Australian Copyright Industry Says Proposal To Bring In Fair Use Is 'Solution For Problem That Doesn't Exist'

A couple of months back, Techdirt wrote about Australia's proposals to shift from the current fair dealing approach to fair use as part of wide-ranging reform of copyright there. When something similar was mooted in the UK as part of what became the Hargreaves Review, it was shouted down by the copyright maximalists on the grounds that it would lead to widespread litigation. As Mike pointed out at the time, that's nonsense: the existence of a large body of US case law dealing with this area makes it much easier to bring in fair use without the need for its contours to be defined in the courts. 

On Techdirt.

Lacking Fair Use Rights, Argentina Tries To Increase Access To Copyright Works, With Mixed Results

If you think copyright is bad in regions like the US or Europe, this post from Intellectual Property Watch points out that things could be much worse: 

On Techdirt.

Google's Perpetual Monopoly on Orphan Works

Here's an interesting analysis of the Google Book Search settlement. This, you will recall, resolved the suit that authors and publishers brought against Google for scanning books without permission - something it maintained it could do without, since it only wanted to index its contents, not display them in their entirely.

At first this looked like an expensive and unnecessary way out for Google: many hoped that it would fight in the courts to determine what was permitted under fair use. But as people have had time to digest its implications, the settelement is beginning to look like a very clever move:

Thanks to the magic of the class action mechanism, the settlement will confer on Google a kind of legal immunity that cannot be obtained at any price through a purely private negotiation. It confers on Google immunity not only against suits brought by the actual members of the organizations that sued Google, but also against suits brought by anyone who doesn’t explicitly opt out. That means that Google will be free to mine the vast body of orphan works without fear of liability.

Any competitor that wants to get the same legal immunity Google is getting will have to take the same steps Google did: start scanning books without the publishers’ and authors’ permission, get sued by authors and publishers as a class, and then negotiate a settlement. The problem is that they’ll have no guarantee that the authors and publishers will play along. The authors and publishers may like the cozy cartel they’ve created, and so they may have no particular interest in organizing themselves into a class for the benefit of the new entrant. Moreover, because Google has established the precedent that “search rights” are something that need to be paid for, it’s going to be that much harder for competitors to make the (correct, in my view) argument that indexing books is fair use.

It seems to me that, in effect, Google has secured for itself a perpetual monopoly over the commercial exploitation of orphan works. Google’s a relatively good company, so I’d rather they have this monopoly than the other likely candidates. But I certainly think it’s a reason to be concerned.

Cunning.

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SAP True to its Name

What is going through the mind of SAP? These people are *promoting* your products:

Business Objects claims that no one can use a Crystal Reports screenshot in a book without their approval. They sent letters to courseware vendors (including me) telling use that we need to get permission to use screenshots in our books. Most vendors ignored those letters and nothing more was said in the three years since. Now it appears that more letters are going out from SAP (who now owns Business Objects). I read one of the letters this past week and it talks about screenshots and adds a new warning about using SAP trademarks like the term “Crystal Reports”. The letter was very impressive, with majestic references to various sections of US copyright and trademark law. Sprinkled throughout the letter was the Latin incantation “inter alia” to make it seem almost pontifical. It sounded so ominous that it brought to mind the blustering Wizard of Oz (”ignore the little man behind the curtain”).

As I explained in 2005, using screenshots of a software product in a book is a “fair use” of a copyrighted work (see Sony vs Bleem). And there are also several clear cases to show that “nominal” use of a trademark word or phrase is fine for any purpose at all, so long as you are not claiming to be affiliated with or authorized by the trademark holder (see Volkswagen vs Church).

(Via Techdirt.)

Don't Steal This Book, Michael

The Kindle is a breakthrough device, in many ways analogous to the first iPod. Just as the iPod brought MP3 players to the masses, the Kindle will be the device that introduces ebooks to many people.

And while Apple sells lots of songs legally on iTunes, the vast majority of content on most iPods comes from home-ripped CDs or was obtained in violation of copyright laws. I expect the same thing with the Kindle. Users may buy a book or two on Kindle, but many users will simply steal the content they want to read.

Sorry, Michael, violating copyright laws is very different from "stealing", as you should know. Moreover, "home-ripped CDs" are not even violations of copyright laws in many jurisdictions (and shouldn't be in any, since it's clearly a fair use/fair dealing.) Confusing these facts simply plays into the hands of the copyright bullies.

Bring on the Fair Use Dolphins

A couple of weeks ago I wrote about the unsatisfactory UGC Principles put together by media companies, particularly with regard to the exiguous recognition of fair use. Well, good news, chaps, those nice people at the EFF have put together a document *totally* about Fair Use Principles for User Generated Video Content:

Online video hosting services like YouTube are ushering in a new era of free expression online. By providing a home for “user-generated content” (UGC) on the Internet, these services enable creators to reach a global audience without having to depend on traditional intermediaries like television networks and movie studios. The result has been an explosion of creativity by ordinary people, who have enthusiastically embraced the opportunities created by these new technologies to express themselves in a remarkable variety of ways.

The life blood of much of this new creativity is fair use, the copyright doctrine that permits unauthorized uses of copyrighted material for transformative purposes. Creators naturally quote from and build upon the media that makes up our culture, yielding new works that comment on, parody, satirize, criticize, and pay tribute to the expressive works that have come before. These forms of free expression are among those protected by the fair use doctrine.

New video hosting services can also be abused, however. Copyright owners are legitimately concerned that a substantial number works posted to some UGC video sites are simply unauthorized, verbatim copies of their works. Some of these rightsholders have sued service providers, and many utilize the “notice-and-takedown” provisions of the Digital Millennium Copyright Act (DMCA) to remove videos that they believe are infringing. At the same time, a broad consensus has emerged among major copyright owners that fair use must be accommodated even as steps are taken to address copyright infringement.

All good stuff, but the best bit is the following principle:

Informal “Dolphin Hotline”: Every system makes mistakes, and when fair use “dolphins” are caught in a net intended for infringing “tuna,” an escape mechanism must be available to them.

I don't think we're in Kansas any more.

UGC "Principles" - Ugh!

Here's a fatuous little document:

Copyright Principles for UGC Services

Leading commercial copyright owners (“Copyright Owners”) and services providing user-uploaded and user-generated audio and video content (“UGC Services”) have collaborated to establish these Principles to foster an online environment that promotes the promises and benefits of UGC Services and protects the rights of Copyright Owners.

Well, no, actually. All it does is codify the petnulant demands of the media industry, and lay bare their incomprehension of the brave new world in which they find themselves, darkling. There is no quid pro quo for users (except "principle" no. 6: When sending notices and making claims of infringement, Copyright Owners should accommodate fair use. - Well, that's jolly nice of them), and precious little for any "UGC" service that signs up.

The most interesting thing about this utterly pointless exercise in self-delusion is that Microsoft has signed up, and Google hasn't, which speaks volumes about their respective positions as far as "UGC" and the media industries are concerned. Curious, too, that the whole document is marked "©2007 Microsoft Corporation" as if Microsoft had written the whole thing....

Fair Use Worth More Than Copyright

Fair use (fair dealing in the UK) is the Cinderella in the world of intellectual monopolies. Some brazen monopolists have even gone so far as to claim that fair use is not a right.

Against this background, it's good to see some US research that not only recognises the vital contribution fair use makes to society, but puts a value on it:

This report has sought to measure the footprint of fair use on the U.S. economy. It has considered not only the core fair use industries, but also the suppliers of goods and services to the fair use core and major users.

The research indicates that the industries benefiting from fair use and other limitations and exceptions make a large and growing contribution to the U.S. economy. The fair use economy in 2006 accounted for $4.5 trillion in revenues and $2.2 billion in value added, roughly 16.2 percent of U.S. GDP. It employed more than 17 million people and supported a payroll of $1.2 trillion. It generated $194 billion in exports and rapid productivity growth.

These figures are particularly important in the context of the inflated claims of various content organisations like the RIAA and MPAA with respect to losses caused by unauthorised copying. In fact those losses - and the combined contribution of copyright-based industries - are dwarfed by the scale of the fair use world.

Time for Cinderella to marry the prince. (Via Slashdot.)

Google's Choice of Hercules

Further to yesterday's post about a call to respect free use of copyrighted material, here's an interesting point about Google's participation:

it certainly seems ironic that Google is being associated with this complaint, at the same time as they are putting putting highly misleading notices on scanned public domain works:

The Google notice, found as page 1 on downloadable PDFs of public domain works available via Google Book Search, "asks" users to:

Make non-commercial use of the files. We designed Google Book Search for use by individuals, and we request that you use these files for personal, non-commercial purposes...

Maintain attribution The Google “watermark” you see on each file is essential for informing people about this project and helping them find additional materials through Google Book Search. Please do not remove it.

There is clear U.S. precedent that scanning a public domain work does not create a new copyright so there seems to be absolutely zero legal basis for restricting use or forcing users to preserve inserted per-page watermarks-cum-advertisements.

So, which side are you on, Google? (Via Michael Hart.)

Playing Fair with Fair Use

A straw in the digital wind?

Today, the Computer and Communications Industry Association -- a group representing companies including Google Inc., Microsoft Inc. and other technology heavyweights -- plans to file a complaint with the Federal Trade Commission, alleging that several content companies, ranging from sports leagues to movie studios to book publishers, are overstepping bounds with their warnings. The group wants the FTC to investigate and order copyright holders to stop wording warnings in what it sees as a misrepresentative way.

A sign, at least, that people/companies are becoming more aware of fair rights issues:

Justin Hughes, a professor of law at Cardozo School of Law at Yeshiva University in New York, said the notion of fair use is expanding in the digital age, with consumers getting used to copying CDs, for example, as a gift for somebody. A difficulty with the concept of fair use is that while the Copyright Act establishes what fair use is, the application of the rules is still somewhat subjective, said Mr. Hughes. They call for courts to consider several factors ranging from the nature of the use -- such as whether it is public or private -- to whether the reproduced work had any effect on the market for the original.

Such questions are cropping up more in the context of the Internet. For example, Google is arguing its project to digitize the world's books and make snippets of them available on demand falls under fair use; the Authors Guild and a number of major publishers disagree and are suing the search engine. By contrast, most scholars agree that posting a straight clip of a television show, as some YouTube users do, doesn't fall under fair use. YouTube, which Google bought last year for more than $1.7 billion, quickly removes them once copyright holders complain.

WIPO Webcast Wipe-Out?

Good news, it seems:

World Intellectual Property Organization negotiations for a treaty on rights for broadcasters broke down at the eleventh hour, according to participating government officials. A high-level final treaty negotiation scheduled for November will not take place, they said.

This was a treaty that would have effectively killed fair use for "webcasting" - essentially distributing media files online. There's still a slight danger that the wicked WIPO witch isn't quite dead:

Government sources stopped short of calling the treaty talks dead forever, saying that proponents might still propose a way to resume the talks in the future.

Fingers crossed.

Update: My characterisation of the threat is ill-expressed at best, and downright wrong at worst. Try Ars Technica for something better.

Real Openness, Real Guts

Carl Malamud is one of the original digital pioneers, probably best-known for founding Internet Multicasting Service and Internet Talk Radio. But as well as the technology, he also has the moral side covered too.

Try reading this astonshing letter to the head of C-SPAN, following discussions about fair use of its recordings. It concludes with the following bold offer:

C-SPAN is a publicly-supported charity. Your only shareholders are the American public. Your donors received considerable tax relief in making donations to you. You and your staff were well paid for your excellent work. Congressional hearings are of strikingly important public value, and aggressive moves to prevent any fair use of the material is double-dipping on your part. For C-SPAN and for the American public record, the right thing to do is to release all of that material back into the public domain where it belongs.

I thus write to you today with a specific request and a notice:

1. Your inventory shows 6,251 videos of congressional hearings for sale in the C-SPAN store at an average price of $169.50, for a total retail value of approximately $1,059,544. I am offering today to purchase this collection of discs from you for the purpose of ripping and posting on the Internet in a nonproprietary format for reuse by anybody. I understand your store would take a while to process such an order and am willing to place it in stages.
2. I have purchased Disc 192720-1 from the C-SPAN store, ripped more than one minute of video from the disc, and used it for the creation of a news and satirical commentary of compelling public interest and then posted the resulting work at the Internet Archive. I did not ask C-SPAN for a license and I assert fair use of this material.

Mr. Lamb, C-SPAN has been a pioneer in promoting a more open government. You created a grand bargain with the Cable Industry and the U.S. Congress. When I created the first radio station on the Internet and was asked why I did so as a non-profit instead of going for the gold like many of my colleagues, my reply has always been that I was inspired by your example.

Your grand bargain has served the American people and the C-SPAN organization well. Holding congressional hearings hostage is not in keeping with your charter, and it is not in keeping with the spirit of that grand bargain you made with the American people. Please re-release this material back into the public domain where it came from so that it will continue to make our public civic life richer.

Sincerely yours,

Carl Malamud

(Via Jon Udell.)

Sinning Against the Holy God of American IP

Even for the field of intellectual monopolies, which is strewn with examples of hypocrisy and bullying, this "301 report" from the International Intellectual Property Alliance in the US really takes the biscuit. Here's what Michael Geist, one of the world's leading legal scholars has to say of its truly paranoid listing of most countries of the world for their transgressions against the holy god of American IP:

each invariably criticized for not adopting the DMCA, not extending the term of copyright, not throwing enough people in jail, or creating too many exceptions to support education and other societal goals. In fact, the majority of the world's population finds itself on the list, with 23 of the world's 30 most populous countries targeted for criticism (the exceptions are Germany, Ethiopia, Iran, France, the UK, Congo, and Myanmar).

The U.S. approach is quite clearly one of "do what I say, not what I do" (fair use is good for the U.S., but no one else), advising country after country that it does not meet international TPM [Trusted Platform Module] standards (perhaps it is the U.S. that is not meeting emerging international standards), and criticizing national attempts to improve education or culture through exceptions or funding programs. Moreover, it is very clear that the U.S. lobby groups are never satisfied as even those countries that have ratified the WIPO treaties or entered into detailed free trade agreements with the U.S. that include IP provisions still find themselves criticized for not doing enough.

I'm really quite ashamed that the UK isn't on the list, too: the fault of Tony "the poodle" Blair, I suppose.

China Mobile: More Users Than the Entire US

Think about it:

There are more mobile phone subscribers at one Chinese operator than people in the entire U.S., according to figures China Mobile posted on its Web site late Friday.

The French Disease

For a nation of rationalists, France's DADVSI law is a seriously irrational piece of legislation that guts not just fair use, but comprehensively clobbers free software. Read this explanation - and then weep. (via Boing Boing.)

Why Copyright Is Broken

When over half of those asked in a poll admit to breaching copyright law - which means the real number is likely to be much higher - there is clearly something wrong with that law. It indicates that copyright terms need to be reduced, rather increased, which is the current trend, and fair use rights made explicit and wide-ranging. Otherwise we can expect more and more to ignore the law, which is hardly good for society.

Now It's Trademarks' Turn

I've written a fair amount about patent woes in these posts (some would probably say too much). And in many ways, patents are easy pickings, since the idiocies perpetrated by patent offices around the world are pretty obviously wrong, even to the person on the Clapham omnibus.

But trademarks are another matter. Rights and wrongs here are more slippery, since there is certainly commercial sense in allowing owners to protect brands that they may have invested considerable amounts to build up. But trademarks are not like copyright: it is not an artistic question of infringing on an expression of an idea, but rather a commercial issue of avoiding confusion in the marketplace.

So the news that the US is about to push through some changes to its trademark law that will radically re-shape what trademarks will do in areas outside commerce is bad indeed. The bill in question would remove traditional exceptions to US trademark law that concern news reporting and commentary; fair use; and non-commercial use. If these proposals become law, it will give owners of trademarks huge and totally inappropriate power over not just competitors, but the media and the public too.

Update: Here's what companies already get up to using trademarks.

VIIV, DRM, and Fair Use: the Big One

The ever-acute Doc Searls reports on the CES keynote from Intel CEO Paul Otellini. Given Searls' position as an alpha blogger, it was inevitable that this was a live, minute-by-minute blog - and yes, it did include the obligatory moan about the missing WiFi connection.

But what is really important about this posting is that it makes plain VIIV's role as the platform that broadcasters and music companies - with indispensable help from a willing Intel and Microsoft - will use in their latest attempt to take complete control of content.

I already knew in 2000 that all this was coming. I knew because Eben Moglen, the legal brains behind the free software movement, and an extremely wise, articulate and modest man, told me so when I was writing Rebel Code:

Let's think of the Net for a change as a collection of pipes and switches, rather than thinking of it as a thing or a space.

There's a lot of data moving through those pipes, and the switches determine who gets which data, and how much they have to pay for it downstream. And of course those switches are by and large what we think of as digital computers.

The basic media company theory at the opening of the twenty-first century is to create a leak-proof pipe all the way from production studio to eyeball and eardrum. The switch that most threatens that pipe is the one that at the end. If the switch closest to your eyeball and eardrum is under your complete technical control, the whole rest of the aqueduct can be as leak-proof as you like, and it won't do them any good. And the switch is under your control, of course, if the software is free software.

So for the great VIIV plan to work, free software has to be shut out from the equation. This means no DVDs, no DRM for GNU/Linux - for the simple reason that truly free software always gives you the possibility of evading the software controls that are in place.

And for those of you who say, well, provided we have our traditional fair use rights, what's the problem? - this is the problem. Draft US legislation would effectively freeze your rights to existing technologies: had this been the case in the past, you would not have fair rights to burn MP3s from your CDs, or even videotape TV programmes.

There is no halfway house in this coming war, no compromise position: either you hand carte blanche to the film and music industries to decide what you can do with the content you buy, or else you fight for the right to decide yourself.

This is the Big One.