay attention to the data, rather than continue to insist that blatantly false claims must be true.
5. Finally, and most importantly, the focus needs to remain on promoting the progress of science and the useful arts. It's not about "protecting" any industry or any class. It's about what most helps to promote overall progress. Each proposal should be judged on that standard.

After I posted this last time, I had two lobbyists accuse me of being insane (literally -- they claimed I had mental deficiencies) for daring to suggest that everyone is both a creator and a content consumer. Of course, there's an easy response to that: if not everyone is a content creator, then perhaps we shouldn't have copyright laws that automatically grant life + 70 years copyright to every email they write. But, really, if we can stop looking at copyright as some sort of silly war between "artists" and "technologists" we could actually make a fair bit of progress. Copyright was always supposed to be about benefiting the public -- and when innovation opens up new opportunities for artists and consumers alike, that can work hand in hand.

Rather than viewing copyright policy as a zero sum game where one party "winning" means someone else losing, let's recognize that the only real stakeholder is the public, and any policy should be designed to be best for the public, and that's one where both artists and technologists are better off as well, because new technologies enable artists to better create, promote, distribute, connect and monetize their works, while providing the public with more content, more choices, more ways to support, more ways to share, more ways to express and to communicate. And the end result, as we've seen throughout history, tends to be better for just about everyone -- with the exception of those who stay wedded to obsolete models that are built around being the gatekeeper for areas of friction that no longer apply.

Focus on what's best for the public and it will also be best for creators and technologists alike. That's how you "get copyright right."

Filed Under: benefits, copyright, copyright week, fair use, public domain, the public

Copyright Week: Fair Use Is Not An 'Exception' But The Rule

from the it's-your-rights dept

Update: This post was modified to better explain the role of the three-steps test in both Berne and the TPP.

Today is day five of Copyright Week, where the focus is on fair use. Earlier today we already had Michael Petricone's excellent post about the innovations and consumer benefits unleashed by the Betamax ruling, which hinged on the concept of fair use. Over at Wired, Automattic's (the makers of WordPress) general counsel, Paul Sieminski, also has a great post talking about how much innovation is enabled by fair use and why companies should be fighting more to support their users' fair use rights. Meanwhile, over at Public Knowledge, there's a good discussion of how the flexibility of fair use is important in enabling it to respond to new innovations. These are all great ways of looking at the issue.

I wanted to focus on a different aspect of fair use, however, and that's the unfortunate fact that it is often described (especially in official political discussions) as an "exception or limitation" to copyright. That implies, incorrectly, that copyright is "the normal state" and that fair use is something that can only be used in "exceptional" cases, where a political body has decided to carve out some small breathing space. But that's wrong. Fair use is about the rights of the public to speak, to make use of content, to comment, to criticize and to express themselves.

These are fundamental rights of the public -- not "exceptions or limitations."

It is, instead, copyright that has always been an "exception and limitation" on the rights to free expression. We can (and should) discuss and debate the proper levels of copyright and its limitations on expression. But to frame things as if fair use is a minor "exception" is a subtle but dangerous twist of language that copyright maximalists have been employing for far too long.

And it's a public right that is under threat. While negotiators were (after decades of negotiating) able to work out a WIPO Treaty for the Blind last year, copyright maximalists fought hard against it, because they were convinced that any attempt to expand what they called "limitations and exceptions" would set a dangerous precedent. And, if you look at things like the Trans Pacific Partnership (TPP agreement), the USTR tried to take credit for it being the first time that it was willing to include "limitations and exceptions" in a trade agreement. That, on its face, is true (and it's better than previous agreements, like ACTA, which ignored fair use and the public's rights entirely), but the wording does not in fact establish any limitations or exceptions: it sets out parameters that curb what limitations and exceptions countries are allowed to offer. The wording is based on a three-factor standard that is actually more restrictive than current fair use laws in the US. The standard is clearly modelled after the Berne convention, to which the US is already a signatory despite several differences, such as fair use, between US copyright law and that treaty's requirements. The TPP's "exceptions" would only serve to solidify these inflexible fair use requirements that the US currently, mercifully, defies.

Pay close attention to this issue as we go through the copyright reform process. Fair use isn't just some limitation or exception. It's not just -- as some have said -- a "valve" on copyright restricting speech. It is, instead, core to the very concept of free speech. It is the public's rights. Don't let the language twisters try to frame the debate as one about "limitations and exceptions" because if that's the debate, we've already lost. Fair use doesn't just enable all kinds of important innovations -- including much of the internet you use and love today. It represents a fundamental right of you to express yourself, and that right must not be taken away.

Filed Under: copyright, copyright week, exceptions, expression, fair use, free speech, innovation, limitations, public rights, rights

Authors Guild Apparently Can't Avoid Throwing Away More Money: Appeals Google Books Fair Use Ruling

from the and-on-and-on-it-goes dept

We had hoped that, after nearly a decade of fighting and losing, the nearly complete trouncing of the Authors Guild's ridiculous arguments against Google's book scanning project (by a judge, Denny Chin, known for favoring copyright holders), that the Authors Guild and its proudly luddite leader, Scott Turow, might finally take a step back from the brink and recognize that maybe, just maybe, Google's book scanning project isn't as evil as the organization insists. But, back here in reality, the Authors Guild is going to keep on keeping on with wasting the various dues its authors pay to be members... as it has officially appealed the decision, guaranteeing the throwing of more money away on a stupid lawsuit that serves no purpose other than to make it clear to the world that the Authors Guild is anti-technology, anti-creativity and anti-innovation.

The lawsuit paints the organization as completely out of touch. Plenty of authors have pointed out how incredibly useful Google's book scanning project has been for the sake of research and discovering other books (many of which lead to purchases). Publishers have pointed out that having books scanned by Google increases sales. It's difficult to see what the Authors Guild is arguing for, other than "progress is bad."

Filed Under: book scanning, copyright, fair use, scott turow
Companies: authors guild, google

Beastie Boys Not Letting Goldieblox Off; Launch Massive Countersuit

from the that's-unfortunate dept

Thought the GoldieBlox vs Beastie Boys fight was over? Nope. While Goldieblox had posted a blog post effectively conceding that it would drop the lawsuit and stop using the song, it appears that they made no move to actually drop the lawsuit (and given how quickly they filed the original lawsuit, it would seem that they could have dismissed it equally quickly). So, now the Beastie Boys have filed their response and countersued on a variety of theories.

Now, I know that many people who initially sided with Goldieblox "switched sides," arguing that this was all a publicity stunt by the company. I think there are two separate issues: whether you like this as a publicity stunt and whether or not the use of the song was infringing. Unfortunately, many people are conflating the two. I agree that it's crass and quite lame to use the legal system as a PR tool, and it certainly doesn't reflect positively on Goldieblox as a company. It's pretty clear they were itching for a legal fight and probably pulled the trigger on filing for declaratory judgment too quickly (though, contrary to the claims of some, filing for declaratory judgment when someone suggests you infringed on their rights is a fairly common practice, and there are plenty of good reasons to do so). But I think that's a separate issue from whether or not the use of the song was infringing -- and it's very important to keep the two issues distinct in thinking about the legal issues here.

Given a variety of factors it's not at all surprising that the Beastie Boys have countersued. They were clearly angry about the use of the song (since they have made it explicit they don't like their music used in advertising) and about how the whole situation went down with the declaratory judgment request being filed so quickly, after their lawyers had sent a basic inquiry. That said, it's still disappointing to see the Beastie Boys decide to ramp up the legal effort here, and it still seems like their case is not a strong one. We've already discussed how the Goldieblox use can be fair use, and that there are multiple legal precedents that support that position. The Beastie Boys counter that this is not fair use at all. If this doesn't get settled (and I'd bet good money that it does get settled), a ton of arguments will get thrown back and forth on this point. I can make what I believe is a very strong argument that this is clearly fair use, while others can counter with arguments why it's not. As with so many fair use cases, unfortunately, the end result is often the emotional decision a judge makes about whether it "feels" like fair use, and then works backwards to make the fair use factors fit the preconceived idea. It's a bit of a crapshoot, even as I think it should clearly be fair use.

The Beastie Boys don't stop there however, adding trademark infringement, unfair competition and publicity rights claims to their counterattack. Frankly, all of these seem incredibly weak. It is true that the original Goldieblox video did put "The Beastie Boys" in the title of the video, which some have suggested may have lead to confusion over whether or not the Beastie Boys supported the campaign. This is mainly the basis for most of these additional claims, but it seems rather weak. There's no denying that the song was a take-off on The Beastie Boys' song "Girls." The question is whether or not it was infringing and whether that take-off is a parody. Stating accurately what the take-off is based on isn't trademark infringement, unfair competition or a violation of the band's publicity rights, as it didn't suggest support or endorsement by the band. It just, accurately, noted that the song was a Beastie Boys song. If the use of the song was fair use, then it's perfectly reasonable, as well, to highlight where the song was from.

Two other interesting points from the lawsuit. First, the Beastie Boys highlight that Goldieblox had created ads doing similar take-off parodies (though, obviously they don't call it that) on other popular songs. But, again, if they are fair use then that doesn't matter. Making the case that this is a pattern of activity only makes a difference if it's not fair use. Second, the Beastie Boys are not messing around when it comes to the remedies sought. Not only do they want an injunction, but they're also asking for an "accounting" of how much Goldieblox made as a result of this campaign, and using that to argue for actual damages from Goldieblox.

We talk a lot about "statutory damages" in copyright law, because that's what most copyright holders seek, in part because they claim it would be too difficult to figure out "actual damages," but mostly because the statutory damages numbers are insanely high (up to $150,000 per infringement). Here, however, it appears that the Beastie Boys and their lawyers smell blood in the water, and recognize that if they can convince the court that the money Goldieblox made from people buying its products after seeing the ad are a form of "damage" to the Beastie Boys, they could potentially collect significantly more money -- all of which they are arguing should be handed over to the band (while reserving the right to go for statutory damages if the end result of that is more):

For an award of the Beastie Boys Parties’ actual damages and lost profits they have sustained as a result of GoldieBlox’s unlawful acts of copyright infringement and to recover from GoldieBlox the gains, profits, and advantages GoldieBlox has obtained as a result of the wrongful conduct alleged herein, in an amount to be determined at trial, or, at their election, an award of statutory damages...

This seems fairly extreme again. Even if we accept that this was a giant publicity stunt, and even if it drove a bunch of sales, to argue that all of the gains and profits belong to the band is pretty crazy. People didn't buy the toys because of the music. It may have helped draw attention to the toys, but it was the toys themselves that people were buying (and let's leave out the separate debate over whether or not Goldieblox's toys are actually any good -- that's an irrelevant tangent here).

In the end, it can reasonably be argued that Goldieblox poked the Beastie Boys with a legal stick as part of a publicity campaign, which is increasingly looking like a major strategic miscalculation (perhaps both on the PR side, since there's been so much backlash, and now on the legal side). The Beastie Boys have now hit back hard. This isn't surprising.

Still, even if you think that Goldieblox's actions are reprehensible from the stunt side, if you believe in the importance of fair use, it's disappointing to see the Beastie Boys make this move. As we've noted, the band itself relied on fair use for quite a bit of their own work, and a ruling in this case in their favor would tragically reduce fair use and limit the ability to parody, something that would truly be a loss for culture and society.

Filed Under: beastie boys, copyright, fair use, publicity rights, publicity stunt, trademark
Companies: goldieblox