One More Week To Enter Our 1923 Public Domain Game Jam

from the gaming-like-it's-1923 dept

Gaming Like It's 1923: The Newly Public Domain Game Jam

We're down to crunch time. As announced on January 1st, we're co-hosting a fun public domain game jam to celebrate the fact that works from 1923 are finally in the public domain, after years and years of lobbying efforts by the legacy copyright industries kept pushing out and blocking the release of cultural works into the public. When the works from 1923 were first published, they all expected to be in the public domain by 1979 at the latest. But intense anti-public lobbying by Hollywood and other copyright holders have held that off for decades, doing significant harm to culture and our access to culture. I still believe that these copyright term extensions were unconstitutional, but tragically the Supreme Court disagreed.

Either way, we finally got a public domain, and while it's way late, we should absolutely be not just celebrating it, but making use of it (as a side note, we'll also be celebrating it at the "Grand Re-Opening of the Public Domain" event being put on by Creative Commons and the Internet Archive). Our game jam is a chance to explore and experiment with ideas to make use of newly public domain works to create games -- video games, tabletop games, role playing games, etc. We're encouraged that we've already received a bunch of entries (I expected most people would wait until the last minute to submit, but it hasn't worked out that way).

Either way, there's one week left to enter the contest -- and even if you don't think of yourself as a game designer, you can jump right in and give it a try (while the video games need to work in a browser, analog games just need to include the instructions, and there are all sorts of ways to create interactive fiction as well). These games don't need to be polished. The whole point of a game jam is for people to just create something new and get it out there. We have an all-star panel of judges listed on the site, who will be reviewing the games in February, and we'll be giving out prizes for the best ones in a few different categories -- so don't miss out.

Filed Under: 1923, copyright, game jam, games, public domain

Reminder: You Still Have The Rest Of January To Enter Our Public Domain Game Jam

from the gaming-like-it's-1923 dept

Gaming Like It's 1923: The Newly Public Domain Game Jam

As we mentioned earlier this month, in celebration of the fact that the US finally has allowed older works to enter the public domain again, after a very long hiatus, we're hosing a public domain game jam, encouraging people to create games (video games, tabletop games, LARPs, storytelling games, whatever) using newly public domain material. What good is a public domain if people aren't using it and building amazing new works with it? We've already seen some copyright maximalists -- who worked hard for years to prevent such works from entering the public domain -- mocking the excitement many of us have for finally seeing works entering the public domain (one of whom wondered why anyone would still care about works from 1923, which is infuriating, given their role in keeping those works away from the public domain). So, let's prove them wrong and build some amazing new works.

We're halfway through the month of January, and we already have five amazing entries, all building on newly public domain material. We were expecting people to most likely wait towards the end of the month to submit, so already having so many entries is a great sign. But, it also means that there's plenty of time for you to come up with a game as well. On the game jam page we have some pointers/guidelines and links to many of the newly public domain materials.

We also have an all-star panel of judges, from both the gaming and the copyright law worlds, and we're offering copies of our (public domain) CIA: Collect It All card game (or some of our copyright-themed t-shirts) as prizes for the best games in a variety of different categories. Even if you've never designed a game, now's your chance. Part of the idea behind a short-term "game jam" like this is that it encourages people to make something quick and get it out there for testing and improvement. We're excited about the submissions that have already come in, but just as excited to find out what else you guys can come up with over the rest of the month.

Filed Under: 1923, copyright, game jam, games, public domain

Despite Losing Its Copyright Case, The State Of Georgia Still Trying To Stop Carl Malamud From Posting Its Laws

from the get-out-of-here dept

When we last checked in with Carl Malamud and his Public.Resource.Org, they were celebrating a huge victory in Georgia, where the 11th Circuit had ruled that of course Malamud was not infringing on anyone's copyrights in posting the "Official Code of Georgia Annotated" (OCGA) because there could be no copyright in the law. As we explained at length in previous posts, Georgia has a somewhat bizarre system in which the only official version of their law is the "officially" annotated version, in which the annotations (with citations to caselaw and further explanations) are written by a private company, LexisNexis, which then transfers the copyright (should one exist) on those annotations to the state.

Malamud, of course, has spent years, trying to make it easier for people to access the law -- and that means all of the law, not just some of it. So when he posted a much more accessible version of the OCGA, the state sued him for copyright infringement. While the lower court ruled that the OCGA could have copyright, that the State of Georgia could hold it and that Malamud's work was not fair use, the 11th Circuit tossed that out entirely, saying that since the OCGA was clearly the only official version of the law, there could be no valid copyright in it.

It was a pretty thorough and complete win. And, if the state of Georgia were mature and reasonable, you'd think that they'd (perhaps grudgingly) admit that anyone should have access to its laws and move on. But, this is the state of Georgia we're talking about. And, it appears that the state has decided that rather than taking the high road, it's going to act like a petty asshole.

Last week Malamud sent a letter describing how the state is now trying to block him from purchasing a copy of the OCGA. He's not looking for a discount or any special deal. He wants to buy the OCGA just like anyone else can. And the state is refusing to sell it to him, knowing that he's going to digitize it, put it online and (gasp) make it easier for the residents of Georgia to read their own damn laws:

I have sent numerous emails and placed numerous calls to my sales representative at the LexisNexis, who has not responded (my account was terminated by LexisNexis during the litigation). I’ve tried reaching out on Twitter, as have numerous others on that social media platform. Again, no response. My lawyer called the LexisNexis lawyer who said I could buy the code only if I paid the full rack rate—which I readily agreed to do—and then he promptly dropped the matter. I wrote to Mr. Russell who said on November 19, 2018 that he would “look into that matter,” and you have clearly not looked very long or very hard as I have not heard back from anybody.

When the Honorable Richard W. Story of the United States District Court for the District of Georgia issued a March 13, 2017 opinion granting summary judgement to the State of Georgia, within hours I removed all trace of the OCGA itself, and all mention of the OCGA from my web sites and from all web sites around the net. I did not wait for the April 7, 2017 permanent injunction to be issued, I complied immediately because I respect our system of justice, because I respect the rule of law, and because I respect our courts.

This is in sharp contract to your own behavior, ignoring the clear and unambiguous ruling of the United States Court of Appeals. Your behavior is an insult to the Court. I understand the State of Georgia will be appealing their decision, and we look forward to meeting you in the Supreme Court of the United States to argue our position. Until then, however, both the State of Georgia and your foreign-based vendor have an obligation to obey the law of the United States.

It appears that this is par for the course for the real life grownups who work for the State of Georgia:

Mr. Ruskell, your game of “hide the code” brings dishonor on the people of Georgia, who you are handsomely paid to serve. I have been attempting to discuss this issue with your office since May 13, 2013, and not once has anybody deigned to talk to me. When you filed suit on July 21, 2015, your complaint included bizarre accusations that my behavior was a form of “terrorism.” After you won summary judgment, you filed an April 21, 2017 motion for fees explaining to the court that I needed to be punished and made an example of to dissuade others from attempting to make the laws available without first obtaining prior permission from your vendor.

The letter also addresses Anders Ganten of LexisNexis (owned by the RELX Group, a company based in the UK):

Mr. Anders, your corporation, with its immense resources and technical capabilities, can easily make money through all manner of legitimate value-added products without exercising arbitrary control over the content your office seeks to “acquire.” As a vendor to the State of Georgia, you join them in the role of trustee on behalf of the people. Your corporation often boasts of the unparalleled information technology at your disposal that provides superior services to law firms and legal professionals. You have no need to engage in this subterfuge and behind-the-scenes lobbying, and it is unconscionable for you to flout the law of the United States as you have done by refusing to make the OCGA available to me. If your foreign corporation wishes to do business in the United States, you should respect our legal system and you must show respect for the pronouncements of our judges.

No matter how you look at this, it appears that LexisNexis, together with the State of Georgia, are acting like petty tyrants, ignoring a court order -- but even worse, they are refusing to sell a copy of their legal code (already a bizarre stance) out of fear that Malamud will make it easier for the public to read the laws. If you happen to be a Georgia citizen, maybe ask why your own government is trying to hide its laws from you...

Filed Under: carl malamud, copyright, georgia, ocga, official code of georgia annotated, public domain
Companies: lexisnexis, public.resource.org

This Week In Game Jam History...

from the PD-mining dept

Gaming Like It's 1923: The Newly Public Domain Game Jam

On New Year's Day, we launched a special celebration of this milestone year in which new works are finally exiting copyright and entering the US public domain: a public domain game jam.

From now until the end of the month, we're accepting submissions of all sorts of games (video games, board games, tabletop RPGs, LARPs, and just about anything else you can dream up...) based on works from 1923 that have finally become free for all to use without fear of copyright issues. There's a bunch of high-profile material to consider, and of course a whole world of lesser-known works that we hope people will dig into for inspiration.

At the end of the month, our growing panel of expert judges (including Cory Doctorow, Whitney "Strix" Beltran, Dan Bull, Rebecca Tushnet, Nicky Case, Mark Lemley, Daphne Keller, Jason Scott, Jason Morningstar, J Li, Eric Goldman, Carolyn Homer, Albert Kong) will select winners in six different categories, to receive prizes including Techdirt copyright swag and copies of our recently-Kickstarted card game, CIA: Collect It All:

• Best Analog Games
• Best Digital Game
• Best adaptation of a 1923 work
• Best remixing of multiple sources (at least one has to be from 1923)
• Best “Deep Cut” (use of a work not listed on any of the round up articles)
• Best Visuals

Even though we are less than a week into 2019, we've already had three submissions which you can go try out right now! But we're expecting a lot more competition — so whether you're an experienced game designer, an amateur looking to try their hand, or just someone who is really inspired by a work that has finally entered the public domain, head over and join the jam on Itch... then get to work!

Filed Under: board games, copyright, game jam, gaming, public domain, video games

Announcing The Public Domain Game Jam: Gaming Like It's 1923

from the make-sonny-bono-proud dept

Gaming Like It's 1923: The Newly Public Domain Game Jam

Happy new year, everyone. Every year, soon after the new year, we post a somewhat disappointing post describing how, once again, no new works have gone into the public domain in the US, because various lobbying interests have continued to extend copyright over and over again, with the last such extension coming in 1998 (the last time old works automatically entered the public domain in the US), better known as the Sonny Bono Copyright Term Extension Act. It's been 21 years of nothing, and that's been quite sad. But this year is different. Thanks to public interest in copyright and people getting increasingly angry about our locked up culture, Hollywood didn't even make a serious attempt to extend copyrights again (to be fair, they put out some feelers, and when they realized it would be a total disaster, they let it go).

So this year, we've been seeing tons of celebratory articles, highlighting how works from 1923 are finally entering the public domain (WAY later than they should have, but not much we can do about that now). So, it's time to celebrate. And what good is a public domain if you don't do anything with it? So, today, now that these works are in the public domain, we're announcing the Gaming Like It's 1923 Newly Public Domain Game Jam. We've teamed up, once again, with Randy Lubin from Diegetic Games, who was our partner on the (public domain) CIA: Collect It All card game, to run this game jam.

If the idea of a game jam is new to you, it's pretty simple: it's just a month-long contest for you to create games: these can be video games, board games, card games, RPGs, interactive fiction, etc. The one key requirement: it must use something from 1923 that has just entered the public domain. Those works are free for anyone to use, and we should celebrate that by actually making use of them to do something fun. So go create a game and submit it. There are some more details on the rules/restrictions and some pointers on the game jam page. Go make Sonny Bono proud (despite the fact that he believed that, contrary to the Constitution, copyright should last forever). We're offering up copies of our CIA game and some of our copyright-related t-shirts as prizes.

If you need some source material for inspiration, Duke's Center for the Study of the Public Domain already has a nice page of highlights of newly public domain material, as well as a nice spreadsheet with even more works. Also, there have been a ton of news articles in the lead up to this first US public domain day in twenty-one years, that might also get you thinking. Here's ones from the Smithsonian, the NY Times, BoingBoing, NPR, Quartz, Motherboard, The Stranger and Slate, so start hunting around for great cultural works to build on...

We've already put together an all-star cast of judges, mixing folks from both the worlds of gaming and copyright/public domain, including folks like Cory Doctorow, Whitney "Strix" Beltran, Dan Bull, Rebecca Tushnet, Nicky Case, Mark Lemley, Daphne Keller, Jason Scott, Jason Morningstar, J Li, Eric Goldman, Carolyn Homer, Albert Kong and we'll likely be naming a few more judges over the course of the month. Stay tuned.

Filed Under: 1923, board games, copyright, game jam, public domain, video games

RIAA Court Filing In Stairway To Heaven Case Warns Against *OVERPROTECTION* By Copyright

from the pigs-are-flying-over-hell's-frozen-tundra dept

Here's one you don't see everyday. The RIAA is telling a court that it needs to be careful about too much copyright protection. Really. This is in the lawsuit over "Stairway to Heaven" that we've been covering for a while now. As we noted, the 9th Circuit brought the case back to life after what had appeared to be a good result, saying that Led Zeppelin's "Stairway" did not infringe on the copyright in the Spirit song "Taurus." While we were a bit nervous about the case being reopened after a good result, as copyright lawyer Rick Sanders explained in a pair of excellent guest posts, there were good reasons to revisit the case -- in part to fix the 9th Circuit's weird framework for determining if a song has infringed, and in part to fix some bad jury instructions.

As with the Blurred Lines case, I've been curious how the RIAA and various musicians would come down on these cases. After all, I can imagine how they could easily end up on either side of such a case. Lots of musicians take inspiration from other musicians (it's actually kind of an important way for most musicians to develop), and if that's seen as infringing, that seems like it should be a huge problem. But, of course, to make that argument would require the RIAA to actually admit that copyright can go too far.

And... that's actually what it's done. The RIAA and the NMPA (National Music Publisher's Association, which historically is just as bad as the RIAA on many of these issues) actually had famed law professor Eugene Volokh write an interesting amicus curiae brief in support of the 9th Circuit rehearing the case en banc (with a full panel of 11 judges, rather than just the usual 3). Hat tip to Law360's Bill Donahue, who first spotted this.

Anyway, who among you ever expected the following in an RIAA brief:

Copyright law thus needs to carefully calibrate and balance its rules to prevent both over- and underprotection. Composers’ intellectual property must be protected, but new songs incorporating new artistic expression influenced by unprotected, pre-existing thematic ideas must also be allowed. The panel opinion badly overprotects, and in doing so is inconsistent with other federal appeals court decisions that have addressed the same issues.

Who are you and what have you done with the real RIAA?

Other parts of the RIAA brief (and I can't believe I'm saying this) make the same argument I've been making about this case (and the Blurred Lines) case for years:

This Court should also correct the precedent set by the panel allowing findings of infringement based on the use of uncopyrightable elements. Most compositions share some elements with past compositions—sequences of three notes, motifs, standard rhythmic passages, arpeggios, chromatic scales, and the like. Likewise, all compositions share some elements of “selection and arrangement” defined in a broad sense. The universe of notes and scales is sharply limited. Nearly every time a composer chooses to include a sequence of a few notes, an arpeggio, or a chromatic scale in a composition, some other composer will have most likely “selected” the same elements at some level of generality.

To keep every work from infringing—and to keep authors from being able to claim ownership of otherwise unprotected elements— this Court has stressed that selection and arrangement is infringed only when there is virtual identity between two works, not loose resemblance. The same principle should be recognized for music.

The brief goes into more detail -- again more or less repeating what I said in my original post, but with a bit less swearing (okay, 100% less swearing) -- on why it's crazy to argue that non-protectable works should be analyzed in determining if there's infringement:

The panel opinion concluded that the instruction nonetheless erred, on the theory that such common elements could still be protected if “used in combination with other elements in an original manner,” slip op. at 20, as a form of creative “selection and arrangement,” id. But all compositions will share some elements of “selection and arrangement,” defined in a broad sense, with some earlier compositions. To prevent nearly every new composition being at risk for liability, copyright claims based on “original contributions to ideas already in the public domain,” Satava v. Lowry, 323 F.3d 805 (9th Cir. 2003), are seen as involving a “thin copyright that protects against only virtually identical copying.” Id. at 812; see also Ets-Hokin v. Skyy Spirits, Inc., 323 F.3d 763, 766 (9th Cir. 2003) (“When we apply the limiting doctrines, subtracting the unoriginal elements, Ets-Hokin is left with . . . a ‘thin’ copyright, which protects against only virtually identical copying.”); Rentmeester v. Nike, Inc., 883 F.3d 1111, 1128-29 (9th Cir. 2018). This Court has long recognized this principle in claims involving visual art that allegedly creatively combines public domain elements, as with the sculptures in Satava or the photographs in Ets-Hokin and Rentmeester. The same should apply to music.

I also agree with the RIAA in saying that the "inverse ratio" rule is incredibly stupid. This is the rule adopted by some courts that the amount of "substantial similarity" necessary to show infringement decreases with the amount of "access" the accused infringer had to the original work. But, as the RIAA notes, that makes no sense (especially these days):

Indeed, while as a practical matter few composers create works that are strikingly similar to older ones, nearly all composers enjoy a striking level of access to a vast range of works: They hear them online, on the radio, at concerts, at home, and elsewhere. Indeed, they may hear them without ever seeking them out—played as mood music in elevators, supermarkets, and restaurants, or as incidental music in a film or in a television or radio commercial. Yet even if hearing the songs this way counts as a “high degree of access” (itself a vague concept that juries would have a difficult time applying), that should not allow the creators of new works to be sued under a “lower standard of proof of substantial similarity,”

And, finally, I agree with the RIAA that it would be a mistake to let a jury hear the recordings to compare the two songs. The case is not about the copyright in the sound recordings, but in the composition (which are not the same). And the problem with the sound recording is that it includes the unprotectable/public domain content, and that can be hard for a non-professional jury to separate out. The RIAA agrees:

Here, for instance, the panel agreed with Judge Klausner that the jury should not be allowed to determine substantial similarity by comparing Stairway to Heaven to Spirit’s sound recording of Taurus. Slip op. at 25, 31, 34. Unsurprisingly, Judge Klausner concluded that, because of this, it was better for the jury not to hear the sound recording at all, especially since hearing the sound recording would do vanishingly little to help the jury determine anything else (such as access).

Finally, the RIAA (correctly!) calls out the very weird part of the 9th Circuit ruling that suggested that as an alternative to allowing the jury to hear the sound recordings, they should be allowed to observe Led Zeppelin's Jimmy Page listening to the recordings "to evaluate his demeanor." As the RIAA points out, this is utter nonsense.

The panel rejected this judgment call on the grounds that “allowing the jury to observe Page listening to the recordings would have enabled them to evaluate his demeanor while listening to the recordings.” Slip op. at 34. But is this really so?

Imagine Page sitting there, relistening to the recording of Taurus (which he had already recently heard when preparing for the trial, III ER 502). The jurors are watching his demeanor, an unusual thing for people to do when they are listening to a song together with someone. What would they be looking for on his face that would in any way bear on the question whether he had heard the song nearly 50 years before, in 1967 to 1971? Is there some supposedly tell-tale facial expression that captures the reaction, “Yes, I had heard that song back then”?

Anyway, thanks to Led Zeppelin and Professor Volokh for actually creating a scenario where the RIAA and I are mostly on the same page -- and that page is warning about the negative consequences of overprotection of copyright in harming artists and limiting cultural output.

Filed Under: blurred lines, copyright, eugene volokh, inspiration, led zeppelin, overprotection, public domain, spirit, stairway to heaven, taurus
Companies: riaa

Appeals Court Says Of Course Georgia's Laws (Including Annotations) Are Not Protected By Copyright And Free To Share

from the huge-news dept

Phew. The 11th Circuit appeals court has just overturned a lower court ruling and said that Georgia's laws, including annotations, are not covered by copyright, and it is not infringing to post them online. This is big, and a huge win for online information activist Carl Malamud whose Public.Resource.org was the unfortunate defendant in a fight to make sure people actually understood the laws that ruled them. The details here matter, so let's dig in:

For the past few years, we've been covering the fairly insane situation down in Georgia, where they insist that the state's annotated laws are covered by copyright. This is not quite the same thing as saying the laws themselves are covered by copyright. Everyone here seems to recognize that Georgia's laws are not covered by copyright. But here's where the problem comes in. The state of Georgia contracts out with a private company, LexisNexis, to "annotate" the law basically giving more context, and discussing the case law interpretations of the official code. The deal with the state is that LexisNexis then transfers whatever copyright it gets from the creation of the annotations back to the state. Finally, the only "official" version of Georgia's state laws is in the "annotated" version. If you want to look up the official law of Georgia you are sent to the "Official Code of Georgia Annotated" (OCGA), and it's hosted by LexisNexis, and it has all sorts of restrictive terms of service on top of it. Indeed, every new law in Georgia literally says that it will amend "the Official Code of Georgia Annotated," which certainly suggests that the OCGA -- all of it -- is the law in Georgia. And the state insisted that part of the law was covered by copyright.

Malamud found this obviously troubling, believing that the law must be freely accessible to anyone in order to be valid. The state of Georgia threatened him and then sued him claiming that reposting the OCGA in a more accessible fashion was copyright infringement. The district court not only found that the annotations (even if part of the official law) could be covered by copyright but further that it was not fair use for Malamud to post them online. This was a horrifying decision.

And, it's also no longer a valid one.

The appeals court has put together a thorough ruling rebuking the lower court's analysis, and noting that the OCGA is not subject to copyright at all. The court admits the annotations by a private company make this more complicated than the general question of whether or not laws are covered by copyright, but notes that since this is so closely tied to the law, and directed by state officials, it seems clear that the annotations cannot be covered by copyright:

To navigate the ambiguities surrounding how to characterize this work, we resort to first principles. Because our ultimate inquiry is whether a work is authored by the People, meaning whether it represents an articulation of the sovereign will, our analysis is guided by a consideration of those characteristics that are the hallmarks of law. In particular, we rely on the identity of the public officials who created the work, the authoritativeness of the work, and the process by which the work was created. These are critical markers. Where all three point in the direction that a work was made in the exercise of sovereign power -- which is to say where the official who created the work is entrusted with delegated sovereign authority, where the work carries authoritative weight, and where the work was created through the procedural channels in which sovereign power ordinarily flows -- it follows that the work would be attributable to the constructive authorship of the People, and therefore uncopyrightable.

The court admits that there are strong arguments in both directions on this one, but:

... at the end of the day, we conclude that the annotations in the OCGA are sufficiently law-like so as to be properly regarded as a sovereign work. Like the statutory text itself, the annotations are created by the duly constituted legislative authority of the State of Georgia. Moreover, the annotations clearly have authoritative weight in explicating and establishing the meaning and effect of Georgia’s laws. Furthermore, the procedures by which the annotations were incorporated bear the hallmarks of legislative process, namely bicameralism and presentment. In short, the annotations are legislative works created by Georgia’s legislators in the exercise of their legislative authority.

Because of this, the court doesn't even need to do a fair use analysis. Since there's no copyright in the OCGA, the fair use question doesn't even matter, and Malamud (and anyone else) is free to post and access the full OCGA.

There's a lot more details in the opinion, but the above quotes summarize the point quite nicely. Congrats to Carl Malamud, who has suffered quite a bit in facing this fairly insane lawsuit. As we noted early on, even if the state felt that it's copyright was valid (which was still a big question) the fact that it would seek to sue a small nonprofit for daring to make their own laws accessible was shameful and disgusting.

We'll close out this post with the concluding paragraphs of the opinion as well, which set out, once again, why the law (including annotations) is public domain and should be freely accessible to all:

The OCGA annotations are created by Georgia’s legislative body, which has been entrusted with exercising sovereign power on behalf of the people of Georgia. While the annotations do not carry the force of law in the way that statutes or judicial opinions do, they are expressly given legal significance so that, while not “law,” the annotations undeniably are authoritative sources on the meaning of Georgia statutes. The legislature has stamped them “official” and has chosen to make them an integral part of the official codification of Georgia’s laws. By wrapping the annotations and the statutory text into a single unified edict, the Georgia General Assembly has made the connection between the two inextricable and, thereby, ensured that obtaining a full understanding of the laws of Georgia requires having unfettered access to the annotations. Finally, the General Assembly’s annual adoption of the annotations as part of the laws of Georgia is effected by the legislative process -- namely bicameralism and presentment -- that is ordinarily reserved for the exercise of sovereign power.

Thus, we conclude that the annotations in the OCGA are attributable to the constructive authorship of the People. To advance the interests and effect the will of the People, their agents in the General Assembly have chosen to create an official exposition on the meaning of the laws of Georgia. In creating the annotations, the legislators have acted as draftsmen giving voice to the sovereign’s will. The resulting work is intrinsically public domain material, belonging to the People, and, as such, must be free for publication by all.

As a result, no valid copyright can subsist in these works.

This ruling also strengthens Malamud's arguments in some of his other legal fights, concerning the concept of "incorporation by reference," where laws reference this or that standard created by 3rd parties, and require various entities to abide by those standards. Malamud has long argued that if the law incorporates those standards, then those standards must be freely accessible for the same reason -- and has been fighting that issue in a different court case. Reading this ruling certainly gives weight to that argument as well (though that one is in a different circuit).

Filed Under: 11th circuit, annotations, carl malamud, copyright, georgia, law, official code of georgia annotated, public domain
Companies: lexisnexis, public.resource.org

Compromise Music Modernization Act Will Bring Old Sound Recordings into The Public Domain, Tiptoe Towards Orphan Works Solution

from the some-good-things dept

Earlier this year we wrote about the significant concerns we had with the CLASSICS Act, that sought to create a brand new performance right for pre-1972 sound recordings, requiring various internet platforms to pay for that additional right to stream such music. As we've discussed for years, pre-1972 sound recordings are kind of a mess in the copyright world. That's because they weren't covered by federal copyright law -- but rather a mess of state laws (some statutes, some common law). Historically, none of that included a performance right, but some courts have recently interpreted one to exist (while others have said it doesn't). On top of that, some of those state laws mean that certain works will remain covered by copyright for many decades after they would have gone into the public domain under federal copyright law.

Many people have advocated for "full federalization" of those pre-1972 works, taking them away from those state copyright laws, and putting them on an even playing field with all other copyright-covered works. There is an argument against this, which is that doing so also creates brand new rights for works that are decades old, which clearly goes against the purpose and intent of copyright law (incentivizing the creation of new works for the public), but given what a mess having two (very different) systems entailed, it seemed like full federalization was the most sensible way forward.

Of course, rather than pursue that path, the RIAA pushed through something much worse and totally one-sided. The CLASSICS Act created a new performance right for pre-1972 sound recordings, but left out the federalization part. In other words, the copyright holders would get all of the benefits of this new law, and the public would still be unable to have these recordings go into the public domain for many, many decades. Senator Wyden introduced an alternative bill, the ACCESS Act, which pushed for full federalization.

Over in the House, the CLASSICS Act was unfortunately merged with a separate bill, the Music Modernization Act (which is mostly uncontroversial) and voted through unanimously. However, it hit a stumbling block in the Senate -- leading to negotiations to create a compromise between Wyden's ACCESS Act and the original CLASSICS Act. That compromise has now been released and... it's actually fairly decent. To be clear, this is not how anyone would draw up copyright law from scratch, and there are still bits and pieces that concern me in the bill. But compared to where we were with the CLASSICS Act, this is a pretty big improvement. It does still create this brand new performance right for pre-1972 works, which seems to totally undermine the point of copyright law, but seeing as that was going to happen no matter what under the original CLASSICS Act, the compromise here seems much better -- as it makes sure that even as those works get this new right, they also will move into the public domain much faster than they otherwise would.

The key elements in this compromise bill include full federalization of pre-1972 sound recordings, putting all copyright works under the same system. There is a slightly weird tiered system for gradually moving pre-1972 sound recordings into the public domain where they belong. The new rules set a copyright term of 95 years after the date of publication -- bringing works into the public domain much sooner than they would have been if they remained under state law (where the term could have gone up to 190 years or so). And then there's a set of "transition" periods for works to get them into the public domain:

PRE-1923 RECORDINGS.—In the case of a sound recording first published before January 1, 1923, the transition period described in subparagraph (A)(i)(II) shall end on December 31 of the year that is 3 years after the date of enactment of this section.

1923 - 1946 RECORDINGS.--In the case of sound recordings first published during the period beginning on January 1, 1923, and ending on December 31, 1946, the transition period described in subparagraph (A)(i)(II) shall end on the date that is 5 years after the last day of the period described in paragraph (A)(i)(I).

1947-1956 RECORDINGS.--In the case of sound recordings first published during the period beginning on January 1, 1947, and ending December 31, 1956, the transition period described in subparagraph (A)(i)(II) shall end on the date that is 15 years after the last day of the period described in subparagraph (A)(i)(I).

The really key part here is that first batch. Those are works where they should already be in the public domain under US law, as pre-1923 works are deemed to be in the public domain under federal law. But, since state laws have gone on much longer, we've locked up tons of important early US sound recordings, especially a ton of early jazz recordings that almost no one can hear. Under this law, those works will come into the public domain three years after the law is in place. Some will argue (reasonably!) that this is already too long, and you'd be right (also, that it's weird to give those very old works a new right just for a three year period). But it's better than having to wait until 2067 for them to be freed up entirely.

Now there's a second important idea put into this new bill -- which is a very, very, very light touch "orphan works" proposal. For decades now, plenty of people in the copyright space have fretted over what to do with the orphan works issue. This is an issue created by our own stupid copyright policies, in which, because the law no longer requires registration, there are billions of works where it is unclear who holds the copyright on those works, or even if there's any copyright at all. It's been a problem for many years that can seriously impact our ability to preserve historical culture, among other things.

Of course, every time Congress (and the Copyright Office) suggested proposals to deal with this issue (even bad suggestions and really bad suggestions), some copyright holders (mainly photographers) would freak out, and misleadingly claim that orphan works laws were designed to strip them of their copyright.

So, this new amended bill creates a very minor tiptoe towards an orphan works concept, just with sound recordings and only for "certain noncommercial uses of sound recordings that are not being commercially exploited." This is way, way, way too limited, but it's a start. Under the rules, someone engaged in non-commercial use (and boy, I can't wait to see the litigation fights over what counts as commercial v. non-commercial use...), has to make a "good faith, reasonable search" to see if a work is being commercially exploited. Following that, they have to file a notice with the Copyright Office announcing their intention to use the sound recording, allowing a 90 day period for someone to object. If there are no objections then, the work may be used in such non-commercial projects. This is extremely limited (way too much so), but hopefully will be useful to sites like the Internet Archive and various libraries. It would be nice if it went much further, but considering that no attempt to deal with orphan works has ever gone anywhere, this seems like at least a tiny step in the right direction. At the very least, hopefully it can be used to show that the world doesn't collapse when there is a way to make use of orphan works when the copyright holder cannot be found.

Filed Under: classics act, copyright, federalization, orphan works, performance right, pre-1972 sound recordings, public domain, sound recordings

Congressional Research Service Reports Now Officially Publicly Available

from the huge-news dept

For many, many years we've been writing about the ridiculousness of the Congressional Research Service's reports being kept secret. If you don't know, CRS is a sort of in-house think tank for Congress, that does, careful, thoughtful, non-partisan research on a variety of topics (sometimes tasked by members of Congress, sometimes of its own volition). The reports are usually quite thorough and free of political nonsense. Since the reports are created by the federal government, they are technically in the public domain, but many in Congress (including many who work at CRS itself) have long resisted requests to make those works public. Instead, we were left with relying on members of Congress themselves to occasionally (and selectively) share reports with the public, rather than giving everyone access to the reports.

Every year or so, there were efforts made to make all of that research available to the public, and it kept getting rejected. Two years ago, two members of Congress agreed to share all of the reports they had access to with a private site put together by some activists and think tanks, creating EveryCRSReport.com, which was a useful step forward. At the very least, we've now had two years to show that, when these reports are made public, the world does not collapse (many people within CRS feared that making the reports public would lead to more political pressure).

Earlier this year, in the Consolidated Appropriations Act of 2018, there was a nice little line item to officially make CRS reports publicly available.

And, this week, it has come to pass. As announced by Librarian of Congress Carla Hayden, there is now an official site to find CRS reports at crsreports.congress.gov. It appears that the available catalog is still limited, but they're hoping to expand backwards to add older reports to the system (a few quick test searches only shows fairly recent reports). But all new reports will be added to the database.

The result is a new public website for CRS reports based on the same search functionality that Congress uses – designed to be as user friendly as possible – that allows reports to be found by common keywords. We believe the site will be intuitive for the public to use and will also be easily updated with enhancements made to the congressional site in the future.

Moving forward, all new or updated reports will be added to the website as they are made available to Congress. The Library is also working to make available the back catalog of previously published reports as expeditiously as possible.

This is a big deal. The public pays over $100 million every year to have this research done, and all of it is in the public domain. Starting now, we can actually read most of it, and don't need to rely on leaks to find this useful, credible research.

Filed Under: congressional research service, crs, library of congress, public domain, research, think tank

How The EU May Be About To Kill The Public Domain: Copyright Filters Takedown Beethoven

from the ending-the-public-domain dept

Over in the EU Parliament, they're getting ready to vote yet again on the absolutely terrible Copyright Directive, which has serious problems for the future of the internet, including Article 13's mandatory censorship filters and Article 11's link tax. Regrading the mandatory filters, German music professor Ulrich Kaiser, has written about a a very disturbing experiment he ran on YouTube, in which he kept having public domain music he had uploaded for his students get taken down by ContentID copyright claims.

After exploring ways to teach his students Beethoven's music, and putting together a collection of public domain recordings, he encountered the following thanks to YouTube's filters:

The first video I uploaded to YouTube promoted the website where my digitized copies of public domain recordings are available to download. In this video, I explained my project, while examples of the music played in the background. Less than three minutes after uploading, I received a notification that there was a ContentID claim against my video. ContentID is a system, developed by YouTube, which checks user uploaded videos against databases of copyrighted content in order to curb copyright infringement. This system took millions of dollars to develop and is often pointed to as a working example of upload filters by rights holders and lawmakers who wish to make such technology mandatory for every website which hosts user content online. However, these claims ignore the widespread reports of its often flawed execution.

That inspired him to test this more thoroughly... and you'll absolutely guess what happened next:

I decided to open a different YouTube account “Labeltest” to share additional excerpts of copyright-free music. I quickly received ContentID notifications for copyright-free music by Bartok, Schubert, Puccini and Wagner. Again and again, YouTube told me that I was violating the copyright of these long-dead composers, despite all of my uploads existing in the public domain. I appealed each of these decisions, explaining that 1) the composers of these works had been dead for more than 70 years, 2) the recordings were first published before 1963, and 3) these takedown request did not provide justification in their property rights under the German Copyright Act.

I only received more notices, this time about a recording of Beethoven’s Symphony No.5, which was accompanied by the message: “Copyrighted content was found in your video. The claimant allows its content to be used in your YouTube video. However, advertisements may be displayed.” Once again, this was a mistaken notification. The recording was one by the Berlin Philharmonic under the direction of Lorin Maazel, which was released in 1961 and is therefore in the public domain. Seeking help, I emailed YouTube, but their reply, “[…] thank you for contacting Google Inc. Please note that due to the large number of enquiries, e-mails received at this e-mail address support-de@google.com cannot be read and acknowledged” was less than reassuring.

And, again, this is in the strongest situation for filters to test themsevles. Google has spent more resources and money on ContentID than on any other filter. It's been tested much more thoroughly than just about any other filter out there. And music is one of the easiest cases to match. And yet, it still got it all wrong. And it caused significant collateral damage:

I wish I could tell you that the ending to this tale was wholly happy. It is true that many of my contestations of these copyright violations were successful, and the videos were not taken down from YouTube. However, I intended to release all of my videos under a free license, so that they could be used in the future for others to educate and inform students about these beautiful works. Even in cases where my defense to the ContentID claims were successful, the videos were not reverted to this free license, making it much more difficult for others to use and share these digitized works in the way I originally had intended.

Now expand this out to other kinds of content, which aren't as easy to match. Or companies who don't have $60 million to spend on filters. Or where companies don't have the time to review every disputed takedown. And what do you end up with? A serious impact on the public domain (not to mention fair use, parody and more).

And here's the thing: mandatory filters are totally unnecessary. Most large platforms already have invested in ContentID-like systems. It's the smaller sites and the upstarts who can't afford such a thing. So all Article 13 will really do is lock in YouTube/Google as the dominant player. And maybe that's what the RIAA and their friends really want: they believe that as long as there's just one other big company they can sit across a table and demand cash from, that'll somehow cover up for the fact that it sold its members a bill of goods about the internet for the past couple of decades. But, it will do enormous harm to creativity and content creators in the long run.

Filed Under: article 13, automated filters, beethoven, contentid, copyright, eu, eu copyright directive, mandatory filters, public domain
Companies: google, youtube