Canada's New Copyright Bill: The Good, The Bad and The Undecided

from the now-is-the-time-to-speak-up dept

After three failed attempts over the past seven years, copyright changes are coming to Canada. Bill C-11 enters the final stage of committee review next week, and after that it's all-but-guaranteed to pass into law. As Michael Geist puts it, "while there will still be some additional opportunities for debate—third reading in the House of Commons, Senate review—the reality is that next week's discussion will largely determine the future of Canadian copyright law."

The bill as written is nowhere near as damaging as SOPA/PIPA or even the DMCA, and it has significant bright spots, such as extending Fair Dealing (our comparatively toothless version of Fair Use) to include parody, satire, education and non-commercial remixes and mash-ups. But it does include one big problem: an anti-circumvention clause that, like the DMCA in America, will make it illegal to break copy protection even for the purposes of legal copying. This makes no more sense under Canadian copyright law than it does anywhere else: if the act of copying is legal, why should the means to do so be illegal? The Canadian Library Association has proposed a common-sense amendment to the so-called "digital locks" provision, clarifying that circumvention is only infringing if it is "for the purpose of an act that is an infringement of the copyright". It makes no sense to exclude such a requirement.

The other major concern is the amendments requested by content industry representatives, which if accepted would turn C-11 from a relatively tame bill into a monstrous cousin of SOPA/PIPA. Proposals include notice-and-takedown systems, graduated response from ISPs, website blocking provisions, warrantless access to subscriber information, and many of the other worst parts of SOPA/PIPA and the DMCA. Additionally, the licensing agency Access Copyright is opposing the bill's expansion of Fair Dealing, and even trying to go in the opposite direction and scale it back.

All these proposals will be reviewed by the committee in a "clause-by-clause" review of the bill. For Canadians who value progressive copyright and a free and open internet, the good news is that most of the bad amendments will likely be rejected, both because the committee members are well aware of the massive public backlash against SOPA/PIPA, and because many of the proposals are not the mere "technical amendments" that are permitted at this stage. But there are no guarantees, and that means that now is an essential time to make your voice heard, and ensure that the right decisions are made about the future of Copyright in Canada. We must let our representatives know that we support common-sense changes to the digital locks provision, and oppose the SOPA-fication of the bill by industry groups, as well as the attack on Fair Dealing by Access Copyright.

Geist has provided a convenient list of e-mail addresses for all the committee members, and Open Media's Say No tool allows you to contact your Member of Parliament—though it does not allow you to enter a custom message, so I recommend finding and contacting your MP directly. I also hope that American and international readers will not see this as a purely Canadian issue: it is, in fact, a part of ongoing American efforts to introduce stronger copyright wherever possible. Canadian copyright legislation has been largely driven by U.S. interests and pressure tactics like the USTR's Special 301 report. You can be confident that if the American government gets its wish and Canada enacts harsher copyright laws, they will soon be pushing to "harmonize" the law and bring the same restrictions back to the U.S.

In many ways, Canada is benefitting from the fallout of the SOPA/PIPA protests, which is helping to shield us from the worst of the proposed changes—but that cannot be an excuse for complacency. If we make the effort to fix the problems with C-11, and push back against industry proposals that aim to inject it with new, bigger problems, we can emerge from this process as an example of the right way to approach evolving copyright law.

Filed Under: c-11, canada, copyright, dmca, fair dealing, fair use, pipa, restrictions, sopa

Supreme Court Won't Hear Perfect 10's Silly Lawsuit Against Google; Good Ruling Stands

from the phew dept

Perfect 10 has basically made a business out of suing companies claiming copyright abuse. The former publisher of "adult" magazines has gone on a rampage suing tons of companies -- including all the major search engines -- claiming that pointing people to infringing results and showing thumbnails of copyrighted images is infringement itself. For an eye-opening look at Perfect 10, the best read is probably Rapidshare's countersuit from a few years ago, that goes into detail on how the company operates. So far, Perfect 10 has lost almost all of its big cases -- including those against both payment processors and search engines. To be honest, in the long run, Perfect 10 may have done a lot of good in presenting cases that highlight the clear insanity of certain interpretations of copyright law, providing strong and clear precedents from court rulings that have been tremendously useful in other cases.

The lawsuit against Google for showing thumbnails has bounced around for years, with the appeals court saying that showing those thumbnails is fair use -- something those freaking out about Pinterest might want to keep in mind. As it's done before, the Supreme Court has (once again) rejected one of Perfect 10's appeals, meaning that the (strong) lower court ruling stands. Yes, technically, it only applies in the 9th Circuit, but this ruling seems to be one that other courts are willing to cite and use, so hopefully the precedent is considered more widespread. While it would have been nice to have a Supreme Court ruling smacking down Perfect 10 and making such a clear fair use ruling apply across the board, for now we'll be happy with just keeping the good 9th Circuit ruling in place.

Filed Under: copyright, fair use, supreme court, thumbnails
Companies: google, perfect 10

IP Throwdown: Patent Lawyers Sued For... Copyright Infringement

from the fight-fight-fight dept

Last month, we wrote about how the USPTO had stepped in to a brewing fight between copyright lawyers and patent lawyers, saying that it believed that submitting journal articles as part of the patenting process was fair use. Apparently, the copyright lawyers working for the scientific journals disagreed... and the fight is on: the journals have sued a bunch of patent lawyers for making use of articles from the journals in preparing their patent applications. The journals, in their desperate desire to squeeze more cash out of everything, were demanding that patent lawyers get an additional license if they wanted to submit copies of journal articles along with patent applications.

While it's rare that you'll find me agreeing with the patent bar on very much, on this one, I'm on their side. The lawsuit, lead by publisher John Wiley, is kind of crazy. We're not talking about people who are getting copies of the journal for free. These are generally people who have a legitimate subscription to the journals, and are submitting copies of the information as part of the patent process -- as they're required to do by law. This is just yet another attempt by the publishers to get paid for every single possible use, even for those who already have legitimate access. And, of course, these journals don't have the best reputation these days, with their attempts to block open access requirements. While there may be some appeal in making it more difficult to get a patent (something where I believe the bar needs to be much, much, much higher), I don't think this is as reasonable way to do so.

In nearly every way, it seems like submitting such a journal article as part of a patent application process should be seen as fair use. It really does fit the kind of key "spirit" of the fair use rule.

Filed Under: copyright, fair use, lawsuit, patent applications, patents
Companies: john wiley

Dutch Research Reveals Wide Scope For Copyright Flexibilities In EU Laws

from the didn't-know-you-could-do-that dept

A couple of weeks ago, Techdirt wrote about a surprising initiative by the Netherlands to introduce new flexibilities into its copyright law. Given that leadership from the Dutch government, it's probably no surprise that a few days later, the Dutch Parliament also showed itself in the political vanguard by voting not to ratify ACTA for the time being.

The full text of the Dutch minister's speech is now available, and it's well worth reading for its clear analysis of the problem facing European copyright, and its suggested solution:

The big question, however, is whether copyright law currently provides enough opportunities to allow an effective response to these technological changes and other developments in the future. In my view, this is particularly relevant in the case of the closed list of exceptions to copyright in the European Information Society Directive. These exceptions are designed to allow new products and services to be developed through creative or transformative use of copyrighted work. They also allow copyright to be restricted in the case of work used for educational purposes, in academic research or in news reporting, as well as work used for libraries and archives.

As the minister mentioned in his talk, those exceptions are explored in some depth in a report by Professors Hugenholtz and Senftleben, entitled 'Fair Use in Europe. In Search of Flexibilities.' The conclusion gives an idea of just how much scope there is within existing European law to introduce a wide range of copyright exceptions:

As our analysis has demonstrated, the EU copyright acquis [body of law] leaves considerably more room for flexibilities than its closed list of permitted limitations and exceptions prima facie suggests. In the first place, the enumerated provisions are in many cases categorically worded prototypes rather than precisely circumscribed exceptions, thus leaving the Member States broad margins of implementation, as is confirmed by actual legislative practice in various Member States. In the second place, the EU acquis leaves ample unregulated space with regard to the right of adaptation that has so far remained largely unharmonized.

A Member State desiring to take full advantage of all policy space available under the Information Society Directive, and thus maximize flexibilities available at the EU level, might achieve this by literal transposition of the Directive’s entire catalogue of exception prototypes into national law. In combination with the [Information Society Directive's] three-step test, this would effectively lead to a semi-open norm almost as flexible as the fair use rule of the United States. For less ambitious Member States seeking to enhance flexibility while keeping its existing structure of limitations and exceptions largely intact, we recommend exploring the policy space left by distinct exception prototypes.

The ability to add all kinds of flexibilities to copyright law without breaching the Information Society Directive is clearly a real boon for EU governments who want to update their legislation for the digital age. But there is another notable advantage to taking this approach, as the authors note:

Member States aspiring to introduce flexible copyright norms are advised to take advantage of the policy space that presently exists in EU law, and not wait until initiatives to introduce flexibilities at the EU level materialize -- a process that could easily take ten years. In this way, national models can be developed and tested in practice that may serve as a basis for more flexible future law making at EU level.

The hope there seems to be that forward-thinking countries like the Netherlands might be able to set an example for Europe's future copyright legislation, and move it towards greater flexibility. A good place to start in that respect would be for the European Parliament to emulate the Dutch politicians and to ditch ACTA, one of whose pernicious effects is to limit the freedom of signatories to modify their own national copyright laws.

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

Filed Under: copyright, copyright exceptions, eu, fair use, flexibilities, netherlands, research

Westlaw And Lexis-Nexis Sued AGAIN Over Claims That They're Infringing On Copyrights Of Legal Filings Themselves

from the fair-use-in-legal-filings dept

In 2009, we wrote about a case involving a lawyer named Ed Connor filing a class action lawsuit against the two giant legal aggregators, Westlaw and Lexis-Nexis. His argument was that legal filings, which those two services aggregated into large databases and then sold access to, were covered by copyright, and these two giants were clearly infringing on those copyrights. In 2010, we wrote about a similar case filed against Thomson Reuters. I can't find any info on what happened to either case.

However... it appears that some more lawyers are trying the same thing. A bunch of folks have sent over the various reports of how two lawyers are suing Westlaw and Lexis-Nexis again (though most of the reports seem to ignore the earlier lawsuits). We're posting this lawsuit below (and, um, given the nature of the lawsuit, we're stating clearly our belief that this is fair use!).

While it is true that it is reasonable to see the legal briefs as being covered by copyright, that doesn't necessarily mean the collections are infringing. Westlaw and Lexis-Nexis have a slightly weaker fair use claim, in part because they're selling access to the database (whereas someone like me is not). They're also not providing any direct commentary (again, unlike this post). That said, I'm still not sure that they're really on the wrong side of fair use. While I'm sure part of the argument is that the amounts that Westlaw and Lexis-Nexis charge are evidence of commercial value of these documents, that's kind of silly. The value is in the aggregation of all the documents, not in the individual documents themselves -- which are more or less worthless in a commercial sense.

It would be nice if the law were clearer that this kind of thing definitely was fair use -- and hopefully that's how the courts will rule. But if not, Congress should make it clear. The purpose of copyright law is to encourage the sharing of this kind of information and no legal brief is created because of the copyright on it. It's simply silly to think that a legal brief should be dealing with copyright because the purpose of copyright is to incentivize the creation of the work -- and there's clearly no need for copyright in this instance. Yet another example of the travesties that happen when you automatically put copyright on every work upon fixation. It makes no sense at all when it involves works that are created for reasons that have nothing to do with copyright and would continue to be created in the total absence of copyright.

Filed Under: copyright, fair use, legal briefs
Companies: lexis nexus, westlaw

MPAA: Ripping DVDs Shouldn't Be Allowed Because It Takes Away Our Ability To Charge You Multiple Times For The Same Content

from the um,-wow dept

It's that time again when the Librarian of Congress is considering special exemptions to the DMCA's anti-cicrumvention provisions. One of the key proposals, which we discussed earlier, was Public Knowledge's request to allow people to rip DVDs for personal use -- just as we are all currently able to rip CDs for personal use (such as for moving music to a portable device). The MPAA (along with the RIAA and others) have responded to the exemption requests (pdf) with all sorts of crazy claims, but let's focus in on the DVD ripping question, because it's there that the insanity of Hollywood logic becomes clear.

Effectively, the MPAA is arguing that there is no evidence that ripping a DVD itself is legal, and since anti-circumvention exemptions are only supposed to be for legal purposes, this exemption should not apply. Leaving aside the sheer ridiculousness of the fact that we need to apply for exemptions to make legal acts legal (I know, I know...), this is quite a statement by the MPAA. While it's true that there hasn't been an official ruling on the legality of ripping a DVD, the fact that CD ripping is considered legal seems to suggest that movie ripping is comparable.

But the bigger point is that the MPAA is arguing that because they offer limited, expensive and annoying ways for you to watch movies elsewhere, you shouldn't have the right to place shift on your own:

Copyright owners include with many DVD and Blu- Ray disc purchases digital copies of motion pictures that may be reproduced to mobile devices and computers pursuant to licenses. Blu-Ray disc purchasers can also take advantage of "Managed Copy" services that are scheduled to launch in the U.S. later this year. Movie distributors and technology companies are also making available services such as UltraViolet, which enables consumers to access motion pictures on a variety of devices through streaming and downloading. Many movies and television shows are also available online through services such as Comcast Xfinity, Hulu and Netflix, or websites operated by broadcasters or cable channels, which consumers can enjoy from any U.S. location with internet access. With all of these marketplace solutions to the alleged problem PK points to, it is unlikely that the presence of CSS on DVDs is going to have a substantial adverse impact on the ability of consumers to space shift in the coming three years.

Notice that almost all of these "market solutions" mean you have to pay multiple times for the same content -- and they ignore the fact that these offerings are all very limited and may not have the content on the DVDs people have. Public Knowledge has a quick summary of how these "solutions" are not solutions at all:

The MPAA had two specific suggestions. First, consumers could re-purchase access to a subscription service such as Netflix of Hulu. They did not dwell on the fact that 1) this would require you to pay again to access a movie you already own; 2) these services require a high speed internet connection in order to work; 3) There is a reasonable chance that the movie you own is not available on any of those services at any given time; and 4) MPAA member studios regularly pull videos that were once available on those services off of those same services.

The MPAA’s second suggestion was even less helpful. In their comments, they pointed to Warner Brothers’ DVD2Blu program. This program allows people to use their existing DVDs as a coupon towards the purchase of a handful of Warner Blu-Ray disks. They did not dwell on the fact that 1) this program is limited to Warner Brothers films; 2) the program is limited to 25 exchanges per household; 3) while some Blu-Ray disks include digital copies that can be moved to other devices, it is unclear how many of the disks in the DVD2Blu program include that option; 4) only 100 movies are included in the entire program; and 5) each exchange costs at least $4.95 plus shipping (which, for the record, is about as much as it would cost to buy the digital file from Amazon.).

When you think about it, this is really quite crazy. They're saying because they offer you an option to pay for a way too expensive, very limited option that might not really exist, you shouldn't have the right to rip your DVDs. This would be like the recording industry claiming you can no longer rip CDs because they offer a limited locked down selection of music in an online store. People would revolt at such a claim, and they should find the MPAA's ridiculous claims here equally as revolting.

If the MPAA stopped there, it would be crazy enough... but no, in the mind of Hollywood, they have to take it even further. They claim that because the ability to rip your DVD might take away their ability to keep charging you for the same content over and over again, that it goes against the purpose of copyright law. Seriously. They're actually claiming that their ridiculous "windows" are "new business models" that copyright law is designed to encourage:

In fact, granting PK’s proposed exemption would be directly counter to the purpose of this rulemaking. It would undermine emerging business models that increase access to creative works in precisely the manner Congress intended the DMCA to promote.

But that's pure bullcrap. The business models in question do not "increase access." They increase the ways in which you can pay. If they want to increase access, they would let you rip your damn movie.

It is clear that access controls have increased consumers’ options with respect to motion pictures in digital formats. The Register should not interfere with that progress. Instead, she should endorse it.

Up is down, black is white, day is night. Controls have increased consumer options? No freaking way. Controls have limited options... but have allowed the MPAA studios to set up tollbooths and charge people multiple times for content they legally had purchased the rights to.

Filed Under: circumvention, css, dmca, dvds, exemptions, fair use, ripping
Companies: mpaa

USPTO Says Copies Of Academic Articles Submitted As Prior Art Are Covered By Fair Use

from the wanna-fight? dept

With all the heat that publishers are starting to feel from the academic community, you might have thought that they'd avoid upsetting anyone else. But it seems that some publishers have decided to go after lawyers who make patent applications that include copies of academic articles as prior art. As the PatentlyO blog explains:

A number of scientific journals have begun to threaten law firms and their clients for submitting copies of journal articles to the USPTO. The typical cease & desist letter that I've seen says something like the following:

"We've been trolling through USPTO records and found that you submitted a copy of one of our articles articles to the USPTO and we suspect that you maintained other copies in your files and distributed additional copies within your organization. These actions constitute copyright infringement and are not fair use. We will sue you unless you come into compliance with our CCC licensing scheme."

In a way, that's strange: you would think that academic publishers would want to encourage this kind of use, since it establishes their titles as a kind of "gold standard" for prior art. Obviously the prospect of making some easy money proved irresistible.

Surprisingly, perhaps, the USPTO has waded in to this squabble and offered its opinion in a statement (pdf):

Patent applicants or their attorneys sometimes make copies of copyrighted NPL [non-patent literature] and submit those copies to the USPTO, pursuant to the USPTO's disclosure requirements. The USPTO considers this copying to be protected by the doctrine of fair use.

In the rest of its eight-page document, the USPTO goes on to explain the legal reasoning that led it to come to that conclusion.

It's rather remarkable to see the main US body responsible for promoting one kind of intellectual monopoly -- patents -- asserting that another -- copyright -- doesn't apply. And it will be interesting to see whether publishers want to raise the stakes by taking on the USPTO as well as lawyers, inventors and angry academics.

However, since the USPTO says that it takes "no position on whether additional copies of NPL made during the course of patent prosecution (e.g. for the client, for other attorneys, for the inventors, or for the law firm's future reference) qualify as fair use", publishers would probably do better to concentrate on pursuing licensing fees for that instead.

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

Filed Under: copyright, fair use, journals, patents, uspto

When Judges Are Determining Whether Or Not Art Should Exist... We Have A Problem

from the judges-as-art-critics dept

We've written about the somewhat horrifying ruling in the Richard Prince appropriation art case before. If you haven't been following the details, Prince is an appropriation artist, who takes works he finds elsewhere, and modifies and transforms them into different pieces of artwork. The law around this kind of artwork is tragically murky -- with some cases ruling that appropriation art is fair use, and some ruling otherwise. The Prince case got extra attention for a few reasons. One is that Prince is considered one of the biggest name artists around, and his works can sell for millions of dollars. The second is that this case also implicated the gallery that showed Prince's work, raising some serious questions about secondary liability for galleries, and whether or not galleries themselves must become copyright experts. Finally, the ruling suggested that Prince's artwork -- valued at a few million dollars -- might need to be destroyed..

This is the truly horrifying part. Whether or not you appreciate the work, clearly some people do like it. Personally, it's not my taste, but I'll be damned if my own personal taste (or any other third party's personal taste) should ever be the determining factor in whether or not any particular piece of art should exist.

And, yet, that's what we have here. While the case is on appeal, the NY Times recently ran a pretty good overview of the case, and highlighted why the art world is paying so much attention to it. Especially for a younger generation, building new works of art on works that came before seems totally natural. It's a good thing:

“For the generation that I spend my days with, there’s not even any ideological baggage that comes along with appropriation anymore,” said Stephen Frailey, an artist whose work has used appropriation and who runs the undergraduate photography program at the School of Visual Arts in Manhattan. “They feel that once an image goes into a shared digital space, it’s just there for them to change, to elaborate on, to add to, to improve, to do whatever they want with it. They don’t see this as a subversive act. They see the Internet as a collaborative community and everything on it as raw material.”

At the same time the tools for mining and remolding those mountains of raw material are proliferating. In November a developer and a designer introduced an iPad art app called Mixel, aimed at amateurs but certain to end up in artists’ studios. It allows users to grab images from the Web or elsewhere, collage them almost effortlessly and then pass them around, social media style, for appreciation or re-mixing.

One of its creators, Khoi Vinh, a former design director of NYTimes.com, has been surprisingly frank when asked about the tsunami of copyright problems such an idea stirs up. “This is really a case of, you have to do it, try it and ask for forgiveness later,” he said to an interviewer. “Otherwise it would never get out there.”

What you begin to realize is that, like the wider copyright battle, to some extent this is a "generational" thing. And I don't mean that totally as an "age" thing. There are plenty of "older" people who understand these issues (or who create works via appropriation), just as there are some younger copyright maximalists. But, in general, this does seem like a generational thing, where you have generations of people who simply find the process of building on the works of art completely natural, and those who don't.

But the part that really troubles me about these discussions is a rather simple point about fair use: if the new work does not, in any way, harm the original work, it's seems positively insane to me to think that it shouldn't be seen as fair use. This point is made by Prince's lawyers:

Joshua Schiller, Mr. Prince’s appeals lawyer from the firm Boies, Schiller & Flexner, said the boundary is whether a new work of art results from the borrowing. And he argued that it was clear that Mr. Prince had made parts of Mr. Cariou’s pictures into distinctive Richard Prince works, not just copy them to pass them off as his own and deprive Mr. Cariou of his livelihood. Whether the work was successful and whether Mr. Prince’s intentions were interesting or even explainable can be left to debate. But the primary intention was to create a work of art, Mr. Schiller said, and that is the kind of creativity the law seeks to encourage.

“This is not piracy,” he said. “These are not handbags.”

I'm still waiting for someone (anyone!) to give me a compelling explanation for why it's a problem in any way, shape or form, if the new work does nothing to take away from the old work. In fact, in cases like this, it's easy to argue that the new work, since it came from a much more well known and successful artist, likely drew much more attention to the original work, thereby raising that artist's profile and stature.

Filed Under: appropriation art, art, copyright, culture, fair use, intent, patrick cariou, richard prince

NBC News Doesn't Understand Fair Use; Demands Mitt Romney Remove Ads That Use TV News Clips

from the oh-please dept

Here we go again. Four years ago, during the presidential campaign, we had CBS News threaten the McCain campaign for using some news footage clips in a campaign ad. And here we are, four years later, with NBC Universal demanding that the Romney campaign remove an ad it's using against Newt Gingrich, making use of old TV news footage. This strikes us as bizarre (and ridiculous) as it did four years ago. In many cases, these ads are likely to be considered fair use. But, secondly, is it really any harm to NBC News if Romney uses classic footage? I mean, the news reports are what NBC News had reported in the past. Essentially acting like it hadn't -- by trying to block the use of the footage -- just seems silly.

NBC, of course, wants to claim that this is about not having its newscasters be seen as "endorsing" a candidate. Again, however, that's ridiculous. No one is going to see these reports and think that the Tom Brokaw from the 90s was magically endorsing a candidate running for President today. I just can't see how or why NBC Universal would make this move. Not only does it make the company look petty, it also calls that much more attention to the ad that they thought they were going to kill.

Filed Under: copyright, fair use, mitt romney, newt gingrich
Companies: nbc universal

Jon Stewart Now Knows About SOPA/PIPA... And He's Not Impressed

from the hello-fair-use dept

Remember how, based on an audience question, Jon Stewart promised to study up on SOPA/PIPA for a future show. Looks like that happened. And, apparently, he did his homework before Wednesday, so he could actually use Wikipedia. In last night's show, Stewart used yesterday's blackouts and protests as a jumping off point to discuss the bill. There were two main points: (1) Congress is trying to pass laws about an internet they don't understand at all, and (2) fair use is incredibly important, and anything that potentially damages fair use is dangerous to culture. For the first point, he played some clips of Rep. Mel Watt proudly displaying his ignorance of technology -- and then points out that Watt is the ranking member on the IP sub-committee. He also mocks the calls during the markup from various Congressional Reps. to have a hearing with "the nerds" by reminding them that it's not "nerds" they're looking for... it's experts. Something in short supply in Congress. For the second point, he ably uses a ton of short clips, fair use style, to demonstrate how important fair use is to a show like his... while mocking Viacom and its own lawyers for trying to limit fair use. Good stuff all around. And yes, for those people who live in foreign countries that don't have a deal with Viacom, I apologize that you can't see the video below. It's just one more example of how Viacom encourages infringement by not giving people what they want.

Filed Under: blackouts, copyright, fair use, jon stewart, mel watt, pipa, protect ip, protests, sopa, the daily show
Companies: viacom