Confused Jury Says Google Infringed On Oracle's Copyright, Sorta, But Maybe Not

from the if-it-was-fair-use,-it-wasn't-infringement dept

There was some indication last week that the jury in the Oracle/Google lawsuit was having trouble coming to agreement, and it appears that despite some effort to try to fix that, in the end the jury remained deadlocked on a bunch of issues. However, it did decide that Google infringed on Oracle's copyright in the Java APIs it used -- but what the jury punted on was whether or not those uses were allowed via fair use. This seems a bit odd, since fair use, despite supposedly being a defense, still means that there was no infringement. So, basically the jury said that Google may have infringed... which is pretty useless for a jury. Separately, the jury rejected the idea that Google infringed on the documentation of the APIs. It also found that Google did not infringe on the comments for some of the code, but did infringe on using rangeCheck in two files. That said, the jury again punted on whether or not the use was de minimis (which, again, would mean non-infringement).

According to The Verge (who is in the court room), the jury also wasn't buying the claim that Google relied on Sun's statements saying that Google's use was okay. The jury's main problem with Google's claim here wasn't that Sun hadn't made clear that the use was acceptable. It was that there wasn't much evidence that Google actually relied on such claims from Sun. I can understand why the jury might claim this, but I wonder why it would matter. Given that Sun made clear that Google's use was acceptable, in what world could you later turn around and claim that its use was unacceptable?

Either way, the fact that the jury couldn't come to an answer on the fair use/de minimis questions effectively sinks the entire process. Google immediately asked the judge to declare a mistrial, and the judge has supposedly asked both companies to prepare arguments over whether or not a mistrial should be declared, so this is far from over.

Filed Under: api, de minimis, fair use, java
Companies: google, oracle, sun

Google Points Out That What The Authors Guild Wants And What Authors Want Are Two Very Different Things

from the seems-relevant dept

As the still ongoing legal feud between Google and the Authors Guild has continued, Google is trying a new tactic: accurately asking the court why the Authors Guild should be appointed as the representative of all authors? Google pointed out that the Authors Guild -- somewhat notorious for its luddite view of the world -- is trying to turn the lawsuit into a class action, but that most authors don't mind Google scanning their books and making it easier for people to find them:

To prove this point, Google commissioned a survey of more than 800 authors about their opinions regarding the project. The majority of respondents, 58%, said they approved of Google scanning their books, while 28% were neutral and 14% objected. Almost three out of four respondents, 74%, said they don't believe that Google's scans would affect them financially, while 19% say they have or would benefit and 8% said they have or would be harmed.

Of course, the judge pointed out that there could be advantages to having the Authors Guild declared as the stand-in for all authors. For example, if Google actually wins, then that would make life easier for Google. However, Google's lawyer responded that the company wants the right result, not the most expedient.

“Wouldn’t Google be delighted that this is a class action if I find it’s fair use?,” Judge Chin asked Thursday.

“No,” Ms. Durie said. “We care institutionally whether the law is being applied correctly. The correct application is not to certify a class.”

Of course, the Authors Guild has a rather different take on all of this, insisting that "millions of authors" have been harmed by Google helping people find their books. I'm not quite sure how that makes much sense, but it appears that if the Authors Guild had its way, libraries would pay extra to build card catalogs, since, you know, that's making use of the works without a license.

Filed Under: authors guild, book scanning, class action, fair use, publishing
Companies: authors guild, google

Sad State Of Copyright: Guy Using Short Clips Of Music In Viral Videos Accused Of Infringement

from the ridiculous dept

Brian LaSorsa points us to the unfortunate case of Steve Kardynal, a pretty popular maker of funny online videos. There are all sorts of creative people who have been enabled to create and put their works out to the world thanks to things like YouTube. Kardynal makes funny sketches, with some of the most popular being his "Songs in Real Life" videos, in which he creates scenes where every so often the dialogue actually is a short clip -- between 3 and 10 seconds -- from a popular song. Unfortunately, as he notes in the video explaining what happened, the second one of these videos received a takedown from Sony (a year after it was posted):
Realizing that getting three strikes on YouTube means he would lose his account -- which already has about 100 million views -- he's pretty freaked out. In response, he's set his other "Songs in Real Life" videos to private to hopefully avoid getting any other strikes while he tries to figure out what to do.

While his videos are no longer available, with a little searching you can find them elsewhere. I don't know how long this will remain available, but here's someone who put all three of the "Songs in Real Life" videos into a single video. It's difficult to see how this isn't fair use, and I'd argue that this is a clear case of Sony engaging in copyfraud.

As Steve notes, all of the video clips are between 3 and 10 seconds. No one is going to reasonably claim that this takes away from the market for that song. Furthermore, as he also points out, he listed all the songs that were used in the description of his video and made it easy for people to go buy the songs. In other words, it's difficult to see how these videos didn't actually help the market for these songs, rather than hurt it. The Lenz v. Universal case showed that copyright holders need to take fair use into account when they issue DMCA takedowns, and it certainly doesn't look like Sony did so in this case.

But, really, what's even more interesting about this story is just how much it has impacted Steve. He talks about how he's afraid to lose all that he's worked on and how it's like losing a family member. This is the exact opposite of what copyright law is supposed to do. Here it's being used to stifle and shut down creativity. And while some may claim that what Steve feels is no different than what an artist whose work is infringed on experiences, it seems quite different, actually. With an infringement, an artist hasn't lost anything. It's just that their own wishes for how the music is used or paid for gets denied. In this case, the content is actively being shut down. There's a real loss. That's unfortunate.

Filed Under: comedy, copyfraud, fair use, songs in real life, steve kardynal, viral video
Companies: sony, youtube

Cultural Insanity: You Can't Show A Painting In A Movie Without Paying The Copyright Holder

from the this-makes-no-sense dept

The NY Times has an article about yet another ridiculous bit of copyright law, the fact that moviemakers have to license artwork, even if they own the physical piece to show it in a movie. And it gets even worse, when you find out that the ridiculous position of the Artists Rights Society (think the RIAA/MPAA for artists) is that the newly released 3D version of Titanic needs a new license, because its use of artwork is somehow not covered by the original license:

It is there in the new 3-D version of “Titanic,” as it was in James Cameron’s original film: a modified version of Picasso’s painting “Les Demoiselles d’Avignon” aboard the ship as it sinks.

Of course that 1907 masterpiece was never lost to the North Atlantic. It has been at the Museum of Modern Art for decades — which is precisely the reason the Picasso estate, which owns the copyright to the image, refused Mr. Cameron’s original request to include it in his 1997 movie.

But Mr. Cameron used it anyway.

After Artists Rights Society, a company that guards intellectual property rights for more than 50,000 visual artists or their estates, including Picasso’s, complained, however, Mr. Cameron agreed to pay a fee for the right to use the image.

With the rerelease of “Titanic,” the society wants Mr. Cameron to pay again, asserting that the 3-D version is a new work, not covered under the previous agreement.

Of course, I recognize that ownership of the image is different than holding the copyright in the image -- though I'm a bit surprised that most art purchases don't include a copyright assignment or at least a permissive license as well. But it strikes me as ridiculous that the use of such images in a movie -- especially in passing -- isn't a clear case of fair use. This highlights the ridiculousness of the "permission-based society" we live in, where even if you own something, you don't really own it.

Why do we let this kind of craziness happen? Why don't we, as a society, stand up and point out that it makes no sense. If you have possession of the painting, why shouldn't you be allowed to use it in a movie? Even if you don't have the painting. How is having that painting in the movie, in any way, harming the economic value of the painting? The answer is that it is not. If anything, it's increasing the prestige and value of the painting... and it's doing all of that for free.

Think of it in a slightly different context. These days, when other products are seen in movies -- like a can of Coke, for example -- it's often there because of product placement. That is, the provider paid for it to be in the movie. Couldn't you make an argument that artwork that shows up in movies gets the same sort of benefit of the attention of the moviegoers? Why is it, then, that filmmakers are expected to pay a license to have the artwork, but get paid to have the Coke can?

Filed Under: 3d, artwork, fair use, licensing, moma, picasso, titanic

The Chilling Effects Of Copyfraud: Blocking A Researcher From Fair Use... And Scaring Him Into Staying Quiet About It

from the chilling-effects dept

I recently came across yet another story of copyfraud, but due to the nature of our litigious society and the way in which certain companies over-aggressively defend their rights, I need to prevent many of the details from being explained here, and have had to anonymize nearly everything. A family friend recently published a very interesting research paper on a popular topic. To demonstrate a certain point in the paper, he found a perfect image from a book that was published over 50 years ago. Again, to avoid identifying the situation, I cannot provide any more info, other than to say that this the image represented a tiny portion of a much larger work -- and that its usage without a doubt met all of the criteria of a typical fair use defense. The use was for non-profit educational purposes, it was a tiny part of a much larger work (and, in many ways, an inconsequential piece of that larger work, even if it was perfect for the point being demonstrated). The effect on the market for the original work was at worst nil, and at best positive, in that it might cause people to seek out the original work. In my review, it appears that the original work is now long out of print, and it is available only by collectors at an extremely high price. Thus, the use of the work is not for this person's financial benefit, and has absolutely no impact on the original publisher.

Even so, because we unfortunately live in a society where it's been drilled into our heads that you must get permission (even if the entire purpose of the fair use doctrine is for situations like this where no permission is needed), my friend reached out to the very, very large and well known conglomerate that holds the copyright on the original. He explained what he wanted to do and why, very clearly and concisely. The company's response was actually quite friendly, all things considered, and the person who responded appears to reject his request regretfully, noting that she is "in the unenviable position" of having to say no. The reasoning, the letter states, is that the work is protected by intellectual property laws and that the company "must be constantly vigilant and sometimes stringent in exercising control over their use."

There are significant problems with this. The whole point of fair use, again, is that these kinds of uses do not need permission. Furthermore, while trademark law does require some level of "vigilance," the same level of vigilance is not required for copyright law, and it is entirely possible to turn a blind eye to such usage and not lose the powers that copyright grants. Finally, there would be no harm at all in allowing this or even granting the guy a simple license. That would take away nothing from the company's IP rights.

But the bigger issue to me is actually the chilling effects that this situation has had. After sharing all of these details with me, I asked if he would be okay with me publishing the story with the full details. And he refused. Despite recognizing the near certainty of winning any legal dispute (as well as the fact that it is unlikely he would actually get sued), the very small risk alone is too much to bear. The idea that a massive global conglomerate might suddenly choose to sue this guy for some non-profit research he did out of personal interest -- just because of a single graphic to (humorously) illustrate a single point -- just isn't worth it. And that's the classic tale of a chilling effect of copyright law. Scaring people into not speaking up or not presenting their story.

Filed Under: chilling effect, copyfraud, education, fair use, permission

Rush Limbaugh Issues DMCA Takedown To Censor Video Criticism

from the can't-take-the-heat dept

Radio personality Rush Limbaugh apparently has decided he can't handle criticism well, so he's abusing the DMCA to take down a video critical of him. The video does use Limbaugh video, but it seems like a pretty clear case of fair use. And, if we go by the standard established in the Lenz v. Universal case, those issuing a takedown are supposed to first consider fair use. If Limbaugh failed to do so, he could run into trouble.

But, more to the point: WTF? Why do people keep abusing the DMCA solely to silence free speech that criticizes them, at the same time they claim to be supporters of the First Amendment. You would think, by now, that Limbaugh has enough advisers who might recommend against taking down a silly YouTube video no one's watching any more -- but he seems to keep doing it, even if it seemingly goes against many of his claims.

Filed Under: dmca abuse, fair use, lenz v. universal, rush limbaugh

Men At Work Musician Found Dead; Ridiculous Copyright Ruling Against Band Blamed

from the copyright-victims dept

While the iiNet case has been nothing but good news for copyright in Australia, over the past few years, at nearly the same time, there's been an important copyright case concerning fair use that has been nothing but an ugly splotch on Australian copyright law: the fight over whether or not the band Men at Work infringed on the copyright of an old Australian folk song, Kookaburra. The details of the case were really stunning once you looked at them. The Men at Work song clearly had a very brief flute line that paid homage to the folk song, but was an entirely different song on its own. Furthermore, the lawsuit came many decades after the song, "Down Under," had been a huge hit. At best, the case should have been dumped for the delay in bringing it. Even more ridiculous, the holder of the copyright, Larrikan Music, didn't even notice the supposed infringement itself, until an exec heard about it on a TV trivia show.

Still, bizarrely, the Australian courts repeatedly ruled in favor of Larrikan. When Australia's High Court refused to hear the appeal, the awful appeals court ruling stood, saying that the song infringed, and 5% of its royalties belonged to Larrikan.

As a bunch of people are sending in, it appears that this story has a truly tragic ending, as Men at Work band member Greg Ham has been found dead -- with multiple stories suggesting that this particular case and the ruling completely destroyed his life:

"I'm terribly disappointed that that's the way I'm going to be remembered - for copying something..."

Other reports say that he was so distraught over the ruling, he went back to using heroin and abusing alcohol. While he clearly had issues to deal with beyond this, it does appear that the ruling helped push him over the edge. That's really quite tragic.

Filed Under: australia, fair use, kookaburra, men at work
Companies: larrikan music

UK Entertainment Industry: Fair Use Hurts Economic Growth

from the are-these-guys-serious? dept

Just as we're seeing increased recognition about the importance of exceptions to copyright law in making sure that creativity can thrive, you have a bunch of the biggest copyright trade organizations in the UK putting out a document that completely trashes the notion of copyright exceptions. In a list of "myths about copyright" the most stunning one is:

‘…exceptions deliver economic growth...’

Wrong. Exceptions remove the core asset value of the creative work and so reduce incentives for creators for greater economic activity. An exception may benefit the public sector, but that has to be weighed against the loss of revenue to the creative sector of the economy. Far better for the Government to examine ways of modernising copyright licensing that incentivise digital businesses and creators together, so that consumers pay a fair price and creators receive a fair reward and incentive.

This shows a rather stunning, and near total, misunderstanding of culture, creativity and economics, all in one brief paragraph. That's impressive! First of all, exceptions do not "removed the core asset" of the creative work. The core asset of the creative work is the creative work. And that remains in place. All it does is allow for a few specific uses that, for the most part, do not interfere with the economic prospects of the work, and can often increase the value of the work itself.

Second, claiming that exceptions "reduce incentives for creators" is flat out ridiculous. The US has had fair use rules in place for decades (the UK does not, and that's part of what they're arguing against), and it's widely recognized how useful fair use has been in creating incentives for creators to create without having to be bogged down with asking permission and paying tolls. Imagine where hugely successful TV shows like The Daily Show would be if it couldn't make fair use of news clips?

Next, it's a bizarre statement to note that an exception may benefit the public sector... and then to diminish that because the entire point of copyright law is to benefit the public sector. This suggests, ridiculously, that the industry associations that signed this letter actually believe having artists get paid and "the public benefit" are in eternal conflict -- what's good for one must be bad for the other. That's ridiculous. There's a situation where the public benefit is maximized, and it's the same point at which content creators are creating good works for them that are accessible. Finally, if we want to "weigh" the losses from copyright exceptions, that's great, but that's never what the industry does. It most certainly doesn't seem to want to look at all of the revenue gains from fair use as well. The fact that more people can create by building on the works of others without having to pay, and without having to get permission, is a huge boon for creativity, including the creativity of new works. And, often, that will drive commercial benefit to the works used that way. Just as an anecdotal example, I've been listening to a bunch of mashups lately, and some of the really good ones created massive new interest from me for artists that I'd never even known about before. And that's only happening because of the "exceptions" to copyright law.

The statement by the industries is so out of touch both with economics and the realities of the creative industries, that if I were a creative person represented by one of these organizations, I'd be horrified.

Filed Under: copyright, economic growth, entertainment industry, exceptions, fair use, uk

Should There Be A Right To Copyright Exceptions?

from the something-in-the-air dept

Last month I wrote about how the Netherlands is looking to introduce new flexibilities into its copyright laws, based on some interesting research on copyright exceptions. There must be something in the air, because a wide range of other groups are contemplating exactly the same approach.

For example, the main document of the UK government's consultation on copyright (pdf) devotes no less than 65 pages to the area, proposing exceptions for private copying, preservation by libraries and archives, research and private study, text and data mining, parody, news reporting, and use by the disabled, among others.

On the other side of the globe, during the Melbourne round of the secret TPP negotiations, a group of high-powered tech companies have been urging the inclusion of copyright exceptions as part of that treaty. As Sean Flynn explains:

the Computers and Communications Industry Association (CCIA) -- representing tech companies like Google, Facebook, E-Bay and Yahoo -- has been circulating a new proposal for adding copyright limitations and exceptions to "permit the smooth functioning of the Internet." It is incredibly well researched and supported and includes some good ideas. My favorite among them is a proposal for mandatory flexible limitations and exceptions to copyright in every system:

"Such exceptions and limitations shall permit the utilization of works and other subject-matter to the extent justified by the purpose of free expression (including commentary, criticism, and news reporting), participation in the cultural life of the community, transformative use, teaching, research, scholarship, personal use, and the functioning of, and innovation in, the digital environment, provided that such utilization is consistent with fair practice."

Finally, and perhaps most surprisingly, the French copyright enforcement body, HADOPI, has released a detailed questionnaire on copyright exceptions (pdf in French) as part of its research into the subject. Here's the introduction explaining the thinking behind the move:

Exceptions to copyright and neighboring rights represent the search for a balance between the need to respect copyright and neighboring rights and that of allowing the use of works with areas of freedom for the benefit of users.

This balance seems challenged today. Indeed, the development of new technologies, leading to new uses of works, (internet, social networks, streaming, cloud, scanning ...) and blurring the line between private and public, calls into question a law developed in part for a completely different context, and insufficiently adapted to these new uses.

This challenge is twofold. First, from a legal viewpoint, the current texts on exceptions do not take into account these technical developments and current uses of works in a fully satisfactory manner. This results in an increasing reliance on rights other than intellectual property, in particular Community law, in order to circumvent imperfections (competition law, human rights ...). Secondly, in terms of use, the ease with which a work may be appropriated and transmitted seems to render meaningless the concept of exceptions and raises the question of their suitability for the current context.

It therefore seemed useful to Hadopi to undertake this project to take stock of the issues and, where appropriate, make recommendations to address shortcomings of the present system and attempt to define a more satisfactory balance representing a new consensus. This new balance would not be limited to amending and supplementing the exceptions to copyright and neighboring rights, it could aim to establish a "right to exception" or a "right of exception", including the development of an independent legal doctrine, enforceable before judges and on a par with intellectual property law.

That's pretty bold, and extremely welcome coming from this particular organization, which hitherto has seemed to be more aligned with the maximalist view of copyright. If even HADOPI can see the need for not just copyright exceptions, but a generalized right to exceptions, maybe there is hope after all.

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Filed Under: copyright, exceptions, fair use

C&D Squashes Seuss-Style Satire: Where Did The Idea/Expression Dichotomy Go?

from the blue-eggs-and-spam dept

One aspect of fair use that often confuses people is the distinction between parody (which is well-established as fair use in many circumstances) and satire (which is not). The basic distinction is that a parody that makes use of a copyrighted work is doing so to comment on that work, while satire that makes use of a copyrighted work is doing so to comment on something else. The legal reasoning is that in the former situation, use of the work is necessary because it is intrinsic to the commentary, but in the latter situation it is unnecessary because the same commentary could be made in another way.

Unfortunately, the distinction is not always so clear. Illustrator Danny Hellman recently discovered this after completing a series of illustrations in the style of Dr. Seuss for a book about declining job prospects for recent graduates, itself written in the Seussian style (and presumably inspired by the tradition of reciting Seuss' Oh, The Places You'll Go! at graduation ceremonies).

A few months into the project, (after I’d turned in about half of the book’s 80 or so illos) the publisher sent promo materials for the book out to retailers. Apparently, some wicked, Grinch-like person felt compelled to pass these materials along to attorneys who work for the Ted Geisel [Dr. Seuss] estate, at which point this flock of legal carrion birds descended on my publisher much as the Onceler clan does on a newly-discovered forest of virgin Truffula trees.

Okay, enough of the Seuss metaphors. Suffice to say that my publisher was hit with a Cease & Desist letter, and the project was killed, in spite of our well-established First Amendment right to commit parody.

While I'm sure that the estate would have sent a C&D no matter what, in this case the parody defence is likely not as strong as Hellman assumes, because the book was not commenting on Seuss and his work, but rather on an unrelated topic, making it more satire than parody. There's also the possibility that trademarks are involved, which would be a different story, but without actually seeing the C&D it's hard to say. Assuming, as Hellman suggests, copyright is indeed the core issue, this situation is comes down to an even more fundamental question: can an artist's "style" be protected by copyright? Let's take a look at one of the images in question:

Yes, it is distinctly Seussian, but it does not replicate or make use of any of Seuss' actual work. This is an example of the failure of the idea/expression dichotomy that is supposed to be central to copyright law. In theory, ideas are not covered by copyright, only the fixed expression of those ideas, but while some argue that the distinction is clear and obvious, the fact is that's rarely the case. An artist's signature style is, in one sense, a part of the specific expression, but in another sense it is a collection of artistic ideas that dictate expression. If style can be protected, it creates a problematic double standard: could someone, for example, get away with reproducing a Seuss book in full using a different style of art and writing? Unlikely. But if they also can't tell a different story using the Seussian style then... suddenly there is no "idea" side of the dichotomy at all.

The real issue is that it's highly subjective, creating situations where judges must play art critic to determine if something is infringing. So a book like this can easily be killed by a C&D, since the publisher isn't going to risk a lawsuit when they have no clear standard telling them if the work is infringing. That creates a massive chilling effect on art, and gives rightsholders too much power to squash anything they don't like, with or without a firm legal basis.

Lack of clarity on key concepts like parody/satire and idea/expression is one of the biggest problems with copyright law today. When artists have no way of knowing whether something is infringing, it limits their creativity, and everyone is worse off. A firm, clear definition of the idea/expression dichotomy (and one that errs on the idea side, as was always the intent, since fair use is supposed to be what stops copyright from violating freedom of speech) would go a long way towards fixing a broken law.

Filed Under: cease and desist, copyright, danny hellman, dr. seuss, fair use, idea expression dichotomy, parody, trademark