We've seen a few ridiculous cases whereby local governments claim copyright on a law, but it's still stunning to see what's going on in Liberia. Tom sends in the news that no one knows what the law covers in Liberia, because one man, leading a small group of lawyers, claims to hold the copyright on the laws of the country and won't share them unless people (or, rather, the government of Liberia) is willing to pay. Oh, and did we mention that the US government paid for some of this?
The story is a bit convoluted, but apparently, Liberia hasn't really had a full copy of its laws, as they were mixed and matched in "incomplete sets" throughout different libraries. A professor at Cornell had begun a (free) project to compile the country's laws, but after he died, a group of lawyers in Liberia took over the project -- and were given $400,000 by the US Justice Department. The lawyers then "numbered, bound, and indexed" all of the recent laws, and claim that because of that, they now own the copyright on it.
While perhaps copyright law is different in Liberia, most places have rejected "sweat of the brow" arguments for copyright. If you didn't create the actual content, you're not supposed to get the copyright. You don't get a copyright just for compiling the work of others without adding anything new. If this lawyer wanted to get paid for the work, he should have negotiated that upfront. Instead, he's holding the country's laws hostage, and asking for $150,000 to $360,000 to turn them over to the government.
What's really amazing is that this guy is currently serving as Liberia's justice minister. The work he did on the laws happened before that, and he claims that he'd give up the laws for free, but that the other lawyers he worked with will not.
Perhaps Liberia should just start from scratch and create all new laws, wiping out the value of these particular locked up laws.
Dark Helmet alerts us to the news that our good friend Lily Allen is back in the news discussing file sharing again. Tragically, it does not appear that she's used her "time off" to better understand copyright issues very much. Unlike nearly everyone else who complains about copyright infringement, she's apparently "all for" infringing on her copyrights, just so long as you pay someone -- even if it's the guy on the street selling the counterfeit CDs. Seriously:
"If someone comes up with a burnt copy of my CD and offers it to you for £4 I haven't a problem with that as long as the person buying it places some kind of value on my music."
Yes, so while some musicians have said they're fine with non-commercial file sharing, but are against anyone selling their unauthorized works, Ms. Allen seems to have taken the opposite approach. Counterfeit all you want, just as long as you profit from it. Yeah. Someone should explain to her the difference between price and value, and also the benefits of word of mouth marketing. But, it doesn't seem like she's much interested in actually understanding this stuff, so if you want to help her understand, maybe go set up a shop selling burned copies of her CDs, and see what happens.
Of course, if we take this seriously, it shows how little she's thought this through. Her earlier complaint was that when people file share, they don't provide money back to the artists and the labels. Of course, when counterfeiters are selling on the street, the same thing is true, but suddenly it's okay? At what point does the world realize that Ms. Allen doesn't know what she's talking about?
Sherwin Siy (one of the few people who actually was allowed to glance briefly at parts of the proposed ACTA treaty, though under strict NDA) has written about yet another letter sent by the entertainment industry to the government in support of ACTA. This letter includes pretty much everyone who benefits from abusing copyright laws and is afraid of the internet:
Advertising Photographers of America
American Association of Independent Music (A2IM)
American Federation of Television and Radio Artists (AFTRA)
American Society of Composers, Authors and Publishers (ASCAP)
American Society of Media Photographers, Inc. (ASMP)
Association of American Publishers (AAP)
Broadcast Music, Inc (BMI)
Commercial Photographers International
Directors Guild of America (DGA)
Evidence Photographers International Council
Independent Film and Television Alliance (IFTA)
International Alliance of Theatrical Stage Employees (IATSE)
Motion Picture Association of America, Inc. (MPAA)
National Music Publishers Association (NMPA)
NBC Universal
News Corporation
Picture Archive Council of America (PACA)
Professional Photographers of America (PPA)
Recording Industry Association of America (RIAA)
Reed Elsevier Inc.
Society of Sport & Event Photographers
Software & Information Industry Association (SIIA)
Stock Artists Alliance
Student Photographic Society
The Advertising Photographers of America
The Walt Disney Company
Time Warner, Inc.
Universal Music Group
Viacom Inc.
Warner Music Group
Funny... isn't it, that all these companies and industry groups are supporting a deal that no one's seen yet? Oh wait... that's because many of them have seen it and actually have had a hand in creating it. But what's really damning is that no where in the letter do they explain why this is actually needed or how it will do anything valuable. Instead, it's a pure faith-based letter saying "if you pass this secret treaty, good things will happen." I don't know about you, but generally, I prefer there to be actual proof and evidence that restricting consumer rights around the world actually leads to some sort of real benefit.
Tellingly, they don't respond to any of the points we raised earlier. This is not a treaty to help people or the economy. It's a deal to try to sneak through a system for propping up an obsolete business model by companies who don't want to adapt.
Danny Sullivan does a great job calling out the hypocrisy of the Associated Press yet again. The organization, which has taken a very maximalist position on copyright, where fair use gets mostly ignored, apparently had no problem scanning Sarah Palin's entire book into a computer so that reporters could search it. Of course, this is no different than what Google is doing with its book scanning program (which, again, I still believe is a clear case of fair use). Yet, since the AP seems to take such a limited view on fair use (and has a habit of accusing Google of "stealing" content), it's amusing that it's now trying to defend its actions by claiming that it was legal because it was for the sake of journalism, and the scan wasn't for public consumption. Except, of course, Google's book scanning isn't for "public consumption" of the entire work either, but so people can do a search to find the relevant tidbit of info within the book. The AP's statement on the matter is laughable:
"The book, purchased several days ahead of its on-sale date by the AP, was scanned after the first spot stories moved on the wire from New York so that staffers in bureaus in Washington and Alaska with knowledge of various parts of Gov. Palin's life and political career could read those relevant sections the next day."
Yes, you can understand why they did it, and even why it seems reasonable. But that doesn't change the fact that it appears the AP made an unauthorized copy of the book, in violation of its own interpretation of copyright law. Funny how the law seems oh so different when it limits what you can do, than when it's about limiting what your competitors can do...
We've mentioned the ongoing lawsuit against ISP iiNet in Australia a few times. Basically, the movie studios are pissed off at iiNet because it didn't do much in response to letters that were sent concerning IP addresses of those that the studios believed were sharing unauthorized works. As iiNet noted, however, it didn't see why it was involved in any of this:
They send us a list of IP addresses and say 'this IP address was involved in a breach on this date'. We look at that say 'well what do you want us to do with this? We can't release the person's details to you on the basis of an allegation and we can't go and kick the customer off on the basis of an allegation from someone else'. So we say 'you are alleging the person has broken the law; we're passing it to the police. Let them deal with it'.
The trial has been going on recently, and while I haven't been following the details that closely (figure it's worth waiting for the verdict), there was one interesting tidbit. As the company had suggested earlier, it's arguing that sharing a file via BitTorrent is arguably not copyright infringement at all. That's because of the way BitTorrent works, in breaking up any file into tiny components and sharing the individual pieces. A key element of copyright law is looking at how much of the content is shared. Down in Australia, they have a "fair dealing" exception to copyright law that appears to allow for copying small portions of a work, and some precedent of short video clips not being considered infringing.
While I would be quite surprised if this argument worked (even if it may be technically correct, it's so rare that judges pay attention to the technical aspects when it comes to copyright), I'm a bit surprised we haven't seen this argued elsewhere as well. Of course, if it does actually work, it will only turn the focus back towards the question of whether or not "making available" violates the distribution right of copyright, since that would cover what BitTorrent users were doing, if they offered up any unauthorized content (even if they actually shared only a tiny fraction).
Just as the leaks predicted, the UK government has offered up its Digital Economy Bill, which includes massive changes to copyright law, including the power of the government to effectively change the law at will with little to no oversight. Basically, it would let the Business Secretary, Lord Mandelson, change copyright law through secondary legislation, which requires no Parliamentary approval. As people are noting, Mandelson has had to resign from elected positions twice in the past in disgrace, and is now in an unelected position. And he's the guy who gets to change copyright law at will? That does not seem right. On top of that, the bill doesn't even specify "three" strikes for users. Instead, it requires ISPs to notify users with warnings -- and to notify copyright holders that they did notify users -- and if file sharing is not reduced by 70% in a year (with no indication of how this is measured), then the government will tell ISPs to start kicking people off the internet.
Furthermore, Minister for Digital Britain Stephen Timms, who introduced the new bill, claimed that 99% of ISPs are "broadly supportive" of the bill. That's funny because BT and TalkTalk -- two of the largest ISPs in the UK -- have loudly complained about the plans (with TalkTalk threatening to sue, and BT saying that this solution is "not the way forward") and the ISP Association, which represents ISPs in the UK has loudly slammed the bill as unworkable and backwards looking:
"ISPA members are extremely concerned that the bill, far from strengthening the nation's communications infrastructure, will penalise the success of the internet industry and undermine the backbone of the digital economy," the industry group said.
Nicholas Lansman, ISPA's general secretary, said in the statement that the government's proposals were "being fast-tracked... and will do little to address the underlying problem".
"Rather than focusing blindly on enforcement, the government should be asking rights holders to reform the licensing framework so that legal content can be distributed online to consumers in a way that they are clearly demanding," Lansman said.
So, where exactly are the 99% who are supportive of the bill? Or is that RIAA/IFPI/BPI math?
Over the last few weeks people who are actually concerned about individual rights have done a decent job sounding the alarm about the problems with what little we've seen of the ACTA negotiations. In the last week or so, those who work for the entertainment industry have suddenly started scrambling to respond, after realizing that more and more people are starting to pay attention and to worry about ACTA. However, it's been pretty funny to watch the desperate attempts by industry lawyers to try to paint this all as much ado about nothing (with gratuitous swipes at those of us who have called attention to what's going on).
One of the points they make is to say that the "secrecy" is no big deal, because it's "normal" for such negotiations to happen this way. This was what the USTR stated earlier this year when the question was raised, but unfortunately, the facts (and common sense) simply don't support that claim at all. If you look at the transparency level on many other international agreements, including well known ones concerning WTO, WIPO, WHO, UNCITRAL, UNIDROIT, UNCTAD, OECD, Hague Conference on Private International Law and many others, you see that they are significantly more transparent and/or have clear procedures in place for concerned parties to take part in the discussions. That is not the case with ACTA.
A second point they make is that if the end result is really bad, countries can simply decide not to sign it and not to participate. Yes, stop laughing. It's as if they think that we're all idiots who haven't seen how lobbyists have historically relied on the line "but we must live up to our international obligations" to push through all sorts of laws the public does not support.
A third point raised is that this isn't a "treaty" but a "sole executive agreement," so we shouldn't worry since it can't change the law. Except, by categorizing it as such, it's actually a loophole that could potentially take Congress out of the process of reviewing or approving anything that's in the agreement, and then just wait for the "but we must live up to our international obligations" to start pouring out of lobbyists and industry lawyers' mouths.
A fourth point of attack is that some of the descriptions of what's being discussed are inaccurate. Well that's funny since a big part of the problem is that we're not even being shown what's being discussed. So, yes, as we've been clear, this is an ongoing negotiation, and the final results may differ from what bits and pieces have been leaked. But, what is leaked has suggested that some very, very bad things are at least on the table, and making that clear and opening up the discussion is important, no matter how much the lawyers don't want anyone interfering. Separately, as you would expect, some of the language used to date in the leaked reports suggests the usual legal games are being played, so that when people point to something and say that opens us up to a bad thing, the lawyers can say "oh, that's no different than what we have already." Just like the RIAA did back when they wiped out musicians rights to reclaim their music (thankfully, only temporarily). But if you actually understand the details, you know that the subtle language choices are all chosen very carefully to drive future legislation. You can see this by simply monitoring what's happening in South Korea now, since that's what the new agreement is supposedly "modeled" on. And, it's not pretty. Various user-generated content sites are severely limiting what users can do, to the point that they're barely recognizable as UGC sites any more. Liability pointed at service providers are scaring them into massive limitations. That's not the sort of world most of us want to live in.
Finally, the ACTA supporters claim that because the administration showed a very small group of consumer rights folks, such as Public Knowledge, a draft of the document, that consumer groups are "a part of the process." That doesn't take into account the level of access. Whereby industry lobbyists had a large hand in drafting ideas and suggestions for parts of the legislation, a Public Knowledge representative was involved on "very short notice" in an initial hour-long meeting whereby they were allowed to look at the text, but not copy it, and then a further short discussion about a revised copy -- but the process included NDAs that prevent much discussion about what was seen. That's not serious involvement.
Finally, as I was writing this, Jamie Love pointed out that the MPAA has sent a letter in favor of ACTA, which is chock full of laughter inducing falsehoods (such as claiming the entire motion picture industry is at risk, even as it's having its best year ever). But the most ridiculous is this:
"Outcries on the lack of transparency in the ACTA negotiations are distraction."
Yes, that's right, making sure that the public knows what the hell its government is signing up for is a "distraction." Could the MPAA's lawyers be any more obvious in brushing off the concerns of the public than by calling it "a distraction." To the MPAA this is all about propping up its business model and stopping competition from online sources. The public doesn't matter. As Jamie Love notes, "transparency isn't a 'distraction.' it is an obligation of governments, to those it wants to govern."
So, yes, perhaps some of the discussion has suggested things that will go beyond what's actually in the document, but it's hilarious to see industry lawyers suggest that those concerned about our rights are "creating a moral panic" when the only reason there's concern at all is because the public is not even allowed to see what's being discussed. Want to end the rampant speculation? Release the documents and let the public take part in the process. The MPAA's letter and the sudden whining from industry lawyers shows what this really is: yet another attempt by one particular industry that refuses to adapt to a changing marketplace, looking to governments to prop up their existing business model at the expense of innovation, consumer rights and upstart competitors.
from the ain't-no-such-thing-as-a-public-domain dept
Looks like the latest battle over copyright extension is about to take place in Japan, where the new prime minister, Yukio Hatoyama, has vowed to extend certain copyrights. Specifically, he says that posthumous copyrights for compositions should last 70 years, rather than 50. This makes no sense, no matter what basis you judge copyright on. Copyright is supposed to serve a simple purpose: to encourage the creation of new works. It never makes sense to extend copyright on existing works, because those works were already created. In other words, the social "bargain" that was offered in terms of the limited times of protection available were clearly sufficient. But, it's making a pure mockery of the law to specifically single out posthumous copyright protection to be extended because, as far as I know, the dead no longer have any incentives to create new content, no matter how long the copyrights on their old content lasts. The only explanation for doing so is to create a special welfare program for songwriters and composers. But, if that's the case, let's make it clear this is a welfare system, rather than anything to do with copyright.
Brendan writes "Chapters/Indigo, the dominant book retailer in Canada, just recently launched their eBook store, thinly disguised as an independent 3rd party called ShortCovers. Both companies are children of the parent company Indigo Books & Music Inc.
The fact that they have launched an eBook program is not a problem. It's great, in fact. I'd like to see more action in this space, and anything to help people read more is a step in the right direction. The problem I have is with how they've done it.
When announcing the service on Monday, the company trumpeted loudly the offer of "FREE eBook downloads!" in a mass email and on the main Chapters page. Can you guess what all the eBooks offered for free have in common? That's right, they're almost all public domain works. They do list the publisher as "Gutenberg" for all the PD books, but do they explain what that means? Do they inform the user that these are public domain works? Do they include a link to Gutenberg.org, where any user can download these books in plain texts to use however they want? No, of course not.
Instead, they wrap the books up in their tight little DRM package. Each page (according to their idea of a page) loads painfully in a flash frame and within the text of the book is non-selectable. And most are not available as downloads (as they are on Gutenberg).
"All Rights Reserved. You are free to make one (1) copy of this work for non-commercial purposes only, provided you abide by the following:
* For any reuse or distribution, you must make clear to others the license terms of this work. The best way to do this is with a link to this web page.
* Any of the above conditions can be waived if you get permission from the copyright holder.
* Nothing in this license impairs or restricts the author's moral rights."
I can make one (1) copy? Wow! I better use it carefully."
As pretty much everyone who reads Techdirt has been submitting today, Lord Peter Mandelson over in the UK -- the guy who just discovered copyright law after a resort vacation dinner with entertainment industry mogul David Geffen -- wants to go even further in changing copyright law against consumers' rights. We already know that he was the major force behind getting the UK to move forward with a plan to kick file sharers off the internet based on a "three strikes" plan that involves accusations, not convictions. This was despite a study by the government which had already concluded that three strikes was a bad idea.
However, the latest plan seems even more ridiculous. Not only would it include a new offense for those who download unauthorized material, it would allow the government to give powers to "any person as may be specified" to do whatever is necessary to try to stop online infringement. In other words, it would allow the government to basically deputize anyone they wanted (such as record labels...) with near complete power and little oversight to do whatever they thought necessary to fight online infringement. And this includes changing copyright law at will through "secondary legislation" that involves no Parliamentary oversight or debate. Talk about a broad, sweeping and totally ridiculous change to copyright law.
Part of the reasoning, supposedly, is to be able to force online digital lockers like YouSendIt, which are quite useful for legally sharing all sorts of things, to get rid of privacy, so that any infringing works sent via those tools can be revealed. The whole thing is an incredible overreach of power, well beyond anything that is necessary. Mandelson doesn't even hide the fact that this is done purely in support of copyright holders and against consumers' rights:
"These can be used entirely legitimately, but recently rights holders have pointed to them as being used for illegal use,"
Because if rights holders don't like it, it must be stopped? He admits in the letter that consumer groups will oppose this proposal, but he doesn't seem concerned. Consumers, after all, don't take him out to dinner at expensive resorts.
It's been many years since we first wrote about how stores like Walmart were dealing with ridiculous copyright laws by telling employees to simply not allow the printing of "professional-looking" photos, just in case they were covered by someone else's copyright. Last year, a story popped up about a Walmart employee not letting a family print their own old family photos for this reason. It looks like we've got yet another such story. greenbird was the first of a few of you to send in this story about Walmart (yet again) not allowing the printing of family photos (this time for a funeral, which makes it that much more tragic), with copyright used as the reason. Once again, the employee made some dumb statements, such as saying "copyright is forever."
But, just like last time, I have to say that we shouldn't blame the Walmart employee, who is just trying to protect her job, and lives in a world where copyright maximalists constantly push this sort of message. It's not her fault, it's the fault of current copyright law, which makes such things seems reasonable, and the ongoing effort by lobbyists and politicians to only push copyright law further in that direction.
We've seen recently how some companies have turned copyright into something that certainly approximates a tool for extortion. Rather than threatening to break up your store with a baseball bat, they threaten to sue you if you don't pay them for infringing on their copyrights. Even in the cases where the copyright has been infringed, this whole process seems incredibly sleazy and underhanded -- and it's even worse when it's done against those who are clearly "accidental" or "unaware" infringers. Or you can take it even further: using this method to demand a non-negotiable payment from a church.
Reader Sam Cook writes in to let us know how a woman named Linda Amstutz is going around threatening pretty much anyone who posts her essay/poem called "If my body were a car." It's apparently one of those essays that gets regularly passed around the internet -- often without attribution. While you can understand why the author might get a bit upset about it getting passed around without attribution, it appears that Amstutz has taken it to another level. She could alert those who are posting it with the evidence that she's the author and ask, nicely, for proper attribution. She could also then use that fame and celebrity to get other commissioned writing projects, or maybe a book.
But no. She just sends them bills.
She (or, rather, her "literary agent" Mary Taylor Smith) sends nasty letters to people demanding immediate payment of $750, significantly more than anyone would ever pay for such reprint rights -- using the fact that statutory copyright infringement violations have a $750/infringement starting point (which, we already know is ridiculous). Of course, Taylor Smith never seems to suggest that anyone might have a fair use exemption. She just sends the letter and an invoice demanding payment.
A couple years ago, the well-known author Orson Scott Card found out about Amstutz and Taylor Smith's effort to abuse copyright law, and wrote up a blog post that pretty accurately described the picture. He notes that those who are posting the essay are almost certainly infringing on the copyright, but that's no excuse for Amstutz's actions, whom he refers to as "a moderately talented but extremely greedy, litigious, and self-righteous author:"
Now, her essay was originally published in Ozark Senior Living magazine. You can bet that she did not receive $750 for first publication. She may not have been paid at all.
Furthermore, $750 is a ridiculously high price for reprint rights for essays. I have stories reprinted all the time -- sometimes award-winning stories twenty times the length of "If My Body Were a Car," and for which I was originally paid many times $750. But the reprint rights usually go for $300 or less, and that's fair.
Besides the money, you see, I get to have that story out there collecting new readers for me...
The web is full of people who don't understand that websites are publications. Nobody gave them a course in copyright law before they put stuff up online. Most of them are decent folks who, as soon as someone tells them they're doing something wrong, will immediately correct their error.
But Amstutz is not interested in understanding human failings. Instead, she has seized upon a means of terrifying people into paying her ridiculous amounts of money.
It's as if you went into a store, inadvertently broke a vase worth $75, only to find that the store manager is going to make you pay $750 on the spot, or else you'll be hauled off to jail for vandalism and fined $30,000.
Yep. $30,000. Because that's what Mary Taylor Smith, Amstutz's agent, misleadingly tells you you'll have to pay. Here's her exact language: "The minimum damages for copyright infringement in a court of law is $750 and is punishable up to $30,000, plus attorney fees and court costs."
Yes, but that $30,000 is a maximum. There is zero chance that a rational court would charge a mom-and-pop non-profit website anywhere near that amount for infringing the copyright of a piece of writing that probably earned $100 or less on first publication. Especially when they took the essay down the moment they realized it was a copyright infringement.
Amstutz also has a rather obnoxious webpage up about this topic, saying that she's building a list of all the people who refused to pay and will soon sue them all (at which point she'll also "rescind" the invoice for $750, and try to get much more in court. She also has a "lesson" in copyright which gets a lot of the details wrong (she calls infringing stealing, makes no mention of fair use at all, and says you can never use someone else's words without permission, etc.)
Card points out that this does, indeed, feel like extortion, even if it is infringement:
Amstutz brags about just how much money she intends to extort from anyone who trips over her essay.
Because that's what it seems like to me: extortion. Yes, republishing her essay is an infringement of copyright. But most people who do it are ignorant of what they're doing. Amstutz preys on these people, hovering to see who falls into the trap, and then threatening them and bullying them to pay her far more than the reprint rights are worth, under threat of maximum fines they would never have to pay.
There are plenty of people like this in the world -- vultures who prey on people who make mistakes. I'll wager that Amstutz makes far more money from legal extortion than she makes as a writer. She has left writing far behind. Now she's just a bully, like a big kid threatening little kids so they'll turn over their lunch money.
Card, as he did when JK Rowling started bullying the author of the Harry Potter Lexicon, points out how unoriginal the idea of Amstutz essay is in the first place. He points out that plenty of others have written similar things. While he says, correctly, that this doesn't change the fact that her specific expression is covered by copyright, it does raise questions about why Amstutz thinks her work is so special. His suggested solution: stop posting or forwarding her writings and return her "to obscurity where she belongs."
Finally, he shows how an author should respond to such flattery, by granting everyone the right to forward his works online, as long as they properly credit it. He does ask that people ask permission to repost his essays, but says he'll often grant the right, free of charge with little hassle.
If you thought that the entertainment industry would stop at having the ability to force ISPs to kick people they accuse (not convict) of file sharing offline, you might want to pay attention to what's happening in South Korea. South Korea, of course, is home to very high broadband penetration, with exceptionally high speeds. And, not surprisingly, there's a lot of unauthorized file sharing going on there. Of course, if you looked at the Korean cultural world, you'd immediately learn that smart entrepreneurs and entertainers quickly learned to adapt and take advantage of this new world. Entrepreneurs like JY Park recognized the changing marketplace, and adapted -- and the massive success he's had with artists like Rain and Wonder Girls, suggests that perhaps "piracy" wasn't a big deal. All you need is some smart business people who can adapt.
But, of course, we've all seen what sorts of companies are afraid to adapt. The big record labels and the big movie studios couldn't be bothered with the tricky proposition of actually understanding the new marketplace and adjusting their business model. So, they went to the US government and said "something must be done." That "something" turned out to be a new "free trade" (ha ha!) agreement with South Korea, that had little to do with free trade, but plenty to do with pushing ridiculously draconian copyright laws on South Korea (i.e., protectionism for the entertainment industry, not free trade). Of course, these new laws went way beyond what any other country had, and included getting the government to shut down file sharing sites while restricting how user-generated content sites could work as well. Not surprisingly, once the law passed, various sites began restricting how they could be used, even limiting the uploading of any songs, even ones that users themselves had created. And, of course, with all that, a "three strikes" plan to kick people off the internet was also included.
You would think that the industry would be happy and leave well enough alone, right?
Of course not. Reader Dan alerts us to the news that some entertainment industry lobbyists are now demanding that all file sharing services must use content filters. Otherwise, they plan to sue. Just another reminder that for some of these folks, enough will never be enough. They will keep pushing for more and more, just as consumers keep pushing back on having their own rights stripped away.
And, don't think this is limited to South Korea. Many of the "leaked" points about the needlessly secretive ACTA deal are supposedly "based on" the trade agreement that was done with South Korea. So take a look at what's happening there and see if that's how you think copyright law should work in the US.
As you hopefully know, back in 1999, the RIAA had a Congressional staffer named Mitch Glazier slip four words into a totally unrelated bill on satellite retransmission of broadcast TV, literally in the middle of the night, that effectively changed the way copyrights worked on songs by major label artists. It effectively took much of the control out of the hands of the artists and handed it right to the labels. Remember that the next time the record labels claim they're representing the best interests of artists. The use of four simple words, buried deep within the bill, which no one other than the RIAA knew about (seriously, those who voted on it later said they had no idea), turned songs recorded by artists signed to record deals to works made for hire. That meant that those artists could not reclaim the copyrights to their songs later on via a "termination" right, as any other content creator could. Glazier, the staffer who slipped this into the bill, ended up going to work for the RIAA just three months after putting this text into the bill. He was apparently hired with a $500,000 salary. Not a bad payoff for changing a key component of copyright law in the middle of the night when no one's looking.
Luckily, soon after this passed a few people did notice, leading to a big uproar from artists, and an eventual backtracking from Congress, who never did believe the RIAA's line that this "change" just "clarified existing law" rather than changed it entirely.
But, it's important to remember all of this when discussing termination rights for music. Back in October, we had discussed how the songs of many top musicians were quickly approaching those termination rights, and some of the major record labels stood to lose the copyrights on some of their biggest hit albums. Wired recently ran a similar article about this "ticking time bomb," and I wasn't going to post it, because I wasn't sure it added much new, until reader Mesanna pointed out one little factoid down at the bottom:
The second option is to re-record sound recordings in order to create new sound recording copyrights, which would reset the countdown clock at 35 years for copyright grant termination. Eveline characterized the labels' conversations with creators going something like, "Okay, you have the old mono masters if you want -- but these digital remasters are ours."
Labels already file new copyrights for remasters. For example, Sony Music filed a new copyright for the remastered version of Ben Folds Five's Whatever and Ever Amen album, and when Omega Record Group remastered a 1991 Christmas recording, the basis of its new copyright claim was "New Matter: sound recording remixed and remastered to fully utilize the sonic potential of the compact disc medium."
Now, of course that sounds ridiculous, to hear that record labels can get a new copyright on just remastering a work... but, that sounds an awful lot like the argument made by Bluebeat.com, concerning its "psycho-acoustic simulation" re-recordings of famous songs, that enabled it to claim a new copyright. Now, the record labels are crying foul about this, and the vast majority of copyright law experts say that Bluebeat's claim has no chance at all. But, if that's the case, then the record labels own attempts to get new copyrights on remastered albums to avoid the termination rights might also be in jeopardy. It seems like any argument that is made against Bluebeat can soon be used against the labels as well if they really do try to claim copyright on remastered albums.
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?
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.
Someone once told me that Viacom's top lawyer, Michael Fricklas, has been known to read Techdirt on occasion. I have no idea if this is true, but it still is interesting to watch him give a lecture to some Yale law students where he offers a somewhat nuanced position on copyright issues (thanks to JJ for being the first of many to forward the video to us), but which repeatedly seems to leave out certain pertinent facts:
He starts out by saying that he's a strong supporter of fair use, and doesn't like the idea of having to get licenses for creating new works -- but is concerned about the "exact copy" problem. So, basically he's in favor of fair use for creating new works, but not direct distribution.
He discusses copyright vs. free speech -- and insists that there's no "tension" between the two (despite many recent studies suggesting the exact opposite). Of course, he does a bit of a twist there, by saying that copyright is pro-free speech because it creates incentive for speech. The problem with this statement is that while that's the theory, the evidence for it is somewhat lacking. However, there is tremendous evidence of cases where copyright is used to stifle speech -- and of all the massive extensions and changes in copyright laws over the past 200 years, almost all have served to stifle more speech than they have encouraged.
He then trots out the industry's own numbers claiming how much copyright contributes to the economy, even though those numbers are based on a variety of questionable assumptions, including the idea that all content covered by copyright is only created because of copyright. Along those lines, he also credits copyright for things like the iPod and the Kindle, saying that no one's buying those devices just to look at them. This is correct -- but note the trick. He did not say that it was content that drove the iPod and the Kindle, but copyright. He's wrong. It's content. Not copyright.
He notes that some say that "unlicensed IP" might drive this innovation, but he favors "sustainable innovation" (as if anyone doesn't). And then he makes this odd statement:
"A more sustainable innovation is one where, if you make an investment, you have the opportunity to make a return."
Now, that's a great (by which we mean, useless) statement, because it's obviously true. Who would ever deny that? But it's a sneaky and disingenuous statement, because it implies something that's simply not true: that without copyright or without restrictive licensing, the investors do not have an opportunity to make a return. As we've shown over and over again, plenty of content creators who "free" their IP have not only made a return, but have made a better return than they did under older models that relied on copyright. But it's a sneaky trick that's often used by folks in this debate. You set up this strawman argument and then knock it down, despite the fact that no one ever made the argument, and you argue that something is fact (that you can't make a return) when it's empirically false. It's frustrating that this argument still gets made and people should really start calling the folks who make it out whenever they state such falsehoods.
Later, he talks about the "losses" from piracy, insisting that the findings come from a "sophisticated" analysis, not just from counting all downloads as lost sales. Of course, these numbers came from the same study process that led to some results that even the MPAA (of which Viacom is a major member) had to later admit were bogus. This is also the same "sophisticated analysis" that includes ripple effects in one direction only, so it's actually double, triple, quadruple, quintuple counting some numbers, while totally ignoring how those numbers actually help the industry in other ways. So, sorry if I don't take those loss numbers seriously, no matter how "sophisticated" he thinks they are. They're not. They're only "sophisticated" in how misleading they are.
He does have a short discussion on RealNetworks' RealDVD offering, which he implies enables piracy -- even as he admits he wants the functionality, where he could move a copy of a legally purchased DVD to his hard drive for backup or other viewing, but says his "concern" is that people would do this with Netflix DVDs. He believes that the problem with this is that RealNetworks had to break the encryption put in place by the studios. Notice, again, what Fricklas conveniently leaves out. First, he leaves out the fact that it is already legal for people to make backup copies of content they legally own -- but, thanks in part to Hollywood lobbying, Hollywood itself can block that right, simply by putting encryption on something and then saying that you can't circumvent it without breaking the law (thank you, DMCA anti-circumvention clause). He also leaves out (conveniently) the fact that RealDVD doesn't actually "break" the encryption and that the resulting copy still includes DRM that prevents copies. The fact that he's "concerned" about the Netflix model is of no consequence whatsoever. McDonalds is "concerned" about Burger King, but that doesn't give them a legal right to block them from being in business.
Then he pulls out the ever popular "$200 million movie" myth, which I thought was a favorite of NBC Universal, but I guess Viacom is going with it now as well. It's not a myth that there are movies that cost $200 million. The myth is that people want movies that cost that much. No one watching a movie cares how much it costs. They want good movies, no matter how much they cost. I'm sure people would like some $1 billion or $100 billion movies as well, but that doesn't mean we need to grant Viacom extra special legal privileges to make sure it can make a $1 billion or $100 billion movie profitably. People like good movies. Viacom wants to make profitable movies. We agree. But the $200 million number is meaningless. There are ways to make good movies for both less and more than $200 million and there are ways to make profitable movies even in the face of piracy. The claim that piracy undermines the $200 million movie, which is some sort of "necessity," is simply not supported.
On top of that, he tosses out the debunked claim that if something is "free" it means it's devalued. That's simply not true, no matter how many times people repeat it. If it were true, and the content had no value, no one would want it. Value and price are two separate things.
Then, he discusses the "Kanye West" MTV Video Awards "Imma let you finish..." example, by talking about how Viacom used various filtering tools to pull that clip off of various "unlicensed" user uploaded video sites. But he also talks about how they drove people to use the official Viacom clip, which allowed them to "participate in the benefit" of the video. Now, that's interesting, and it's great that they put their own clips up and made them embeddable. But, again, it's important to note what he left out. In forcing everyone to view the content through Viacom directly, it also increased Viacom's own cost in terms of bandwidth. The advantage of letting others help host and distribute the content is that it actually eases that cost.
His discussion on kicking people off the internet via a "three strikes" mechanism is getting much of the attention on other sites, because he mentions, totally in passing, that suing users "feels like bullying." This may sound like a big deal -- and certainly some other sites (and industry lawyers) are making it out like a big revelation, but it's not. The movie industry has never sued individuals for such things -- only the recording industry has. And even way back in the Jack Valenti days, he talked about why he didn't like the idea of suing individuals. So, this isn't a shift in positioning at all. Rather, it's a repeat of the new silly strategy of some in the industry to try to pretend that kicking people off the internet is "consumer relief." Not quite. Shooting someone in the leg instead of the head is certainly "better," but I doubt that the person shot in the leg considers it "relief."
Towards the end of that discussion, though, he makes another interesting statement, saying that: "there's no way to deal with this problem other than to move viewing into licensed contexts." Except, that's not true. There are other ways. It's called setting up a business model where people actually do have a reason to buy things, whether they view the content in a licensed or unlicensed manner. I recognize he's on the legal side, rather than the business side, but the idea that the "only" way to deal with piracy is to attack it, rather than embrace it, is a position that the industry long ago should have learned was a mistake.
His final point is discussing how DRM "enables new business models," and he more or less dismisses criticism of DRM as really just being criticism of "bad" DRM (of which there is plenty). However, what struck me, was how none of the "new business models" he described actually required DRM at all. You could do them all in some way entirely without DRM. All the DRM does is add restrictions. Of course, rather than adding restrictions, why doesn't the industry focus on employing new business models that give users more and make them want to buy, rather than trying to enforce artificial limitations?
On the whole, it is an interesting video, and well worth watching, but it conveniently misstates or leaves out important facts throughout. Unfortunately, the Q&A session that follows the presentation wasn't included, so I have no idea if any of the students challenged some of his assertions or pointed out some of the points that he left out. Anyway, maybe we can hope that Fricklas is, in fact, an occasional reader here and can stop by to address those questions and omissions.
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.
When Psystar first started selling PCs with Apple OS's installed on them, we knew there would be a lawsuit -- though it took a bit more time than we expected. Originally, Psystar tried to claim that Apple was violating antitrust law, which seemed like a wasted path for exploration -- and, indeed, a court rejected that claim. Then Psystar went back to more reasonable defenses... or so we thought.
The court hearing the case didn't seem to think any of Psystar's main lines of defense had any validity at all and granted summary judgment to Apple on all of the major points, saying that a trial wasn't even necessary. The "fair use" claim was already weak, and the judge noted that Psystar didn't even try to discuss any of the four factors generally used in determining fair use. The two (I thought) stronger claims were that (a) the right of first sale applied, and once Psystar purchased OSX legally, it could resell it, provided it was only installed on that one computer, and (b) that Apple went too far in its EULA terms, which demanded that OS X could only work on a Mac. Unfortunately, the judge didn't agree to either one, though I find the judge's reasoning perplexing and hardly convincing.
On the issue of first sale, here's what the ruling said:
The copies at issue here were not lawfully manufactured
with the authorization of the copyright owner. As stated, Psystar made an unauthorized copy of
Mac OS X from a Mac mini that was placed onto an "imaging station" and then used a "master
copy" to make many more unauthorized copies that were installed on individual Psystar
computers. The first-sale defense does not apply to those unauthorized copies.
Perhaps I'm missing something here, because earlier reports had suggested that Psystar legally purchased each copy of OS X and then installed the legally purchased copy on the new machine (which it then included with the sold machine). But from the description above, it sounds like part of the problem is that a single "master copy" was used to make multiple installations. Of course, that raises a whole host of separate issues. If Psystar legally purchased a separate license for each one, but still used a single master copy, is that really infringing? After all, the code is identical, and it seems positively ridiculous to say that even though you bought, say, 20 licenses, you can't just use one master copy to install 20 times. It seems like this could use additional clarification. Because, the other way one could interpret this is that there is no right of first sale if the company says a copy is unauthorized -- which would have troubling implications.
On the EULA front, the court again basically just takes Apple's position, and insists it did nothing wrong. I'm not surprised by the outcome at all, but I would have expected at least a more complete response to the First Sale doctrine rights issues. Even ignoring that a "copy" was being made -- with the physical copy, it really is a matter of first sale. The company is selling something it legally purchased.
Psystar will likely appeal, though I still have little faith that will get anywhere.
In the recent debate in the UK about copyright extension for performances, one of the key points raised by many who were against the proposal was that economic studies suggested that it would really only help a few big superstars (who probably were well enough off already) while harming up-and-coming artists greatly. Christian Zimmerman points us to a recent economics paper by Francisco Alcala and Miguel Gonzalez-Maestre that models why this happens, and points out that copyright extension actually serves to decrease incentives for the creation of new content. The full paper (pdf) basically points out that extending copyright really only helps the superstar performers, since, for everyone else, the economic value of the content is exhausted by the time the extension would matter. That's pretty obvious. But the more troubling part is that this also then negatively impacts the market for new artists, because money and attention that might have gone towards new works end up going instead to those older works.
Increasing the returns in the case of success may be counter productive
for helping new artistic careers. Most artistic markets operate in the framework of an
overwhelming machinery of promotion and advertising. Incentives to invest in the promotion
of the superstars rise as the prospects of superstars' revenues improve (as caused
by modifications in the regulation of copyrights or the size of global markets). In this
environment, the expected discounted return of a young artist' career may be reduced as
a result of a positive shock to superstars' revenues. As a consequence, larger high-type
artists' revenues may result in the long run in fewer numbers of artists, and therefore, less
high-quality artistic creation.
Nice to see more economists recognizing the problems of the current copyright system.
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