Historical Audio Recordings Disappearing; Copyright Partly To Blame

from the yet-again... dept

Recently, we pointed out that various film archives were disintegrating, and noting that perverse copyright laws were partly to blame. Now, Copycense points us to the news that experts are also quite worried about audio recordings degrading and disappearing -- including recent recordings, such as from 9/11 and the 2008 election. This is part of a study commissioned by the Library of Congress -- so it's not just some random researchers. Thankfully (unlike the article on films) the study and the reporting about it highlights the copyright issue:

A hodgepodge of 20th century state anti-piracy laws also has kept most sound files out of the public domain before U.S. copyright law was extended to sound recordings in 1972. The study found only 14 percent of commercially released recordings are available from rights holders. That limits how much preservation can be accomplished, Brylawski said.

The full study (The State of Recorded Sound Preservation in the United States: A National Legacy at Risk in the Digital Age (pdf)) suggests that copyright laws be changed to deal with the archival problem. The study mentions the famous (and mostly ignored) UK Gowers study that found that extending copyright was a mistake (Gowers later admitted, separate from the report, that the economic evidence clearly indicated copyright terms should be shortened). The study also quotes many researchers, academics and archivists who point out how copyright law has made it quite difficult for them to do basic research and other useful things without violating the law.

While fair use is frequently invoked, there is little case law interpreting its application to specific situations. Some archivists believe the lack of applicable case law discourages institutional general counsels from authorizing preservation and access programs on the basis of fair use. Fair-use provisions in the copyright law (Section 107) permit use of excerpts of copyrighted materials, including recordings, for educational and scholarly purposes, for citation in news reporting and criticism, and for nonprofit activities. However, the courts have interpreted fair use to be an affirmative defense. In other words, the burden is on the defendant to prove fair use; the plaintiff does not need to establish that the use falls outside fair use. Besek further notes that "favored uses are not automatically deemed fair, and other uses are not automatically unfair. The determination depends on the facts of a particular case."

Most witnesses at the hearings conducted in support of this study who were affiliated with educational institutions expressed a belief that copyright law as it applies to sound recordings is too complex to interpret easily, too restrictive, or both. Section 108, for example, which limits access to digital copies made available under that section to library premises, is too narrow to address all educational needs. One witness called for "premises" to be expanded to include network domain, in order to accommodate "the manner in which students and scholars use information in the current academic and scholarly environment. Increasingly, learning is occurring off-site, that is, at home, in the dorm or just anywhere on campus, in addition to the classroom and library."

Separately, the report notes that DRM and the DMCA's anti-circumvention provision is a real problem for researchers and archivists.

In the end, the study says that copyright law needs to change to deal with this very real challenge:

Creation of new copyright laws or licensing procedures that acknowledge best practices in audio preservation and assure access to audio heritage is essential to ensure the preservation of that heritage and its understanding and appreciation by generations to come.

It then repeats five suggestions made by The Association for Recorded Sound Collections (ARSC), such as changing the fact that pre-1972 recordings are all limited under ancient state laws, rather than federal copyright law (meaning they won't be in the public domain for much, much, much longer than more modern recordings). They also suggest moving copyright term back (just slightly) to 50 or 75 years, supporting orphan works legislation, enabling compulsory licensing to copyright holders for anyone wishing to reissue "abandoned" recordings and allowing non-profits to backup and archive sound recordings without violating copyright. The recommendations are, frankly, a bit weak, but in an era where the government only seems to want to strengthen copyright, it's nice to see at least some effort to push back in some areas. Of course, the likelihood of the Library of Congress actually following through on any of these recommendations seems slim at best.

Filed Under: archives, copyright, history

Back When The Senate Tried To Ban Dial Telephones

from the a-series-of-tubes dept

With a group of Senators now looking to block various websites the Justice Department deems as "pirate," websites, it's worth taking a look back at how Senators can be rather silly in their rush to ban certain technologies, highlighting why it's generally not a good idea when politicians get involved in technology. The Nieman Journalism Lab points us to the news that, back in 1930, the Senate came close to banning dial telephones (where you dialed them yourself), preferring to have an operator do the connection instead. To the anti-dial Senators, it was seen as inappropriate to do the work of operators themselves. The resolution, which passed, read:

Whereas dial telephones are more difficult to operate than are manual telephones; and Whereas Senators are required, since the installation of dial phones in the Capitol, to perform the duties of telephone operators in order to enjoy the benefits of telephone service; and Whereas dial telephones have failed to expedite telephone service; Therefore be it resolved that the Sergeant at Arms of the Senate is authorized and directed to order the Chesapeake and Potomac Telephone Co. to replace with manual phones within 30 days after the adoption of this resolution, all dial telephones in the Senate wing of the United States Capitol and in the Senate office building.

Now, it's true that the resolution only impacted the Senate -- but when another Senator asked why they didn't ban dial phones from all of Washington DC, Senator Carter Glass from Virginia who sponsored the resolution apparently said that "he hoped the phone company would take the hint," and would remove all dial phones.

While the resolution did pass, some younger Senators were apparently upset about it -- as they actually preferred to dial their own numbers, and put forth a resolution to let Senators choose which they wanted -- leading to a "compromise" where those who wanted dial phones could keep them, but those who wanted to have the operator handle the difficulty for them, could do so. As one Senator, Clarence Dill, noted in support of the ban:

In his experience, the dial phone "could not be more awkward than it is. One has to use both hands to dial; he must be in a position where there is good light, day or night, in order to see the number; and if he happens to turn the dial not quite far enough, then he gets a wrong connection."

Is it any wonder that some of us think that it's not a good idea for elected officials to determine the relative merits of technology?

Filed Under: censorship, history, senators, technology

The Cycle Of Copyright: Originally A Tool For Censorship, Attempted As A Tool For Incentives... Back To A Tool For Censorship

from the the-inevitable-return dept

If you want to understand copyright law, its history, and how it's been abused, you really ought to read this excellent overview by law professor and practicing intellectual property attorney, Lydia Pallas Loren, called The Purpose of Copyright (found via Teleread). The article kicks off with a point that we've made over and over again here, that many people incorrectly believe the purpose of copyright law is to protect creators. Unfortunately, this false belief permeates many in society -- including copyright lawyers:

Copyright permeates our lives and yet, despite its impact on our lives, relatively few people, including lawyers, have sufficient knowledge or understanding of what copyright is. And far too many people, including lawyers, have major misconceptions concerning copyright. These misconceptions are causing a dangerous shift in copyright protection, a shift that threatens the advancement of knowledge and learning in this country. This shift that we are experiencing in copyright law reflects a move away from viewing copyright as a monopoly that the public is willing to tolerate in order to encourage innovation and creation of new works to viewing copyright as a significant asset to this country's economy. The most recent example of this shift is the new Digital Millennium Copyright Act, sign by the President on October 28, 1998.

Understanding the root cause and the dangers of this shift requires exposing the most fundamental and most common misconception concerning the underlying purpose of the monopoly granted by our copyright law. The primary purpose of copyright is not, as many people believe, to protect authors against those who would steal the fruits of their labor. However, this misconception, repeated so often that it has become accepted among the public as true, poses serious dangers to the core purpose that copyright law is designed to serve.

From there, the article digs deep into the history of copyright, from well before The Statute of Anne, back to a time when copyright was a private agreement among publishers, designed to retain monopolies, act as censors and generally control the publishing market. It certainly wasn't about protecting creators, who had nothing to do with it. From the beginning it was about middlemen and monopolies. What's unfortunate is that our founding fathers, who were so well versed in the problems of monopolies and the harm they cause, still seemed to believe that a limited version of such monopolies might encourage greater learning and education in the field of science. In fact, they specifically added the clause "to promote the progress," to make it clear to Congress that these monopolies were only to be used if they met that goal:

The framers of the United States Constitution, suspicious of all monopolies to begin with, knew the history of the copyright as a tool of censorship and press control. They wanted to assure that copyright was not used as a means of oppression and censorship in the United States. They therefore expressly provided for the purpose of copyright: to promote the progress of knowledge and learning.

While the courts and Congress initially took safeguarding that point of copyright law seriously, it eventually changed. Early on, however, Congress and the courts actually did focus on whether or not the overall public benefited or was harmed by aspects of copyright law. However, before too long, the whole concept of copyright law was bastardized into having nothing to do with the public benefiting, and only being about copyright holders (once again, often the middlemen) benefiting at the expense of the greater public. In other words, it's come full circle back to what it once was: a tool for middlemen to limit and censor expression.

Modern-day copyright harbors a dark side. The misunderstanding held by many who believe that the primary purpose of copyright law is to protect authors against those who would pilfer the author's work threatens to upset the delicate equilibrium in copyright law. This misunderstanding obviously works to the benefit of the content owning industries, such as the publishing industry, the music and motion picture industries, and the computer software industry. This fundamental misunderstanding is perpetuated by the stern FBI warnings at the beginning of video tapes, by overly broad assertions of the rights in the copyright notices, and by the general lack of public discourse about the balance required in copyright law if copyright is to fulfill its constitutionally mandated goal of promoting knowledge and learning.

This dark side, this pervasive misconception, is turning copyright into what our founding fathers tried to guard against - a tool for censorship and monopolistic oppression. This may sound extreme to some, but consider the beginnings of copyright in this country. The first Copyright Act in the United States granted only the exclusive right only to print, publish, and vend a copyrighted work, and it lasted for only fourteen years, with the possibility of a second fourteen-year term. No exclusive rights to perform the work or to create an adaptation of the work were granted, only the right to print, publish, and vend for, at most, twenty-eight years.

Under current copyright law, not only do copyright owners have the right to publish and distribute the work, but copyright owners also have the right to control the public performance of a work, to control the making of adaptations of the work, and to control the reproduction of the work independent of what is done with that new copy. And, as a result of the Copyright Term Extension Act passed in October, 1998, now the basic term of copyright lasts for the life of the author plus seventy years. This new term is a far cry from the original maximum term of twenty-eight years, and results in a much larger monopoly and a much longer time that the public must wait for any given work to enter the public domain.

These are only a few small snippets, but it's an excellent read. Many of you may already be up on these points, but whether you've read similar things before or not, I highly recommend this article.

Filed Under: copyright, history

Yet Another Study Shows How Copyright Can Hinder The Spread Of Knowledge

from the but-of-course dept

A bunch of you have sent over the article from Spiegel about new research (the latest in a very long line) again pointing out that copyright gets in the way of a thriving writing industry (that's the Google translate version of the original German report). The research compared the book markets in the UK (with a strong copyright law) and Germany (with either weak or non-existent copyright), and found much more writing going on in Germany and (more importantly) much more innovation in the bookselling market. In the UK, where copyright limited printings, books were expensive and only owned by the wealthy and elite. In Germany, where copyright was weak or didn't exist, certainly there was a fair amount of copying of other books, but it resulted in widespread innovation in the book market, including segmenting the market into hardcovers (for the wealthy and the elite) and cheaper paperbacks for those less well off.

Not only that, but the sorts of works created again favor the lack of copyright. While writing in the UK tended to focus on what the wealthy and the elite wanted to ponder (literature, philosophy, language and history), written works in Germany focused on the practical and useful (chemistry, mechanics, mechanical engineering, optics and steel production).

And, despite what copyright defenders will tell you, this system appears to have worked out much better for the authors as well. That's because the rampant competition from other printers meant that printers were in dire need of new and unique material. That meant that the actual writers had the upper hand in negotiations with printers, who always wanted to "break" new publications and get them out to innovate and be ahead of what other printers were doing. The article notes that authors were able to earn quite a lot of money by working with various printers without copyright. As copyright law changed in Germany, and became more widely adhered to, many authors were actually upset as the prices of books rose, and their market and earnings diminished.

Filed Under: copyright, germany, history, uk

Copyright Getting In The Way Of Historical Realism On Mad Men [Updated]

from the and-this-helps-who-now? dept

A reader going by the name Known Coward points us to a short NY Post piece on how NB news anchor has joined the crowd of folks who watch the show Mad Men, but get upset about historical inaccuracies in the show, which is supposed to take place in 1964. I'm not quite sure how interesting a story that really is, but there was one part of it that might be interesting to folks around here. One of the inaccuracies that upset Williams was the fact that the character of Don Draper was seen watching an NFL football game on a Saturday night. Indeed, the NY Post notes that prime-time NFL football didn't begin until 1970. Where it gets interesting is the reason given by the producers of the show:

Turns out the producers originally wanted to show Don viewing a hockey game between the New York Rangers and the Toronto Maple Leafs, but couldn't get rights, according to a report yesterday in the Los Angeles Times.

Instead, producers substituted audio of a football game, thinking it would blend into the background.

And, of course, this raises the question of what harm is done to the NHL if the show had actually used the more accurate hockey footage, rather than the football broadcast? How does this, in any way, fit into the realm of "promoting the progress"?

Update: In response to this article, the NHL is calling an offside penalty, saying that it received no such request to use the footage of the Rangers/Leafs game. So... perhaps this isn't a copyright issue at all, but Mad Men producers trying to hide a mistake in historical reality?

Filed Under: brian williams, copyright, historical accuracy, history, mad men

How Copyright Is Denying Us Our Own History

from the what-a-tragedy dept

The Guardian has a fantastic article on a topic we've mentioned before, but haven't discussed in a while. It's about how copyright is getting in the way of us preserving our history. Archivists around the world are facing a massive problem: what should be easier due to new technologies has become an incredible legal nightmare. Digital content degrades quickly, and formats change all the time. Locking up that content, and using things like DRM (where it's illegal to even try to circumvent it) is making it impossible to do important archival activities. This is a huge problem that's only been getting worse -- so it's great to see a mainstream publication like The Guardian addressing it.

Filed Under: archiving, copyright, history

An Amusing Historical Look At Moral Panics And The Content Industry

from the it's-happening-again-and-again-and-again dept

PopeHilarius was the first of a few of you to send over the amusing Cracked story on "5 Insane File Sharing Panics from Before the Internet." If you're a regular reader of this site, none of these will be all that surprising to you. But, it does show that time and time again, the content industry, throughout history, has always claimed that new technologies will kill them off. And every time they've been totally and completely wrong. In fact, pretty much every time the opposite happened, and the new technology created massive new opportunities for growth. This particular list (and it's easy to add more to it) includes:

1. VCR's Will Kill Television!
2. Phonographs and Player Pianos Will Kill Music!
3. Pirated BASIC Will Kill Software Development!
4. The Cassette Will Kill Music! Again!
5. The Printing Press Will Kill Literature!

What's amazing isn't just that the industry seems to freak out in this same way every single time, but that politicians still fall for it.

Filed Under: content, copyright, history, moral panic

Lessons From The US's First Broadband Plan... In 1808

from the public-private-partnerships dept

Larry Downes has written up a long, but quite interesting, look at the FCC's proposed broadband plan by putting it into context when compared to previous major US infrastructure projects, starting with what he refers to as the US's "first broadband plan," put together in 1808 by then Treasury Secretary Albert Gallatin:

Two hundred years ago, Gallatin's proposal was audacious. The young Republic, in danger of coming apart at the seams of its already-diverse geography, should commit to building a series of road and canals to knit the continent together from the Atlantic to the Mississippi. The Gallatin Plan called for canals that would connect the inland waterways of the U.S. from Massachusetts to North Carolina, a "great turnpike road from Maine to Georgia," and improvements, including what would one day become the Erie Canal, to connect the waterways of the Atlantic with the Great Lakes.

The value of roads and canals in improving the communications, safety, and commerce of the young republic were too obvious to enumerate. Indeed, Gallatin wrote, "No other single operation, within the power of the government, can more effectually tend to strengthen and perpetuate that union, which secures external independence, domestic peace, and internal liberty."

Gallatin estimated his proposed new infrastructure would cost the federal government $20 million. In countries with a "compact population," he noted, such expenditures might be expected to come from “individual exertion, without any direct aid from the government.” But the vast geography of the United States, its sparse population, and the general poverty of many of its citizens, justified public investment. As the federal government was already in debt, Gallatin advised Congress to borrow the money from future budget surpluses in $2 million increments over a ten-year period. (The surpluses were expected to come from the sale of western lands.)

If you compare that to some of the debates over broadband policy today, you'll note some similarities. Gallatin's plan never went through directly -- instead a semi-public-private partnership was worked out instead. Downes notes how common this is when it comes to US infrastructure projects throughout history, with the interstate highway system perhaps being the one exception.

So what does all that mean? Well, the answer is tricky. Because you need some aspect of a public-private partnership to do these sorts of big infrastructure projects, but at the same time, the role of both parties becomes finely balanced. Everyone knows the larger parts: private companies provide much of the investment and the technology/manpower. The government provides the rights of way/land and potentially additional subsidies to encourage the investment. But then what? Left with too little oversight, the companies controlling the infrastructure can (and do) take advantage of their position, knowing that there's effectively limited competition to keep them in line. But, with too much oversight, things get ridiculous -- and often that oversight becomes subject to regulatory capture, where those same incumbents use the regulatory power to prop themselves up in the face of nascent competition. This was the issue with the railroads and the Interstate Commerce Commission (ICC) -- a topic that was covered in great detail in comparison with today's broadband discussions in Tim Lee's paper on net neutrality, and discussed again by Downes.

There isn't an easy answer to all of this, but what is clear is that there are important issues to be discussed. And the problem is that in the US we're not really discussing the right issues at all. Much of the focus is unfortunately on net neutrality instead of competition, and the broadband plan is more focused on adoption rates rather than actual broadband. This is a key point that gets a bit buried in Downes' piece. He talks about how the focus of the broadband plan is to increase broadband adoption in the US, but that broadband is already widely available in the US. It's just that there are lots of people who don't want it yet.

But both Downes and the FCC seem to skip over the larger issue of speed. The real problem in the US is not that we're so far behind on adoption rates -- but in what kind of broadband most people can use today. With some exceptions, it's slow. Especially compared to some other countries. And, yes, there are some issues involving population density and the ability to build out a faster network, but if the government is going to get involved, why not focus on the metric that matters: which would be the bandwidth of the network, rather than making sure that the guy living at the end of a dirt road in the middle of nowhere can get his broadband access.

Filed Under: broadband, history, regulations

Back When Broadcast TV Tried To Convince The World That Cable Was A Monster

from the ah,-history dept

It's the same old story we've seen over and over again: a new technology comes along and the industry it disrupts tries to demonize that technology as an evil that must be stopped. And yet, the "evil" never really turns out to be that bad, but it's sometimes amusing to go back and see what was said at the time. Karl Bode points us to this fun little commercial that network TV stations apparently put out in the early days of cable TV, warning how "pay TV is the monster in your living room." And, it urges viewers to "let your lawmakers know" in order to "save free television": Of course, these days, we keep hearing about how the networks want more and more and more cash from the cable/satellite providers just to keep that "free TV" available. Funny how things work out...

Filed Under: cable, history, television

The Telegraph And Natural Monopolies In Communications

from the how-do-you-deal-with-them? dept

A bunch of folks have sent in Matthew Lasar's excellent look back at some of the early days of the telegraph system and how it parallels some questions that we face today over things like net neutrality. The basic story is that Western Union worked out a way to gain a monopoly on the telegraph, and then worked out a deal with the Associated Press, whereby all AP papers would use Western Union, and none would support the creation of a competing telegraph company. From all of this, there is even the suggestion that a presidential election was stolen. It's a worthwhile read.

Of course, the parallels are not perfect, and there are lots of other questions to be raised, but there are some good points to think about, when you're dealing with a communications system that is, effectively, a natural monopoly. As the FCC suddenly seems open to the concept of line sharing again, after being down on it for so many years, it's at least worth looking at the history on things like the telegraph, to understand why competition really is a good thing, especially when it comes to the major means of communication.

Filed Under: history, natural monopolies, telegraph
Companies: western union