We See Your 'Copyright Contributes $1.5 Trillion' And Raise You 'Fair Use Contributes $2.2 Trillion'

from the pointless-numbers dept

The copyright industry lobbyists absolutely love to throw around the bogus and debunked stat that copyright contributes $1.52 trillion to the economy. That number is derived by taking any business that kinda sorta maybe touches copyright (including things like furniture and jewelry) and then assuming that all of the revenue they make is entirely due to copyright. Yes, that's ridiculous. But, if the copyright lobbyists are going to use such bogus methodology to push their agenda, it seems only fair for those on the other side to use the same methodology. Last week, we wrote about a biased editorial by two newspaper industry lawyers in the WSJ (who failed to note the conflicts of interest), claiming that Google violated copyright law, and attacked the concept of fair use.

In response, Ed Black, from the Computer & Communications Industry Association wrote a letter to the editor highlighting those lawyers factual mistakes as well as the importance of fair use throughout the industry (thanks to Yano for sending this in). Most of the (short) letter discusses all the wonderful things that fair use allows, and then has this wonderful line at the end:

Businesses dependent upon exceptions to copyright contribute $2.2 trillion to the U.S. economy. They are responsible for one in eight jobs, for a total payroll of $1.2 trillion in 2006. Fair use is serious business; it is the glue that holds the Internet and new technology together. It is worth protecting.

This is fantastic. Of course, the number is just as bogus as the $1.52 trillion used by copyright maximalists, but I think that if they're going to use their methodology to make such ridiculous claims, it's only fair to do the same for the contributions to the economy of exceptions to copyright, and as the CCIA clearly demonstrates, the businesses that rely on weaker copyright contribute significantly more to the economy than those that rely on copyright. Thus, by the copyright maximalists own logic (and numbers), shouldn't we be fighting to expand the exceptions to copyright law?

Filed Under: copyright, economy, fair use, stats

Poet's Son Says No One Can Quote Father Without Paying Up... Even Academic Dissertations...

from the uh,-that's-not-how-it-works,-son dept

crcb alerts us to the bizarre situation where the son (and heir to the copyrights) of poet Louis Zukofsky isn't just brandishing the copyrights against those trying to republish his works, but he seems to be demanding fees from anyone quoting his father or writing about him -- even academic dissertations. It doesn't appear as if Paul is doing this to protect a legacy or anything (if anything, it sounds like he's not a fan of his father), but he does want cold hard cash:

"I hardly give a damn what is said about my father (I am far more protective of my mother) as long as the name is spelled properly, and the fees are paid."

The full copyright notice is quite a doozy, where the son basically seems to think copyright law means he alone gets to determine what is acceptable and what is not -- and, for the most part, his view is that he doesn't want you ever quoting or discussing his father, but if you must, then he wants money. He also seems to think that fair use is as he defines it, rather than what the law actually says.

All Louis and Celia Zukofsky is still copyright, and will remain so for many many years. I own all of these copyrights, and they are my property, and I insist upon deriving income from that property. For those of you convinced that LZ would find my stance abhorrent, the truth is that he kept all copyrights (initially in his name) as he had the rather absurd idea that said copyrights would be sufficient to allow for the economic survival of my mother, and their son. My stance is congruent with that hope.

Despite what you may have been told, you may not use LZ's words as you see fit, as if you owned them, while you hide behind the rubric of "fair use". "Fair use" is a very-broadly defined doctrine, of which I take a very narrow interpretation, and I expect my views to be respected. We can therefore either more or less amicably work out the fees that I demand; you can remove all quotation; or we can turn the matter over to lawyers, this last solution being the worst of the three, but one which I will use if I need to enforce my rights.

Except that, no, fair use is somewhat broadly defined under the law, and just because Paul wants it narrowly defined, it does not follow that this is the case. As Paul's father, Louis Zukofsky once wrote: "The best way to find out about poetry is to read the poems." Apparently, Paul would like to make that a lot more difficult and a lot more expensive. And, yes, Paul, quoting that was fair use.

Filed Under: copyright, fair use, louis zukofsky, paul zukofsky, poetry

New Google Book Settlement Tries To Appease Worries

from the doesn't-really-change-much dept

Late (very late) Friday, Google and groups representing publishers and authors squeaked in just under the deadline and put forth a revised Book Scanning settlement agreement, designed to address at least some of the concerns and complaints raised by people over the last one. If you want a good breakdown over the changes, check out Danny Sullivan's analysis or James Grimmelmann's. Not surprisingly, the Open Book Alliance is not happy, but seeing as it's a bunch of Google competitors, they were never going to be happy in the first place (and you know that press release was probably 95% written before the actual new terms were released).

In my mind, the biggest news is the new restrictions on countries from which it will scan books. From now on, the book scanning project will only scan books that have registered copyrights in the US, UK, Australia or Canada. This was mainly to address ridiculous concerns by some in Europe that this project -- to help make all books more accessible -- was somehow a threat to European culture. I was in Europe on Friday (well, Saturday there) when the announcement was made, and it actually pissed off the folks I talked to about it -- who felt that their politicians were doing serious harm to European books by having them excluded from such a useful resource.

Separately, a lot of the focus on this new agreement, as with the old agreement, is over how Google treats orphan works. Again, I have to admit that I think most people are making a much bigger deal of this than it warrants. The orphan works stuff really covers a very small number of works. And giving rightsholders ten years to claim their rights seems more than adequate to me. I just don't see what the big deal is here. The real issue is that we have orphan works at all. Under the old (more sensible) copyright regime, you actually had to proactively declare your copyright interest. The only reason we have orphan works at all is that we got rid of such a system in the ongoing effort of copyright maximalists to wipe out the public domain.

Anyway, I think this is all something of a sideshow. I still stand by my original feeling towards the settlement, which is that I'm upset anyone felt it was necessary at all. Google had a strong fair use claim that I would have liked to have seen taken all the way through the courts. And, of course, this settlement really has nothing at all to do with the main issue of the lawsuit (that fair use question) and is really a debate over a separate issue: how to take the books Google scans and trying to turn them into a "book store" rather than more of a "library." And, in doing so, the important fair use question gets completely buried -- which I find unfortunate.

Filed Under: authors, book scanning, book search, copyright, fair use, orphan works, publishers, settlement
Companies: google

Newspaper Industry Lawyers Attack Fair Use, Claim Google Is Illegal

from the and-so-it-begins dept

Hmm. So, on Monday Rupert Murdoch suggests that the courts would reject fair use as a concept, and by Friday two newspaper industry lawyers just happen to have an op-ed piece in the Wall Street Journal explaining how Google violates copyright law by caching the websites it indexes. If the names of the lawyers -- Bruce W. Sanford and Bruce D. Brown -- sound vaguely familiar, that's because they're the same two lawyers who, six months ago, wrote a laughably ridiculous editorial (that time for the Washington Post) proposing special new copyright laws to save newspapers, while destroying pretty much everything that makes the internet useful. Of course, both the Washington Post and the WSJ conveniently left out the fact that these two lawyers regularly represent newspapers and other media and entertainment firms -- even as that seems rather relevant (what happened to those FTC disclosure laws?).

While I do actually agree with the lawyers that it's a shame the focus on the Google Book Search settlement avoided the big fair use question, I think they're entirely wrong to suggest that Google itself violates copyright law.

The copyright code allows public libraries to copy texts as long as there is no "direct or indirect commercial advantage." But that does not describe what search engines do. They use the complete copies they take for free to sell the advertising that has made them enormously profitable. This has a direct impact on book publishers, and on the publishers of magazines and newspapers that are losing the advertising that once supported them. According to Ken Auletta's recently released book "Googled," its search business alone now takes in 40% of all advertising across the Internet.

Perhaps Sanford and Brown are unfamiliar with basic copyright law, but the commercial advantage issue is only a small part of copyright law, and there are plenty of well-established cases of fair use in commercial use. In fact, I'd suggest that they consult the very media companies they work for, as most of them regularly rely on fair use defenses for reprinting or broadcasting content -- despite the fact that they're very commercial entities.

Furthermore, it appears that Sanford and Brown are either unfamiliar with how Google works -- or are purposely misrepresenting it. In the case of most news stories, Google has little or no ads. It only recently put ads on Google News -- long after the decline in ad revenue for newspapers. Besides, if local advertisers are finding a better return by advertising on Google, isn't that a good thing? That's called competition, and I'm surprised these lawyers would be against that.

In the last year, many fresh ideas have begun to circulate on how to help the publishing industry transition profitably to the online world. But without legal reform to back up these new business models, publishers will not have the bargaining power to make the search engines into true partners willing to compensate them meaningfully for their copyrights.

Yes, proposals like the ones that you guys suggested in the Washington Post without disclosing who pays your bills? Funny how that works. And those proposals are not about "helping the publishing industry transition profitably." Plenty of smart publishers are perfectly profitable. The proposals are about protecting the status quo and hurting the innovators who better serve the market. Sanford and Baker are trying to protect their big clients, but they'd be better off telling them to innovate, rather than push bogus editorials and pass ridiculous laws designed to hold back progress.

Filed Under: bruce brown, bruce stanford, copyright, fair use, newspapers, search
Companies: google

A Look At All The Sites Owned By Rupert Murdoch That 'Steal' Content

from the who-ya-gonna-block-now,-rupert? dept

As Rupert Murdoch talks about how he wants to cut off Google, while claiming that aggregator sites are "parasites" and "stealing" from him -- and that fair use would likely be barred by the courts, it seemed like a good time to examine at least some of the sites that are owned by Rupert Murdoch that appear to aggregate content from other sites and which rely on the very same fair use argument. We've mentioned a few in the past, but figured it wouldn't hurt to explore them more thoroughly.

Well, let's start with the flagship Wall Street Journal itself. It integrates its own "aggregator" with headlines and links to other stories. For example, on the WSJ's tech news page if you scroll down, you'll find a bunch of headlines and links to other sources -- without permission: Oops. Looks like the WSJ is "parasiting" and "stealing" according to Murdoch. Perhaps he should cut them of too.

Okay, how about Fox News itself? Yup. It's got an aggregator as well. Here's its Politics Buzztracker that aggregates and links to stories from a variety of different publications, including the NY Times, the Washington Post, MSNBC and others: Murdoch can't be too happy about all that thieving.

Then we've got the folks over at AllThingsD, who I actually think do excellent work, and who have built up a nice part of their site called "Voices." I actually quite like this and find it useful (and yes, every so often, they are kind enough to "parasite" one of my posts). In fact, it helps keep AllThingsD in my RSS reader because it's so useful. But, damn, if that doesn't look just like what Murdoch is complaining about. Not only does it have headlines, but also a fair bit of intro text (no summary, no commentary) and even the links are hidden at the bottom, rather than using the headlines as links: Of course, it's not just with news either. The folks at AlarmClock remind us that Murdoch's News Corp. owns IGN, which has a variety of properties, including the ever popular RottenTomatoes movie review aggregation site. Yes, the entire site is based on "parasiting" (according to Murdoch) movie reviews off of every other site, and pulling them all together: Good thing Murdoch is planning on working on ways to get the court to ban that sort of "fair use."

Some other IGN sites don't quite have aggregators, but I do find it interesting that they've integrated in Google search, such that you could do searches for things across the web and have them remain in a totally News Corp./IGN-branded experience. Effectively, on these pages, Murdoch's own properties are able to "parasite" back Google's own "parasite" engine. Here are two examples:

I'm sure there are probably more examples of various News Corp. properties regularly doing exactly what Murdoch and other News Corp. execs are now decrying as illegal and which must be stopped. So, it has to be asked, Mr. Murdoch, will you pull down all of these sites?

Filed Under: aggregators, copyright, fair use, rupert murdoch, search engines
Companies: news corp.

Murdoch Says Fair Use Can Be Barred By Courts; Will Probably Remove Sites From Google

from the suicide-squeeze dept

And we thought that perhaps -- just perhaps -- Rupert Murdoch was coming to his senses with the plan to delay putting up a paywall. Turns out that may have been wishful thinking. Mathew Ingram alerts us to the news that Murodch has suggested that News Corp. might actually remove its sites from Google. Of course, I won't actually believe it until it happens, but he has had his minions going around slamming Google even as News Corp. offers its own aggregators. But actually following through and removing News Corp's sites from Google would be a huge step to take -- though one right off the side of a big cliff. Still, I'm sure it would make for a fun case study.

In the meantime, his explanation is really quite stunning. He claims that he believes fair use is a concept that the courts will reject:

"There's a doctrine called fair use, which we believe to be challenged in the courts and would bar it altogether..."

Wow. Of course, if that's true, then (again) we need to point out that News Corp. has been making use of fair use for years with its own aggregators. In fact, most news organizations regularly make use of fair use. Perhaps News Corps' lawyers who work in their news divisions might want to sit Murdoch down and explain the importance of fair use from a reporting perspective. They might also want to point him to the history of fair use within copyright law, in case he thinks it's something that was just made up yesterday.

Filed Under: aggregators, copyright, fair use, rupert murdoch, search engines
Companies: google, news corp.

Australian Radio Program On 'Piracy' What 60 Minutes Should Have Done

from the you-mean-actually-have-facts? dept

On Monday, we wrote about that that ridiculous attempt by 60 Minutes to do a story about movie piracy that was basically one long press release for the MPAA's position. Facts weren't checked, and the reporter, Leslie Stahl, didn't bother to push back on a single claim made by any of the (all industry insider) guests. However, Boing Boing points us to a "radio documentary" on piracy that was done on Australian radio the very same day as the 60 Minutes episode aired. You may notice a major difference in that the Australian radio folks actually looked at the facts, invited on people who could refute industry claims, and actually pushed back on claims by the industry:

Adrianne Pecotic (from anti-piracy group AFACT): The fact that there is a level of illegitimate consumption of film and television is something that detracts from the revenue that could go back into the industry and could go back into supporting local video stores, local cinemas and online distribution. Theft is not justified because someone is being successful, and that's a really important point in this debate.

Oscar McLaren (radio host): But it does seem strange that I mean, we're told in quite apocalyptic terms often that the video industry and the film industry is really starting to hurt. I don't imagine many people would actually be aware that the revenues are in fact going up quite steadily and have been for the past decade or so.

Adrianne Pecotic: I think the important thing about the losses that are being suffered by the film industry through piracy, is that individual investors in individual films rely on that investment in that particular film, for that film maker, or that investor as their entire revenue. If you're looking at the analysis across the board of the whole industry and whether it is going up or whether more people are consuming films or less people are consuming films, you're not asking the question of whether a particular film has had the opportunity to recoup its proper revenue.

Oscar McLaren: For the record, box office sales were also at all-time high levels last year, reaching nearly $1-billion.

The program also pushed back against the repeated claim that a download is no different than shoplifting:

Oscar McLaren: But many lawyers in the debate argue that stealing a physical object is very different to breaching intellectual property laws....

Jessica Litman: The difference between a song and a cookie is if I eat a cookie, then you can't have it because I've eaten it, it's gone. But if I listen to a song, you can listen to a song, your friend can listen to a song, anyone can listen to a song, and because intellectual property is capable of being enjoyed by many people at the same time, it's subject to somewhat different rules than cookies. Or houses, or other kinds of property.

The report goes in-depth in other areas as well, including a discussion on fair use/fair dealing, the history of copyright (and how it's often been abused in the name of artists, when it really had nothing to do with them) and the importance of mashup/remix culture. It's the sort of report that a program like 60 Minutes could have -- and should have -- done, but did not. Kudos to ABC radio down in Australia.

Filed Under: australia, copyright, fair use, piracy

Disney's Keychest: Is Giving Back Your Fair Use Rights With More DRM Really A Step Forward?

from the redefining-fair-use dept

A bunch of folks have sent in different stories about Disney's new "Keychest" technology offering, which would (in theory) allow users to purchase content that would be stored online, and which they could then access from any "participating service."

With Keychest, when a consumer buys a movie from a participating store, his accounts with other participating services--such as a mobile-phone provider or a video-on-demand cable service--would be updated to show the title as available for viewing. The movies wouldn't be downloaded; rather, they would reside with each particular delivery company, such as the Internet service provider, cable company or phone company.

The idea, supposedly is:

to address two of the biggest hurdles blocking widespread consumer adoption of movie downloads: the difficulty of playing a movie back on devices other than a PC or laptop, and limited storage space on those computers' hard drives.

Now, while you must admit that allowing people to access the same content after a single purchase on multiple devices is definitely a step up from the "old" way of doing things, it does kind of ignore some important points: such as the fact that, for the most part, you could already do this on your own. As we know, it's legal to rip your CD's and then store that content on an iPod or on your computer and listen to the music how you want to do so. And, even though this is perfectly legitimate fair use of content for movies as well, Hollywood has used the worst provision in the DMCA -- the anti-circumvention provision -- to block people from doing what is accepted fair use with movie and television content.

So all Keychest really seems to be doing is giving you back your fair use rights on content -- but also wrapping it in additional DRM, such that it only works on "participating services." Oh, and it could include other limitations as well:

And Keychest would allow movie studios to dictate how many devices, connected to which distribution networks, a given title can be played on.

So, kudos to Disney for recognizing that people hate having to buy the same content over and over again and hate being limited on what devices they can view content on... but, creating a new, more permissive DRM solution, just to give back some of an individual's fair use rights, isn't really a huge win.

Filed Under: buy once, content, copyright, drm, fair use, keychest
Companies: disney

Shepard Fairey Destroys Evidence, Goodwill; Harms His Case For No Good Reason

from the grow-up dept

On Friday morning, someone "working with" Shepard Fairey alerted me that some news was coming out that day about his lawsuit with the Associated Press over his famous Barack Obama poster: I finally got the "official" statement from Fairey late on Friday, just as I was about to leave work for the weekend, and the whole thing was so ridiculous that I just figured I'd leave it until today. Apparently, Fairey, for absolutely no good reason, tried to destroy evidence and then lie about which photo he actually used to make his poster. He's now come clean about this, and while he's right in his statement that this shouldn't have any impact on the underlying case, it certainly doesn't help. It was already pretty well known that Fairey was hardly the poster child of fair use -- given that he has a history of going after others who copy his own work, despite being an "appropriation artist" himself. But, even so, this is beyond dumb -- something I don't say lightly.

Fairey still has a very strong fair use claim -- which is entirely separate from the question of whether or not Fairey did something incredibly stupid here. Even if he used the image the AP claimed he did (which he now admits), it still seems like this is an obvious case of fair use. But destroying evidence and lying -- especially when there was no good reason to do so -- just harms his credibility and makes it that much more likely that he'll lose his case not for any legitimate reason, but because of his own separate actions in dealing with this case. There are important fair use issues at play here, and Fairey just made it that much harder to maintain the high ground.

While some are pointing out that this is the sort of thing that happens when copyright laws always seem to stack the deck against fair use, that's still no excuse for lying and trying to destroy evidence. Yes, the system sucks, but doing something like this only harms an otherwise strong case.

Filed Under: copyright, evidence, fair use, lies, shepard fairey

Access Copyright Says That There Should Be Less Fair Use

from the let's-not-listen-to-our-customers dept

Access Copyright, a Canadian copyright collections agency that has already positioned the discussions on copyright reform in Canada as a war against consumers, has had its submission to the government on the topic published, and it's really quite stunning in that it says that "fair dealing" (the Canadian version of fair use) is already too broad and needs to be greatly restricted. But the really stunning statement from the filing is the following:

Access Copyright submits that good public policy should not be dictated by legalizing common public practices.

Actually, it seems that's the very definition of good public policy. You know what bad public policy is? Destroying basic consumer rights and criminalizing basic consumer behavior because some obsolete organization can't figure out a way to adjust its business model.

Filed Under: canada, copyright, fair dealing, fair use
Companies: access copyright