IP blawg entries mentioning fair use

Now THAT's Funny!

Posted by Alan Wexelblat — Mon, 09 Nov 2009 07:45:45 -0800

Remember how I said that the EFF weren't being sufficiently sarcastic in covering the Cartel's revelations about PVRs? Right, well, sometimes you do get good sarcastic commentary on the Web and today's helping is dished up by Cory over at boingboing.

He savages Rupert Murdoch for being the antiquated fossil he still is, someone who not only fails to understand the modern interlocked Web-centric methods of information distribution, but also someone who fundamentally opposes the very notion of fair use and seems to think if he just hires enough of the right lawyers he can make it go away.

OK, making fun of Rupert Murdoch is sort of shooting fish in a barrel but damn we need more funny stuff in these Copyright Wars.

Cognitive Dissonance Writ Large

Posted by Alan Wexelblat — Wed, 18 Nov 2009 08:06:59 -0800

Nate Anderson provides extensive coverage of Michael Fricklas's talk at Yale Law. Fricklas is top legal attack dog for Viacom, and the headline on the ars piece highlights the lawyer's admission that the Cartel's jihad against its own customers was... well, a jihad, though he uses the word "terrorism" which is an equally emotionally laden term.

Viacom, says Fricklas, isn't out to destroy fair use. Indeed, the company has won lawsuits and published Web sites based on fair use principles. It's just that, like the rest of the Cartel's philosophy, it wants your fair use to be on its terms and under its conditions.

For example, Viacom supports a "three strikes" policy - another terrible bit of info-propaganda. When people say "three strikes" they're usually referring to things like state laws that assign extra punishment to people who have been convicted in courts of breaking felony statues multiple times. When the Cartel says "three strikes" it means "we accused you of three copyright violations."

And of course if you've been accused by the Cartel you MUST be guilty, so it's OK to take away your Internet. And your household's Internet, too. Damned terrorists... oh, wait, it's Viacom who are the terrorists. Can we take away their Internet?

Fricklas is also still a big fan of DRM, a position for which Cory has no sympathy at all, calling it "magic bean syndrome." In essence, the Cartel have sunk so much money, time, and public image into the idea and implementation of DRM that they're unable to understand that it's the cold fusion of the content world. Fricklas appears to believe that the problem isn't DRM-the-concept, it's just the specific DRM that the Cartel have used to date. I don't think, so, Mr. Fricklas.

So what do we make of this set of admissions and non-admissions? I think it's important to remember that Fricklas is not an independent person. He's paid to create and promote the party line and that's what he's doing. It's no surprise to any sentient observer that the Cartel have figured out that suing their customers is a disaster from both financial and PR standpoints, so backing down there is a given. But in a sense this is a diversionary tactic. The Copyright Wars are, and have always been, a struggle for control. Viacom is just shifting which weapons it uses to maintain and extend that control.

A Little Light Weekend Reading - Google Books Settlement

Posted by Alan Wexelblat — Fri, 20 Nov 2009 09:46:01 -0800

In case you didn't have enough reading to do this weekend, here are couple of items analyzing the Google Books settlement.

First, Fred von Lohmann at EFF just published his third blog entry on the topic.

The first piece, very short, points out the key conflict of this settlement: we're trading off increased access to works that might otherwise be difficult to find, but at a potential cost in lost privacy, lock-ins that discourage competition, and limits on what otherwise would be fair use.

The second entry, much longer, looked at the issues around access. Access is the big promise of what Google is doing - you can not just search, but read online, millions of books that would otherwise be inaccessible to most people.

Item the third, in yesterday's column, are the downsides - the price of that access. The big fear here is not that access will be denied, but that it will be controlled. It will be for pay - rather than free in a library - and on Google's terms, rather than US Copyright law fair use terms. Those terms, von Lohmann argues, are potentially monopolist or at least highly anti-competitive.

From von Lohmann's postings you can jump directly to the 300-page PDF of the settlement to read the relevant bits for yourself.

Or, if that's too much heavy reading for you, the Copyright Clearance Center has put online a 21-minute podcast of their analysis by Lois Wasoff (also available as transcript). CCC would also like you to note that they're hosting an online seminar Dec 10th with Ms. Wasoff. CCC is a rights-holders organization and so approaches this settlement from the point of view of those who might want to claim rights over the books that Google has (or will) include in this plan.

The Distraction of Transparency: an ACTA News Roundup

Tue, 24 Nov 2009 18:59:45 -0800

Alerted in part by your letters and calls, Senators have begun to express concern over the secrecy and content of ACTA, while the MPAA, RIAA and other established groups rush to reassure them that ACTA — while of course they know nothing of its actual content — will be good for business and that "transparency is a distraction". Once again, it seems like one incumbent subset of the tech, content, and communications sector is banging the drum for ACTA while claiming to speak for creators, consumers, and everyone else affected in those large and increasingly diverse industries.

Meanwhile, from within the negotiations, it seems that the US proposals for an Internet chapter did not receive instant assent from other countries. Inside US Trade (for-pay article here) reports that the negotiators may not have successfully settled on a text for the Internet chapter of ACTA:

At the Nov. 4 to 6 negotiating round of the Anticounterfeiting Trade Agreement (ACTA), ACTA partners reviewed the United States proposal for an Internet chapter but did not agree to adopt the language, sources said.

If pressure from the Senate successfully reveals the provisional ACTA text, what should you expect to see? Public Knowledge's Sherwin Siy has an excellent piece on how dry diplomatic language can hide major IP changes, while Glynn Moody expands on the ratchet effect that occurs when countries decide to "harmonize" enforcement, but refuse to internationalize fair use or copyright exceptions and limitations.

The contrast between those two processes is evident in a current US Copyright Office Consultation on a proposed WIPO Treaty for the Reading Disabled, when the same groups that declared that it would be just fine that ACTA "codify best practices for enforcement" opposed attempts to codify the world's system for the protection of the public interest, such as for copyright exceptions for the blind, visually impaired and those with reading disabilities.

In the U.S. Copyright Office's WIPO treaty consultation, they are claiming that such a harmonization of standard copyright limitations would "begin to dismantle the existing global treaty structure of copyright law, through the adoption of an international instrument at odds with existing, longstanding and well-settled norms." It makes one wonder: would rightsholders be as flippant about the transparency "distraction" if it was the Treaty for the Blind and Visually Impaired that was an executive instrument being negotiated in secret, and not ACTA?

Copyright Fair Use Symposium at USF

noreply@blogger.com (Michael F. Kelleher) — Sat, 01 Nov 2008 15:47:00 -0700

Fair Use in the Sky with Diamonds: Examining the Derivative Works Right in the Face of Fair Use, a symposium at the University of San Francisco, explored difficult and interesting questions about copyright fair use.

Highlights included:

Corynne McSherry of the Electronic Frontier Foundation and Jason Schultz of the Samuelson Law, Technology & Public Policy Clinic at Berkeley Law School spoke about fair use cases including the Lenz v. Universal case (the video of a toddler dancing to a Prince song that drew a DMCA takedown notice). This case generated a decision under 17 U.S.C. sec. 512 that sending a takedown notice requires the copyright holder to consider the question of whether the posting is fair use.
Annette Hurst talked about defending the "artsurdist" who created parodies of Barbie and fifties kitchen appliances in the Mattel v. Walking Mountain case.
Jim Marshall, a famous photographer known for his photographs of rock stars, voiced his perspective that "fair use" is often used to justify unfair rip-offs of his work. He spoke about his famous photograph of Johnny Cash flipping the bird. (Search for it on the Internet - the photograph is everywhere).
Steve Vander Ark, the author of the Harry Potter Lexicon, discussed his creation of the Lexicon as a librarian's aid to finding details in the Harry Potter books. He described how writing the Lexicon was not about the money, but rather his love of the stories and the experiences like finding a headstone for James and Lilly Potter. In another panel, attorneys involved in the case discussed the trial and the principles involved.
Another panel with Paul Edward Geller and Ysolde Gendreau explored international copyright and moral rights.

First Amendment Barred Trademark Claims On Depiction of Strip Club in Video Game

noreply@blogger.com (Michael F. Kelleher) — Sun, 09 Nov 2008 16:18:00 -0800

Case: E.S.S. Entertainment 2000, Inc. v. Rock Star Videos, Inc., 9th Cir. No. 06-56237 (11/5/08)

The One Sentence Summary: The First Amendment barred trademark infringement claims regarding a fictionalized "Pig Pen" strip club in the game "Grand Theft Auto."

What They Were Fighting About: ESS, the operator of the Play Pen strip club, sued Rock Star games for trademark infringement and state law claims for Rock Star's depiction of a fictionalized "Pig Pen" strip club in the Grand Theft Auto video game. The district court granted summary judgment for defendants.

Ninth Circuit Holdings:

Trade dress claim arising from similarity of trademarks was disposed of with the same analysis as trademark claim.
Nominative fair use defense did not apply where the video game "Pig Pen" mark was not referring or commenting on "Play Pen" mark.
The panel applied the Second Circuit’s approach from Rogers v. Grimaldi, which
“requires courts to construe the Lanham Act ‘to apply to artistic works only where the public interest in avoiding consumer confusion outweighs the public interest in free expression.’ ” Walking Mountain, 353 F.3d at 807 (emphasis in original) (quoting Rogers v. Grimaldi, 875 F.2d 994, 999 (2d Cir. 1989)). The specific test contains two prongs. An artistic work’s use of a trademark that otherwise would violate the Lanham Act is not actionable “ ‘unless the [use of the mark] has no artistic relevance to the underlying work whatsoever, or, if it has some artistic relevance, unless [it] explicitly misleads as to the source or the content of the work.’ ” Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894, 902 (9th Cir. 2002) (quoting Rogers, 875 F.2d at 999).
The depiction of the Play Pen club in the video game had some artistic relevance.
The use of the Play Pen club in the video game did not explicitly mislead players of the game.
The trial court properly granted summary judgment for defendants.

Fair Use in the Internet Age

Andrew — Wed, 16 Nov 2005 15:07:00 -0800

The House Committee on Energy and Commerce Subcommittee on Commerce, Trade and Consumer Protection held hearings today on Fair Use: its Effects on Consumers and Industry.

Mr. Peter Jaszi
Professor
Washington College of Law
American University

Mr. Gary Shapiro
President & Chief Executive Officer
Consumer Electronics Association
Arlington, VA

Ms. Prudence S. Adler
Associate Executive Director
Federal Relations and Information Policy
Association of Research Libraries
Washington, DC,
On behalf of: The Library Copyright Alliance

Mr. Jonathan Band PLLC
Washington, DC,
On behalf of: NetCoalition

Ms. Gigi B. Sohn
President & Founder
Public Knowledge
Washington, DC

Mr. James V. DeLong
Senior Fellow & Director
IPCentral.Info Progress & Freedom Foundation
Washington, DC

Mr. Frederic Hirsch
Senior Vice President, Intellectual Property Enforcement
Entertainment Software Association
Washington, DC

Mr. Paul Aiken
Executive Director
Authors Guild, Inc.
New York, NY

An archived webcast and witness and member statements are available here.

Much of the hearing focused on discussing the merits of HR 1201, The Digital Media Consumers' Rights Act of 2005. HR 1201 would create a fair use exemption to the DMCA prohibition on circumventing digital rights protections schemes (aka DRM). In addition, the bill would authorize the FTC to require manufacturers and retailers to label copy protected CD's.

Most of the witnesses who addressed the panel spoke in favor of this bill and in defense of the fair use right. Jaszi discussed the tradition of fair use within the Copyright Act and noted a number of policy arguments in favor of the fair use rights, particularly the fact that fair use prevents copyright from overwhelming the First Amendment. As the reach of copyright law is constantly expanding to provide more restrictions on uses than ever before, fair use matters.

Shapiro started off discussing how fair use ensures innovation. Without fair use, there would be no VCR, tape recorder, Tivo, or iPod. The information technology industry relies on fair use-- fair use is all that protects inventors from an over-protected world. Because every use of digital content requires making a copy, fair use is especially important and needs to be strengthened. Americans should be able to use their property in any way they choose that does not harm others.

Band also noted that all actions in the digital world require making copies, including viewing web sites and replying to emails. Search engines depend on fair use in order to exist. Each major search engine copies a large portion of the world wide web every month under and opt-out scheme of implied consent. Kelly v. Arriba Soft found that search engine indexing is fair use and limiting this use would hurt the way we find information on the internet.

Adler discussed the relevance of fair use to the mission of libraries. Fair use works well because it is flexible, dynamic and inherently ambiguous. In addition to fair use by library patrons, librarians rely on fair use to create print and electronic reserves and to digitize print works. But when acquiring databases and electronic resources for collections, libraries license, rather than acquire like print material. License agreements are more restrictive than the scope of rights under fair use. Once technological controls are built-in to software, it is impossible for libraries to negotiate exceptions in license agreements.

Adler concluded by stressing the importance of libraries, who, rather tan publishers, archive copies for future uses. Fair use is an important safeguard on our nation's interest in cultural information.

Sohn discussed how fair use rights are slowly being chipped away. Although consumers expect to use content when, how and where they want, the content industries have managed to restrict these uses in the name of preventing piracy. Under the current anti-circumvention law, it is illegal for an individual to copy songs from a copy-protected CD for personal use, shifting video from a DVD to view on an iPod, or removing malicious DRM "rootkit" software from a computer. Sohn asked the representatives to "reject the notion that your constituents are pirates and theives. They do purchase digital products when those digital products are avilable on the market." In addition, she encouraged the representatives to reform the DMCA so that it permits circumvention solely for lawful purposes and clarify and strengthen the DMCA triennial review process.

Public Knowledge thinks that DRM is fine, so long as it is marketplace driven, not driven by legislation. FairPlay works in the marketplace, while Sony's didn't. The government should not mandate technological protection measures. DeLong agreed with applying a marketplace test to technology. But then, DeLong thinks a marketplace will sort out all problems with the copyright economy.

DeLong testified, "We don't talk about the need to balance the interests of automobile manufacturesr and drivers. We assume that we can establish rules promoting markets and allowing the market to sort itself out." Fair uses usually exist when the transaction cost of getting permission is out of proportion to all value to the user and detriment to the creator.
The internet is taking transaction costs out of the system.

DeLong credited DRM with creating marketplace solutions to things that used to have a cost. On the other hand, DRM imposes a cost on performing actions that the law has traditionally considered to be fair uses-- uses either so important to the free spread of ideas or so trivial that the law is not concerned with imposing a cost. These are actions that have no monetary value, yet are to be part of a marketplace? Fair use and free use are not necessarily the same.

Aiken and Hirsch, not surprisingly, spoke against strengthening the scope of fair use.

In both his opening statement and questioning of the witnesses, Stearns focused on seeking a technological solution for the "fair use problem." He thinks that technology should be able to come up with a magic bullet that would absolve Congress of its role in having to make difficult decisions about what activities should be encouraged and which activities prohibited. Stearns asked, "Why not make this the copyright equivalent of a race to the moon? Why shouldn't we be able to technologically limit the number of copies?"

Impressionistic transcripts of the most interesting questions asked by the subcommittee follow in the extended entry at iptablog (blogger has no extended entry feature.)

Senate to get techy next year

Andrew — Wed, 30 Nov 2005 15:32:00 -0800

Internet News reports that the Senate Commerce Committee will hold a number of hearings on internet and communications issues early next year: Senate Sets Ambitious Tech Schedule: "Signaling its intent to focus on Internet and telecom issues next year, the U.S. Senate Commerce Committee plans to hold 14 hearings on a wide variety of technology topics between January and March."

I'll try to cover these as much as possible. Maybe it's time to consider finding a sponsorship to underwrite complete coverage…

Committe on Commerce, Science & Transportation upcoming hearings:

1/19 - Decency
1/19 - Internet Pornography
1/24 - Broadcast and Audio Flag
1/31 - Broadcast and Audio Flag
2/7 - Net Neutrality
2/14 - State and Local Issues and Municipal Networks
3/2 - Wireless issues/spectrum reform
3/14 - Voice over Internet Protocol (VoIP)
3/14 - Wall Street's Perspective on Telecommunications

Previously: Fair Use in the Internet Age, Broadcast Flag and the Analog Hole, Protecting Copyright and Innovation in a Post-Grokster World.

FairUse4WM cracks Microsoft's PlaysForSure DRM

Tim Marman — Mon, 28 Aug 2006 13:18:00 -0700

The big news last week was that the Windows Media DRM was cracked. Derek also thinks this isn't entirely a bad thing, and in fact this benefits both the consumers and the online music services. As Grant puts it, "DRM doesn't protect content in any meaningful way. DRM does however present an encumbrance to legal uses of media purchased by legitimate customers." This is, ultimately, the paradox of DRM: it keeps the 'good guys' from using works that would fall under fair use, but doesn't protect against the "bad guys" determined to steal anyways.

Peter Rojas, in an open letter to Microsoft, implores the company not to kill the FairUse4WM project. Rather than being an incentive for people to steal music, he suggests that many friends and readers have actually expressed an interest in signing up for these services. I tend to agree with this assessment. Until iTunes offers a subscription plan, this means that nearly nearly 80% of all digital music players are excluded from subscription service. If I were able to play Yahoo! Music or Napster music on my iPod, I would undoubtedly subscribe, and I'm sure many others are in the same situation.

As Peter puts it, "what keeps them paying is the continuing access to a large, frequently updated catalog of new releases and older tunes", and "DRM makes paying for music less attractive than stealing."

People aren't just downloading music illegally because it's free - they're downloading it because they can't get what they want from a paid service. Simply put, DRM doesn't work.

(Cross-posted to Loosely Coupled)

Google adds news archives

Tim Marman — Wed, 06 Sep 2006 00:59:00 -0700

Google announced today that it has "added the ability to search through more than 200 years of historical newspaper archives alongside the latest contemporary information."

As with its current News service, Google will merely index the content and will not handle content delivery. They will also not charge content owners or consumers for the service.

Some of the content Google will be indexing has entered the public domain, but there is still plenty of content that is still under copyright. Google has announced agreements with The New York Times and Time Magazine to provide archived content for the service, but will also include articles "indexed from the Web without formal arrangements with their publishers".

If you recall, that practice prompted a lawsuit from the Angence France-Presse, alleged that the headline presented with the photo and excerpt constituted the "heart of the matter" and was thus an infringing use. While I can certainly appreciate the merits of AFP's argument, I do still agree with Prof. Patry's analysis that this constitutes Fair Use.

(Cross-posted to Loosely Coupled)