Friend and colleague Wendy Seltzer has a new column in Craft Magazine about copyright. Copyright has been increasingly applied by crafters and craft-pattern companies to craft patterns, in “shrinkwrap” style licenses. I’m greatly pleased to see some attention to this issue! Thanks, Wendy!
The WSJ editorial page is not something I ordinarily frequent, but they recently wrote an editorial on the DMCA. Aside from a reflexive and simplistic “intellectual property is good so don’t bother me with nuance or details” attitude, this paragraph struck me:
Google claims “a legal safe harbor” from copyright infringement under the 1998 Digital Millennium Copyright Act, which allows Internet firms to provide a thumbnail of copyrighted material. The firm also asserts a right to reproduce and distribute intellectual property without permission as long as it promptly stops the trespass if the copyright owner objects. That’s like saying you have the legal right to hop over your neighbors’ fence and swim in their pool — unless they complain.
WSJ 2006/12/1 (it’s the editorial page so the person who actually penned this embarrassment doesn’t have to sign his or her name)
I realize that editorial pages don’t require fact-checking, but getting the law this wrong is embarrassing. Readers of this blog probably are very familiar with the DMCA, but a couple of quick pointers:
- The DMCA doesn’t “allow Internet firms to provide a thumbnail of copyrighted material.” I believe the hopelessly inept WSJ editor was probably thinking about the Kelly v. Arriba 9th Cir. decision, supported recently by the 2d Cir. decision in Dorling-Kindersley. Both of those interpreted fair use (17 USC 107) to include offering thumbnails for a different purpose.
- “… without permission as long as it promptly stops the trespass if the copyright owner objects.” Presumably here they’re talking about the DMCA notice-and-takedown provisions, 17 USC 512. Of course, these provisions don’t apply to original infringement — reproduction and distribution — but to the responsibility of ISPs and other intermediaries when their networks are used for reproduction and distribution. That is, at best, secondary infringement (contributing to or vicariously responsible for someone else’s infringement), and it’s really not at all clear that ISPs would be liable for it even in the absence of the safe harbor provisions. Which aren’t “claimed” by Google et al but ”given” to them by Congress.
Since they can’t be bothered to do even the barest minimum of fact checking, and don’t understand what they’re talking about, it’s hard to actually take them seriously. Are they this bad all the time?
Gigi Sohn of Public Knowledge probably very wisely didn’t bother correcting their extremely shoddy fact-checking but responded to the overall tenor of their arguments; the WSJ published their letter – and because the WSJ puts their content behind passwords, the full-text of the letter is available at PK’s blog by Alex Curtis.
questionable authority reviews a pro-‘intelligent design theory’ entry that describes a future history of the fabulous medical and scientific breakthroughs generated by ‘intelligent design theory’ and the abandonment of ‘Darwinism’. While the whole post is highly recommended, it was one of the commentors who really tickled my fancy. Responding to the future history’s assertion that ‘Darwinist’ scientists ignore ‘junk DNA’*, commentator Stephen Stralka adds:
It also occurs to me that no matter how much functionality we ultimately discover in junk DNA, none of it will be any better evidence for ID than what we currently know about DNA.
The kind of thing that would be evidence of design would be if the junk DNA turned out to contain stuff like copyright notices and license agreements.
Or copy protection. DRM-protected genomes that prevent unauthorized replications, derivative works, jumping genes & species hopping diseases? Or maybe when you have a baby, a rootkit installs itself on the parents’ reproductive organs, preventing them from further replications. I do indeed see a great future for ‘intelligent design theory’.
(Another commenter followed up:
Oh, man. “If you agree to the terms of this pregnancy, click Agree. Otherwise, click Abort.”
Except that he’s missing about 5 screens’ worth of finely printed legal verbiage about restrictions on the pregnancy and abortion process. Luckily Frontline has got it covered.)
* According to the ‘future history of intelligent design’, ‘Darwinian’ scientists don’t do research on ‘junk DNA’. really? in this future history, will my partner’s dissertation & ongoing postdoc work on various aspects of gene regulation turn out to have all just been a terrible and poorly-compensated decade-long dream?
The copyright notice in Lemony Snicket: The Unauthorized Autobiography (2002):
No part of this book may be used, reproduced, destroyed, tampered with, or eaten without written permission except in the case of brief, possibly coded quotations embodied in critical articles, reviews, and subpoenas. Allegedly printed in the United States of America. For information address HarperCollins Children’s Books, a division of HarperCollins Publishers, 1350 Avenue of the Americas, New York, NY 10019, although the people at this publishing house have no idea where the documents enclosed in this book came from. If you recognize yourself in any of the photographs or illustrations in this book you may find yourself in Very Frightening Danger and/or slightly embarrassed but there is nothing you can do about it. Please note that the author has been called a fraud, a criminal, a bestseller, a corpse, a fictional character, an unreliable narrator, an objective flaneur, an embattled gentleman, a magnetic field, an arsonist, and late for dinner by an odd number of dubious authorities. Send help at once. All rights reserved. Wouldn’t you rather read about ponies?
Thanks to the Third Circuit, I have a new word for the day: “aleatoric”. It means “characterized by chance or indeterminate elements” according to m-w.com. Hmm, I think. Like Jackon Pollock. Or Pollack.
So I went online to figure out whether it was in fact Pollock or Pollack, which I did simply by Googling “Jackson Pollack”. Not easy to resolve since of the first 6 entries that Google returned 2 of them list “Pollock” and 4 list “Pollack.” And the first entry listed “Pollock” and then said “Var: Jackson Pollack.”
But in looking at the very first entry, for Jackson Pollock Online, www.artcyclopedia.com/artists/pollock_jackson.html, I noticed that the text that Google excerpted was this copyright notice:
Note that the listings on this site are a unique compilation of information and are protected by copyright worldwide.
Curious, I went to the website. The actual page has this text down at the very bottom of the page, in small type, in the usual credit/disclaimer portion of a webpage. Why did Google choose to highlight this text? A mystery of the Google display algorithm that I’m not motivated to follow up on. Maybe because the text is bold. The copyright portion of the notice reads in full:
All images and text on this Jackson Pollock page are copyright 1999-2004 by John Malyon/Artcyclopedia, unless otherwise noted. Note that the listings on this site are a unique compilation of information and are protected by copyright worldwide.
The notice has 5 small thumbnail images of JP [problem solved] paintings. And otherwise the text is a list of paintings, organized alphabetically by collection (museums first followed by public art galleries). It’s unclear whether they actually employed any particular selectivity in listing the JP works or if they just listed those available and known to them in publicly accessible collections.
… Just one more example of copyright insanity. What are they protecting, their exceedingly thin or (IMO) nonexistent compilation copyright? The copyright in the thumbnail images? No, there’s basically very little here for them to actually copyright. But they are being reflexively protectionist. I’d be interested to know more social psychology so I could better understand what’s behind the flood of copyright notices around the world. … I do believe the effect of these notices is ultimately negative. A random person sees this notice and now may believe that there could be a copyright in this work. Now they’re afraid to copy the list of works, or do so only with a feeling of guilt. Geez. What a waste of everyone’s time and energy.
Reminds of the Simpson’s episode when Homer was inventing many things, and when he would make presentations of his drawings to his family, he protectively said, “Patent pending, patent pending, patent pending,” pointing his pointer in each family member’s face for emphasis. [Google sent me to the usabilityworks blog which lists this as Simpsons episode CABF05, airdate 2001-01-14.]