Category Archives: copyright

US copyright lobby madness

The US copyright lobby (as represented by the “International Intellectual Property Alliance”, a confusingly named consortium of US copyright lobbying groups) has just done a report on the failures of the rest of the world to properly protect its members’ intellectual property. We care, because it submits this report (solicited? unsolicited?) to the US Trade Rep who basically adopts it wholesale in its annual report of what to do next. (The US Trade Rep is the strong-arm of US policy, basically “encouraging” other countries to adopt legislation and policies that favor US interests. Contact USTR lists some relevant numbers and address.)

Michael Geist (a Canadian Internet and copyright law scholar) wrote a terrific analysis of the report. He does a beautiful job of contextualizing it within the US’ climate of copyright extremism.

# For instance, the report criticizes the rest of the world for not adopting the US version of the much-criticized and highly problematic anticircumvention provisions of the 1998 DMCA.

# Second, the report criticizes countries that seek to adopt some of the consumer-friendly provisions that US law still contains (e.g., fair use in Israel; time shifting in New Zealand; compulsory licensing regimes around the world).

# Third, the report criticizes countries that attempt to promote educational, privacy, and cultural initiatives, such as copyright exceptions for students in South Korea, Brazil and Canada; privacy protections for Greece; etc. The report criticizes countries that have failed to adopt the life+70 years copyright extension — an extension which even the US Register of Copyrights, MaryBeth Peters, acknowledged was probably a mistake.

Of particular interest to me, the report criticizes Italy, Greece, and Mexico for not implementing the US version of the Section 512 takedown procedure. Greece includes some privacy provisions, and Italy and Mexico haven’t done it yet at all. Just as well, because the hastily-enacted and poorly-thought-out provisions have created a lot of problems here in the US. See Heins Beckles 2005, Urban / Quilter 2006, and Quilter/Heins 2007.

Go read Michael Geist’s article.

a natural history of copying

David Conniff on “Happy Days” in Times Select (sigh) writes about the human tendency to imitate and synchronize:

Mirroring the people around us is also a way we communicate affiliation and affinity. Two people in a friendly conversation often match each other’s body language down to the crossing of their ankles or the waggling of their feet. When it happens unconsciously, it feels good for both partners, as a way of saying, “I’m with you.” Studies suggest that we like a conversational partner more if the other person has subtly mimicked us. Mirroring gestures and movements also seems to help people work better together. They find a shared rhythm and gradually coalesce into a team, so the parts of a project get handed on seamlessly, as if by magic. One person starts a sentence and the other person finishes it. One comes up with a new product idea, and the other nudges it in a new direction.

Monkey see, monkey do. My friend and colleague Howard Besser often talks about how humans learn by copying: children, apprentices, writers, lawyers.

No wonder copyright law is in such a spasm.

WSJ editorial page embarrassment

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:

  1. 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.
  2. “… 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.

we knew it would come up eventually

A recent court denied a motion to preliminarily enjoin distribution of copyrighted dildos, noting that dildos are useful articles, and separating the copyrightable expression from the unprotectible ideas would be … difficult. Bill Patry excerpted some of the best parts of the decision. Conwest Resources, Inc. v. Playtime Novelties, 2006 WL 3346226 (N.D. Cal. 2006).

It used to be that my most exciting legal props quest was to find a jeweled bee pin.

DMCA exemptions issued

The Library of Congress / Copyright Office issued its third set of DMCA rulemaking exemptions, just before taking off for the holidays. I was eagerly anticipating the rulemaking (even more eagerly than usual) after David Carson, General Counsel at the Copyright Office, kept dropping hints about the what we could all look forward to at a panel at Fordham last Friday. (The ever witty Hugh Hansen said it was the closest he’s seen to a legal strip tease.)

The rulemaking is more generous than it has been in past years (though still not as generous as I would be).

To sum up & paraphrase:

“Persons making noninfringing uses of the following six classes of works will not be subject to the prohibition against circumventing access controls (17 U.S.C. § 1201(a)(1)) during the next three years.” (The exemptions go into effect starting Monday 11/27 & expiring Oct. 27, 2009.)

  1. Film professors. (new) Film professors etc. can circumvent CSS on DVDs for teaching. (Limited to works in the school collection.) (New exemption)
  2. Preserving old video games. Libraries & archives can preserve computer programs & video games for obsolete platforms & medias. (This kind of exemption shows the weirdness of the 3-year expiration for each of these rulemakings. Libraries & archives had better do a lot of preservation in the next 3 years because who knows if we’ll get it again in 2009! This is a carry-over exemption, but every 3 years librarians have to make the case again.)
  3. Malfunctioning dongles. You, me, and anyone else can disable malfunctioning access dongles on computer programs if the dongles are obsolete. (Another carry-over.)
  4. EBook blind readers. Blind ebook read-aloud exemption continues from past exemptions.
  5. Cell phone switching. (new) If you switch cell phone companies you can disable proprietary technologies to keep your cell phone. (This is a new exemption.)
  6. Sony rootkits. (new) Sony rootkits and other CD copy protections can be disabled to test, investigate, or correct security flaws or vulnerabilities. (This is a new exemption, and I’m glad it’s here, but, honestly, we got more bang for the buck out of the furious glare of news media & public outrage & a little state’s attorney general scrutiny.)

The Librarian of Congress carefully reminded us that “[t]his is not a broad evaluation of the successes or failures of the DMCA.” Also, that the rulemaking is just for access-control exemptions, not copy-control exemptions, nor does the rulemaking craft exemptions for the prohibitions on making / distributing circumvention tools.

There’s a lot more detail in the 88 page “Recommendation of the Register of Copyrights”, which is where the juicy comments on everybody else’s proposed recommendations will be. What a fun txgiving read! O thank you Copyright Office — this is much better than a football game. (I’m not being sarcastic.)

Fair Use Revisited talk in DC, Sept. 21

Judge Alex Kozinski, renowned for his copyright and trademark jurisprudence, will be delivering a lecture on “Fair Use Revisited” Thursday, Sept. 21, 2006, at Washington College of Law, American University, Room 603. Judge Kozinski is always entertaining as well as enlightening, so this is an event not to be missed. More information at .

LA Times thinks Hollywood is going too far

Is it a sign when the LA Times thinks Hollywood is going too far? God, I hope so.

In today’s editorial, the LAT says:

[editorial summary: Copyright infringement is bad, intellectual property is good, yadda yadda.] But what the entertainment industry is seeking in this year’s proposals isn’t merely protection from piracy; it’s after increased leverage to protect its business models.

That’s why lawmakers must bear in mind the balance needed between copyright holders’ interests and the public’s, something Congress has not done well lately. In 1998, it gave copyright holders broad power to block legitimate uses of works, even those in the public domain, through the use of electronic locks that impede copying of digital products. And that same year, it prolonged the public domain’s starvation diet by extending copyrights an additional 20 years, to 70 years beyond the death of the creator.

As they weigh the entertainment industry’s pleas, lawmakers shouldn’t assume all consumers are bootleggers and every digital device is a hand grenade aimed at Hollywood.

I really ought to read the LAT more often, because this seems pretty sensible.

New Orleans & ALA

I just got back from ALA for a panel on RFID (“Tiny Trackers”). As usual, ALA was chock-full of stimulating folks and ideas. A few notes follow, but first a report about New Orleans.

New Orleanians were grateful for ALA’s presence. ALA was the first large conference to keep its commitment to New Orleans since Katrina. The tourist and business sections of the city feel — well, a little empty, a little recessional. More closed & out of business signs than usual. In the French Quarter, the local businesses are mostly open — but nearby on the Riverwalk shopping mall, many of the corporate-owned businesses are still closed. Make what you will of that. But walk just a bit beyond the French Quarter into the 8th and 9th Wards, and things are quite different. I walked over that way on Sunday after my talk, although I didn’t make it much past the Vieux Carré. (It’s hot in New Orleans!) But even as far as I went, it’s clear that the recovery is only partial. And the reports from locals, and ALA folks who biked or bussed around in other districts, are depressing. The country has moved on and forgotten about New Orleans — a city that is one of this country’s greatest treasures. As my partner said, it’s like the media is Vamp Willow: “Bored now.”

….

The Lyman Ray Patterson Award went to Prue Adler, well-deserved. Chris Anderson’s “The Long Tail” was, while largely a regurgitation of his schtick, very good because his schtick is very good. (As long as he stuck to his schtick, that is. A number of folks quibbled with his naive market-centric and tech-utopian view of net neutrality.) The Free Speech Buffet was great, with an Emergency Zine Reading:

* Elaine Harger, in response to a censorship attempt, gave the would-be censor a button that said: “Use your brain: the filter you were born with.”

* Amusing reading of overblown prose from romance and other novels from Alycia Sellie. (I list this for its copyright relevance.)

* Ammi Emergency reading from a zine about post-Katrina looting of supermarket. “After the storm, New Orleans was even more New Orleans.” Community looters: One “incompetent neighbor” emerged with a broken bag of box wine and a rotten ham, and when it was pointed out, was upset & said “I’m no good at looting!” She was promptly consoled by another man who said, “You’re doing just fine honey.”

copyright misuse in the 8th Circuit

Out of the thickets of antitrust doctrine (“Noerr-Pennington”, anyone?) comes a District Court decision concluding that “‘misuse of copyright’ is a viable defense to a copyright infringement action”, and concluding similarly to the unclean hands defense. Hitherto the 8th Circuit had punted on copyright misuse, finding it not applicable in the particular cases it reviewed, while declining to state whether the defense was theoretically available or not. I expect the plaintiff (a racing association claiming infringement of its rules) will appeal.

* Int’l Motor Contest Assn, Inc. v. Staley, — F.Supp.2d —-, 2006 WL 1667889 (D. Iowa 2006 June 19). (Mark W. Bennett, J.)

* Bill Patry’s analysis (7/5)

Fair Use Network website

The first stage of our new fair use project is online — the Fair Use Network website, at http://fairusenetwork.org/ .

At present, we’re focusing on consumer resources, and version 1.0 includes resources for recipients of copyright cease-and-desist letters or DMCA § 512 takedown notices. Similar resources for trademark will be coming online later. Version 2.0 will include more resources oriented toward “gatekeepers” and users of copyrighted & trademarked material, before they get a C&D. And Version 3.0 will include more network resources for attorneys serving these clients.

comedies & tragedies of fair use

5/3 update: variant version of this post (an older version of the post but marked-up with hyperlinks) + other blog commentary from Joy Garnett @ newsgrist … liveblogging the meeting and this session
@ iptablog —

The Comedies of Fair Use meeting wrapped up a few hours ago. Among the best presentations were the art panel Saturday morning, in which Joy Garnett and Susan Meiselas each discussed their side of the incident that became known as JoyWar. (There were other panelists in this session too; for instance, Art Spiegelman, who was hilarious.)

“JoyWar” began when Joy Garnett appropriated a photograph she found on the Internet, and repainted it. Shortly after exhibiting it, she got a cease-and-desist letter from the photographer, Susan Meiselas. Joy’s art rapidly became a cause celebre among Internet artists and activists, who reposted Joy’s art and remixed it with many new works.

Susan and Joy had never met before the conference, but they both agreed to come and tell their story in a joint session.

Joy explained that she sought images on the Internet of people exhibiting strong emotions; she found the images, and then set them aside for a time, specifically seeking to decontextualize the images so she could later focus solely on their aesthetics. She then repainted the photo, and exhibited it as part of an exhibition called “Riot”. Mieselas’ photograph was perfect for Joy’s intended project: it showed a young man about to throw a molotov cocktail, an expression of intensity on his face.

Susan introduced herself by explaining that her goals as a photographer were precisely the opposite of Joy’s: That it was critical to her to contextualize the photograph, to embed the image in the subject, the historical and political moment in time. The photo, she explained, was of a young man on July 16, 1979, the night that Somoza was finally driven out of Nicaragua, and the Sandinistan revolution triumphed. The photograph of this young man in fact became emblematic of the entire movement, of the revolution itself, and was stenciled and appropriated by all kinds of people, with no objections (or permission) by Susan. Susan felt a strong social contract with the subjects of her photographs, and went back years later to contact them. This young man, it turned out, was still deeply committed to the movement.

The striking thing was the obvious pain that both women felt at the conflict. Though their artistic goals and methods clashed, both Susan and Joy were thoughtful and sincere. Susan, for instance, really seemed to feel that she was possibly “old-fashioned”; that she just didn’t get the new methods of appropriation. Joy, for her part, seemed to really appreciate Susan’s goals and interests; but stood firmly on her own principles. It really seemed in some respects a tragic conflict of interests, because, yes, Susan had real interests at stake. You couldn’t but respect Susan’s interests and the respect that she herself had for the subject of her work. I’m certain it took tremendous courage for Joy and Susan to come together in a public forum, after such a well-publicized conflict. And it’s a testament in particular to Susan’s courage and honesty that she presented her beliefs and reasons so articulately and passionately in the face of a potentially hostile audience.

The problem is that the interests Susan was seeking to uphold, through the tool of copyright, are not traditional copyright interests. Susan wasn’t particularly interested solely (or possibly at all) in trying to protect her licensing revenue. She was interested, rather, in protecting her right to be custodian of the image: an interest that isn’t even captured in moral rights as defined in Europe.

At the end of the day, Hank Shocklee, of Public Enemy, gave a “times they are a’changing” / “to the barricades, comrades” speech: He basically said that the old models of control are dead. It was a great moment, and I hope it’s true. There’s no question that we are paying too high a cost right now from excessive control over information. We are losing works, we are losing consumer rights, we are losing new forms of artistic expression.

But with every change, there are costs. Those who control information sometimes do it for a good reason. The hypertrophic growth of copyright law (as Jamie Boyle put it) has harmed the essential purpose of copyright law, the encouragement of creativity. But that same hypertrophic, harmful growth, nevertheless allowed Susan to pursue other interests not well protected in any other way: privacy, dignity, trust, political context and memory. I hope we find other ways — human, person-to-person ways — to protect those interests; they were never well served by copyright anyway. But it’s important to count the costs as well as the benefits for every change. I’m incredibly grateful I had the opportunity to see Susan and Joy speaking together so that I could see and hear the messy human values and reasons behind the legal conflict.

consumer copyright & access to knowledge report

I’m working my way through a new report from Consumers International on copyright’s impact on access to knowledge in eleven different developing nations. The study reviews the statutes and finds that in almost all ways, developing nations have afforded more copyright protections than required by international treaties, to the detriment of public access to information.

ip in every-day language

In an article about the post-Brokeback cowboy fashion revival [NYT 2006/3/9], I noticed this paragraph:

When you unravel the history of cowboys and their clothes, the 150-year tug of war over who’s a cowboy and who’s a dude, as department-store cowboys are still derisively called, gets tangled. The Wild West may be the place where branding was born, but if the last 150 years have made anything clear, it is that no one has staked a clear copyright claim on cowboy style.

I’m not sure what it says about our culture that IP concepts are simultaneously so ubiquitous and so mangled.

jon stewart lambasts piracy

on the oscars, just now, jon stewart on movie piracy (i paraphrase):

Let’s face facts. It hasn’t been the best year for Hollywood.

The box office was was a little bit down and piracy continues to be a problem. If there is anyone out there involved in illegal movie piracy, don’t do it.

Take a good look at these people. These are the people you are stealing from.

Look at them! Face what you have done!

There are women here who can barely afford enough gown to cover their breasts.

Siva has a link to the video and also a better transcript (which I copied).

update

… he also made a crack about downloading music, later in the evening, introducing a musician:

Some of you won’t know who this is, but go upstairs to where your kid is illegally downloading music, and ask them, and they’ll tell you.

I wasn’t really focusing, so I may have missed more such moments. Have copyright issues come up at the Oscars before, I wonder? I’ve only seen the awards maybe 3 times out of the last 10 years or so. Have I been missing a huge goldmine of cultural references to the p2p filesharing wars?

war on us

oh happy day! The war on us is progressing nicely and soon we will have won the war against ourselves. Phones are being tapped willy-nilly and surely some of them will generate some useful information to allow us to be held without trial or access to the courts indefinitely under the president’s powers. The government is cracking down on those enemies of the state, video game retailers.

fafblog: there’s no war in warrant