Overreaching Copyright Notices

Continuing in my series on which extend past their duty and rightful place, I have the "Copyright Policy" for a popular blog, Digital Inspiration by Amit Agarwal:

* If you want link from your site to Digital Inspiration

You are welcome to use short quotes from Digital Inspiration in your website or blog as long as proper credit is given. But please quote only short excerpts - up to one paragraph - from my site when you make the link.

You must credit Digital Inspiration when you quote. Always provide a hyperlink (full URL) to the article where the quote is from. Don't hyperlink just to the homepage. Copy quoted material exactly, enclose it in quotations marks, and mention Digital Inspiration immediately before or after the quote.

For Print media: you must print the full Internet address of the post.

What Amit is describing above is fair use and he cannot dictate how you exercise it. The beauty of the right of fair use is that it does not require the support or agreement of an author. He is right that I am "welcome to use short quotes from Digital Inspiration," but in contrast to what he would have you believe, the length can easily be longer than one paragraph and I do not need to credit him (though it only makes sense).

American law has differed from Europe in that the USA has never set distinct principles for what constitutes fair use. Instead, a court must decide the reasonableness of the excerpt.

I really enjoy Amit's blog and hope he can capitalize on his hard work, but the danger of misinforming the public about copyright is that it threatens to influence a generation of zombies who accept strict content control.

Brief Intermission

I will be out of the country for the next week so posting will be light. Fear not; posting will return with a vengeance.

As always, contact me by emailing kevin (at) copyrightings (dot) com

Google's Legal Battles

The recent news that Viacom has sued Google puts two major legal battles in the hands of Google's legal department. Let's take a look at them:

Google Book Search Suit

Google is currently scanning millions of volumes at the major libraries of the world. The books they have scanned are being made available for search. They are scanning books with three legal statuses:

1. Public Domain Works
These books have no restrictions as to how they can be reproduced. In fact, many, including Microsoft, Yahoo, Project Gutenberg and the Internet Archive, are in the process of making public domain books available online.

2. Copyrighted and Out-of-Print Works
For these books which are no longer available and often do not have a readily findable copyright owner, Google is providing snippet search results. That is, you can see the term for which you searched and a few lines of context. The Authors Guild and publishers who are suing Google still object because they are afraid of the future. Oh, I mean, they object because Google is still copying the entire book even if they are only showing a fair use portion.

3. Copyrighted & In-Print Works
Google is displaying these works as either card catalogue entries or through snippet access.

The suit is most likely just a business negotiation which happens to take place in the court room (sad, I know), but what does the law say?

Google is copying massive amounts of copyrighted material. The scale of this project is like nothing in the history of mankind. However, for copyrighted works, they argue that they are only providing fair uses of the material. The case really rests on whether or not the court finds that the initial act of copying is transformative enough to constitute fair use itself.

Google will argue that because the copied material does not affect the marketability of the books until it is displayed, the initial copying satisfies that requirement of fair use. Secondly, the ability to search through millions of books and find information like never before adds a value that books previously did not have. Further, Google is experimenting with mapping the locations mentioned in a book and linking books together which further transforms it to a different product than just a plain old book.

It is worth mentioning that if the case does go to trial and Google loses, the entire web search business (and thus the utility of the Internet) would drastically decline. In order to provide Internet search, Google creates a copy of every web page (which are copyrighted) and then provides snippet access to those. While publishers might argue that it is different because Google links to the original works, using Google Book Search will show that they provide numerous links to purchase the physical book at different sites.

Viacom v. GooTube

The future of Internet video hinges on this case which, in my opinion, stands a better chance of going to court. Viacom, one of the major content production companies, has sued Google-owned YouTube for copyright infringement. This case is more dependent on statutory law than the previous which will rely on legal precedent.

The Digital Millennium Copyright Act provides Internet Service Providers a "safe harbor" where they cannot be sued are they to comply with a written request to remove a users copyright-infringing material. This section of the law was a compromise between the telcos, who recognized they could not monitor what their customers used the Internet for, and the content industry, who wanted an easy way to remove what they thought was infringing material.

In practice, this law has applied to both ISPs and websites which host user submitted material. For example, in February, Viacom sent YouTube 100,000 notices of infringing material which was subsequently removed by YouTube. Much of this material was Daily Show clips or South Park shorts. Although forward looking business people recognize the value of this exposure, Viacom apparently feels that it can do better without introducing people to their shows on the most popular video site in the world.

Viacom argues that YouTube has a duty to remove infringing material. According to them, because YouTube scans for and removes pornography they should be able to remove infringing material, too. In fact, it has been reported that Google was willing to remove infringing material for those who would agree to provide their material officially for the service.

However, the DMCA clearly places the burden on the copyright holder to police his works and provide notice of its infringement. Statutory law is in favor of YouTube.

Case law, on the other hand, might not be. The Grokster Supreme Court decision created a new test for technological innovation. Under the ruling which found Grokster liable, a technology and its provider may be liable if the technology "induces" copyright infringement. The prevalence of copyrighted works on YouTube would seem to suggest that consumers use the service for sharing copyrighted works, but bear in mind that YouTube has a strict terms of use, limits length to 10 minutes and readily complies with DMCA take-down notices. Lessig calls the Grokster test a monster and it will certainly rear its head in court.

In general, I am less worried about this case than the book case because of the implications. The Book Search case has the possibility of shutting down one of the greatest knowledge aggregations in history. The unification of centuries old information with digital technologies opens up astounding possibilities for future scholars. As for YouTube, even though Viacom may succeed and Google may have to pay $1 billion, it will survive and Internet video will continue as Viacom provides official versions elsewhere.

I'll be sure to update you on these cases as they develop both here and on my link blog.

Walt Mossberg Calls for Copyright Reform

Walt Mossberg, technology columnist for the Wall Street Journal, calls for copyright reform legislation in tomorrow's column. He has a fairly reasonable approach which characterizes the DMCA and fair use well.

I hope the WSJ types pay attention.

DRM Interview

A friend interviewed me for a paper on DRM. Here's the transcript:

How are DRM and copyright related?

1. Copyright is a government mandated, artificial monopoly which evolved historically to support authorship by providing an economic encouragement; it is a legal term. Digital rights management, which is more aptly called digital restriction management, refers to any number of technological limitations which attempt to prohibit the copying of content; it is a technological term. DRM is technology enforcing the rights that someone thinks the law gives them. They may or may not actually have those rights. In the past, when technology did not allow for the reproduction of content as easily, copyright was hardly an issue. The common man could not reproduce copyrighted material with ease and great fidelity. So, in the limited copyright infringements that occurred, the courts dealt with the situation. Now, due to the viral spread of digital media, rights holders are attempting to use technology to prohibit what technology also allows - reproduction.
   

What is your stance on DRM?

1. It is silly. It is nonsensical. It is dangerous. Copyright law was never designed to be black and white. That is, it is a complicated set of statutory designations and suggestions of precedence. Unlike physical property where the good is exclusively used by one party, intellectual property (IP) is non-rivalrous. While I cannot use the same bicycle as you, we can certainly both use an idea. Thomas Jefferson recognized this when he analogized IP to a flame: when I light your torch with mine, my flame does not diminish. DRM, however, is a intrinsically binary solution. It is black and white whereas copyright is gray.
   

How do you think DRM affects the advancement of our digital society?

1. It presents a danger to nearly every field of endeavor. Cory Doctorow wrote a great piece where he points out that it is a technological impossibility to make a byte any less 'copiable'. It is their nature to be copied. The Internet is just a system of reproducing 1s and 0s locally after requesting them from a distant server. Every single DRM system that has ever been designed has been opened. I think a good analogy which I just thought of is that of water. DRM may freeze it and stop the flow of water (information/content) for a while, but it will melt (be cracked) eventually.
   

Should DRM be made illegal?

1. I am usually hesitant to involve government in industry. I think business realities of the new century will demonstrate that DRM is just tilting at windmills. However, the danger to history of locking information in proprietary formats is a real one. Further, as a proponent of the free market, I worry that DRM prohibits the vast majority of consumers, who have no knowledge of freeing their material, from choosing the products they desire. The music I purchase on iTunes will not play on anything but an iPod unless I break the law and break the DRM. Do you really think the iPod will be your music player of choice for the rest of your life? I sure as hell don't and I want my music to play on whatever I wanted. So, perhaps government intervention in cases of monopoly are worthwhile, but writing a law to prohibit digital "locks" without prohibiting necessary security features will be a tedious and tricky job which, quite frankly, Washington, D.C. is not up to.
   

Is DRM appropriate in any situation?

1. In its common usage, I would be hard pressed to find a reason. The truth of the story is that the content owners are scared and they have high-billing lawyers whispering in their ear at every turn. When the MBAs recognize that the JDs aren't improving their bottom line, DRM will fade.

• What about the DMCA?

1. The DMCA is one of the most ill conceived laws in recent history. Its anti-circumvention portion shows just how much certain Congresspeople are willing to shill for campaign donations. It makes it illegal for people to circumvent DRM even if it is for legal purposes. Since when has our legal system not taken into account intent!? Say, for example, I wanted to remove the DRM on a movie in order to produce a satire. This would be completely legal as the use is a fair one. Fair use is the best example of how copyright law is gray. It allows people to use copyrighted material as long as it is a "fair use" (this is a more in depth legal question which I will save for later, but satire counts). This threatens news reporting, the arts and scholarship -- all of which rely on fair use.

• What can be done?

1. I think time will do a lot to solve this problem, but at the same time, people must be aware of this issue. The Free Software Foundation's campaign called Defective by Design is doing some high profile demonstrations against DRM to raise consumer awareness. People need to know why their iPod is malfunctioning. People need to know why you can't skip those aggravating previews on the DVD you legally purchased. Further, I think technologists need to unify in lobbying so that our voice is heard on Capitol Hill.

Some Links on Viacom v. Google

I have plenty in my link blog...

...but of particular note are:

The actual complaint, available here.

And IP Democracy's take. They point out that there is little actual law in the complaint. Something they call "fluffy." Now, I have not read tons of legal complaints, but how many use news stories as legal fact? I can tell you one does...

Viacom Sues Google/YouTube for $1 Billion

Just in - Viacom, who recently sent 100,000 DMCA notices to YouTube, has now sued Google and YouTube for $1 billion. They contend that more than 160,000 infringing videos are available and have been viewed more than 1.5 billion times.

A while back, rumor had it that Viacom was going to strike a deal with Joost. Perhaps they think it needs to be exclusive.

Gilberto Gil - Leading Brazil towards Reasonable Copyright

Gilberto Gil is a neat guy - he is a hugely popular musician turned Minister of Culture for Brazil. He introduced Creative Commons to Brazil and has generally recognized that IP needs to evolve in a digital world.

In a New York Times article about him today, it covers his growth and gives some clear examples of how music and culture struggle against copyright.

“I think we are moving rapidly toward the obsolescence and eventual disappearance of a single traditional model and its replacement by others that are hybrids,” Mr. Gil said in a February interview at his home here in northeast Brazil, one day before the start of Carnival. “My personal view is that digital culture brings with it a new idea of intellectual property, and that this new culture of sharing can and should inform government policies..." Mr. Gil’s complaints about the inequities of copyrights are derived in part from his own experience. Like many other musicians he signed contracts early in his career that essentially gave away publishing rights to the songs he wrote. But he waged a seven-year court battle to regain his rights, which ended recently with a favorable ruling that opens the door for other Brazilian artists to regain their rights as well.

What's Wrong with my iPod?

Here's a short documentary on DRM's relationship with iPod's. This is especially relevant considering Jobs's recent musing.



Watch the Video


[Via]

Doctorow School USC in Copyright Law

Cory Doctorow is currently a visiting professor at the University of Southern California. This is an incredible opportunity for those students to learn from him, but today the school's administration got a little lesson of their own.

In response to the RIAA's increased effort to stop p2p on college campuses, the USC administration sent an email to all students. The letter was filled with half-truths, important omissions and dreadful scare-tactics (in much the same manner as this and this).

Doctorow has posted an annotated of the letter correcting the travesties.

One of the most audacious claims in the letter is:

As an academic institution, USC's purpose is to promote and foster the creation and lawful use of intellectual property.

Can you believe an educator said this? As Doctorow points out, if this were true, USC's success would be measured on the number of patents and copyrights it holds, not the number of students who receive an education and create works of scholarship.

If I were a graduate or student at USC, they would be receiving a scathing letter of my own...

Microsoft vs. Google - A Fight for Content

Microsoft attorney Tom Rubin spoke to the American Associate of Publishers today and lambasted Google's approach to copyright and content search. I come down heavily on the side of honesty, forward-thinking and transparency in this debate. Instead of adding more saturation to the blogosphere's echochamber, I want to point you to two good posts on the subject:

1. Tim O'Reilly, publisher and Web icon, clearly states what he has for a while - search is an essential evolution of traditional publishing and does not pose a unwarranted threat to the AAP.
   
2. Google watcher Danny Sullivan of Search Engine Land picks apart Rubin's claims one by one. It makes you wonder if Rubin knew how dishonest his PR move was.
   

Knock, Knock... House-Keeping!

I try to post everyday, but sometimes the realities of life make it impossible for me to do so. However, that isn't to say Copyrightings is dormant!

Everyday, I share good stories and developments in the left-hand sidebar under the "Copyright Links" header. I think you will find the content worthy of your time. It is available for RSS subscription here.

Also, ArsTechnica recently redesigned their site and it is awesome. The same style which I love is still there, but the navigation has been greatly enhanced. I often followed links to their stories, but never found them from the homepage. Now, the site is user-friendly and still has up-to-date news and analysis. Check out the "Law and Disorder" tab for Copyrightings' subject matter.

Foxtrot Slams the RIAA

Click image to see it full size.

RIAA - Turn Yourself In and We'll Give You a Discount

In the newest attack on peer-to-peer networks and the American consumer, the RIAA has set up a website and asked college students to turn themselves in. According to the letters sent to students at schools ranging from USC to Ohio State, the RIAA will seek a settlement with the students instead of suing them.

This intimidation is an easy way for the RIAA to receive admissions from the students and to get the data that they would normally need a court order to receive.

Xeni Jardin of BoingBoing has an NPR report available here.

Are you one of these students? Let us know your experience in the comments or by emailing me at kevin (at) copyrightings.com.

(Remember, boycott the RIAA this month!)