Tag Archives: copyright

A call for copyright reform

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Kudos to David Freddoso of the Washington Examiner, who yesterday called for copyright reform:

[P]art of the problem is that current copyright law is ambiguous about what constitutes “fair use.” Congress could put an end to this gaming of the legal system by rectifying this. It’s something that House Judiciary Chairman Lamar Smith, R-Tex., should seriously consider.

In justifying his call to action, David cites activities by Righthaven, highlighting the chilling effect copyright trolls have even on established media players like the Examiner:

Throughout the Reid-Angle Senate race in Nevada, we were scared to death to quote or link to anything at the Las Vegas Review Journal (dare I even post something with their name in it?) because they have farmed out copyright infringement to a serial lawsuit abuser.

When a conservative-leaning newspaper with a subscription to the Associated Press is afraid “to quote or link” to another U.S. newspaper for fear of a copyright infringement lawsuit, you know that the current system isn’t working.

Update: Bloggers are pretty scared of Righthaven too.  That’s why the Media Bloggers Association (official website) has filed an amicus brief on behalf of a hapless Righthaven defendant.  (Thanks to TechDirt for the doc and further analysis.)

“Singing”

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Is there something in the hyperspace? William Shatner, best known for his portrayal of Captain Kirk on Star Trek, is rather infamous for his spoken-song style. Now TechDirt draws our attention to James Earl Jones, who gave voice to Darth Vader in Star Wars, who is apparently jumping in on the act:

the great actor James Earl Jones recites some Justin Bieber lyrics while a guest on the Gayle King Show.

Here’s a direct link to the YouTube video.

As TechDirt’s Mike Masnick asks,

So here’s a simple question: is this copyright infringement? Did the Gayle King Show properly license the lyrics from the copyright holder? Perhaps it did, but we’ve seen music publishers get pretty worked up about various websites posting lyrics online and have heard stories about books not being able to be published because they quoted snippets of lyrics without a license.

Assuming fair use is off the table, I don’t think JEJ’s recitation qualifies for the compulsory license provisions of U.S. copyright law because he was performing on TV — he would have needed a synchronization license.  Moreover, according to 17 U.S.C. section 115(a)(2):

A compulsory license includes the privilege of making a musical arrangement of the work to the extent necessary to conform it to the style or manner of interpretation of the performance involved, but the arrangement shall not change the basic melody or fundamental character of the work, and shall not be subject to protection as a derivative work under this title, except with the express consent of the copyright owner. [emphasis added]

I think we can all agree that JEJ changed the basic melody of this work.

Of course, there is no doubt a simpler explanation for all this.  Bieber’s song “Baby” is repped by ASCAP, and ASCAP offers blanket licenses that allow for TV broadcasts of their works.  I’m guessing the Gayle King Show (or, more likely, the Oprah Winfrey Network) simply paid the requisite fees.

They do hold it against you

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Britney Spears may not want anyone to “Hold It Against Me” according to her latest single, but the U.K.’s Daily Mail is reporting that Bellamy Brothers [Wikipedia backgrounder] are considering a lawsuit against the pop star:

Britney is accused of ‘ripping off’ the rock ballad If I Said You Had A Beautiful Body Would You Hold It Against Me by the Bellamy Brothers.

The American singers claim Britney’s song is too close to their own 1979 hit which topped the charts in six countries, and David and Howard Bellamy are set to met with lawyers, according to reports.

The Daily Mail has embedded two YouTube videos at the bottom of their article if you want to compare the two songs directly for yourself.

My personal opinion is that the songs have little in common besides two scène à faire concepts endemic to popular love songs:  (1) “I want you badly/physically.”  (2) “Please don’t hate me for (1), aforementioned.”  Is the mere fact that both are invoked in rapid succession really enough to establish copyright infringement?  To be sure, Britney uses the the same “hold it against me” phrase that the Bellamy Brothers use, but does that extremely short phrase even have enough originality to establish copyrightability?

Notwithstanding all this, my guess is that the (albeit small) legal risk of losing may be more than the label wants to deal with.  After all, American courts have found that even subconscious copying is enough to infringe (and against a former Beatle, no less!).  More to the point, there would be substantial legal defense costs for Britney’s label, win or lose.  Rational decision:  give the Brothers a quiet, out-of-court settlement just to make them go away.

Update 2/21/2011: In the comments, Jennifer points out that the chorus in Survivor’s “I Can’t Hold Back” is also incredibly similar to Spears’ single (YouTube link). I agree — frankly, it seems a lot closer to me than to the Bellamy Brothers song.

However, my response to this line of argument is, “so what?” As several comedians have pointed out, pop songs are notoriously one-dimensional, consisting of endless iterations of Pachabel’s Canon in D and/or four chords. When it comes right down to it, drawing lines between where one song starts and another stops is nearly impossible, which is why academic musicologists often end up as expert witnesses at music infringement trials (billing several hundreds of dollars per hour — a pretty good gig).

This is a fundamental problem with a legal system that considers copyrights “property” in the same sense that, say, land is “property”. For the most part, land’s boundaries are clear/definable, and one can know if one has trespassed. But how can one know (with anything approaching certainty) that one has trespassed/infringed a copyright? The lines are inherently abstract, vague, and therefore subject to debate.

Upshot: a zealous (and deep pocketed) copyright owner ends up owning more. An overzealous landowner may sue anyone and everyone who so much as puts a toe over her property line, but her vigorous defense of her property boundaries does not change where those lines actually are. But this is arguably not the case with the overzealous copyright owner. With copyright, defense becomes offense and the copyright’s limits actually expand as the public starts giving copyright owners a wider and wider berth. There are all-too-many examples of this documented over at Chilling Effects.

Update 2/22/2011:  According to a post over at the ABA Journal, here comes the aforementioned expert, right on cue:

A “renowned musicologist” is evaluating the two songs, [Bellamy Brothers laywer Christopher] Schmidt says….

China and default

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No, I’m not talking about the U.S. defaulting on the enormous amount of debt it owes to China.  I’m talking about the relatively small matter of $2.3 billion that a California district judge levied against China as a sovereign government for copyright infringement. As part of a default judgment, no less:

About a year after Cybersitter sued the Chinese government and several Asian OEMs for allegedly copying its code to create the “Green Dam” software, a U.S. federal judge has allowed the $2.3 billion suit to proceed.

Judge Josephine Staton Tucker, a California district judge, entered a judgement of default against the People’s Republic of China on Wednesday, after PRC officials failed to respond to the ruling. Although the PRC’s embassy sent a letter to the U.S. State Department protesting Cybersitter’s suit, such a letter did not qualify as a formal response.

The National Law Journal has additional coverage here.

My guess is that this suit is going to generate a lot of headlines and go absolutely nowhere (at least against China — the co-defendants may not be so lucky).  As a matter of law, China has a powerful argument for sovereign immunity, no matter what District Judge Josephine Tucker’s interpretation of the U.S.’ own Foreign Sovereign Immunities Act (FSIA) is.  And practically speaking, there’s pretty much no way that Cybersitter is going to be able to collect on this default judgment.  No doubt it will be tossed back and forth in official diplomatic communications for a while, but it’s quite doubtful that any money will ever change hands.  Unless, of course, one speaks of the money China will continue to pay the U.S. for Treasuries.

Oh wait…

Dressing up a terrible idea

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Early last week, NPR’s Morning Edition ran a story about the Mardis Gras Indians (Wikipedia backgrounder) who are attempting to copyright their costumes in order to collect money from photographers who take pictures of the festivities in New Orleans.  In the words of Howard Miller of the Creole Wild West Mardi Gras Indians:

For years we had the fear that we have been exploited. They [the photographers] had been taking advantage of us and coming in and snapping pictures. In selling the pictures, we see them everywhere – magazines, even in art galleries being sold and we are not getting anything from it.

Enter Ashlye Keaton, an adjunct law professor at Tulane Law School, who is representing Mr. Miller:

[The costumes] fall under copyright protection as works of art, as sculptures because the designs are sewn onto canvas and other materials and they are worn not as costumes, but they’re worn over clothing. So they’re not functional, which qualifies them for copyright protection as a sculptural work of art pursuant to the copyright act.

Mike Masnick over at TechDirt picked up on this story this morning.  Like me, he thinks this is a terrible idea:

[T]his whole thing goes against the very purpose of copyright law, which was to provide an incentive to create. But these guys have plenty of incentives to create that have nothing to do with copyright. Basically, they’re just upset that someone, somewhere might make money selling a calendar of Mardi Gras photos without paying them first….In the interview, the Mardi Gras Indian they interview makes no argument at all about incentives to create. Instead, he goes with the “I think that’s fair” argument for why photographers should pay him. Well, those photographers don’t think it’s fair — and copyright law is not about what someone thinks is fair. It’s about the incentive to create, and it makes no sense in this context.

Masnick makes a few other points:

  • That costumes are clothing a thus cannot be protected with copyrights.
  • That any photographs of the costumes would be a fair use because they would be “transformative” (citing a case about Grateful Dead concert posters).

I think one of the more pernicious effects of the expansion of intellectual property legal entitlements is that people now think they should be paid any time someone else makes money.  This is simply not the way the world works.  I won’t expand too much on Masnick’s points, but I would like to make a few point of my own about unsolicited benefits.

If I buy a house and put a beautiful garden in the front yard, I may well raise the property values of every house on my street.  Does the law allow me to collect any money from my neighbors?  No.

If I squeegee your windshield without being asked to while you are stuck in traffic, can I demand that you pay me?  No.

To be sure, Mardis Gras provides real benefits to lots of people, and Mr. Miller’s costume no doubt contributes to that general benefit.  As a general rule, however, the law doesn’t reward people just because they provide other people with benefits.  Why?  It’s generally unfair to foist such a responsibility on others (that’s why “squeegee men” are considered such a public nuisance.)  Moreover, it’s way too costly for courts to figure out who should pay who in what amounts after the fact.  Far better to let people strike their own bargains — to pay for communal landscaping through a homeowner’s association or to take their cars to a car wash.

If the Mardis Gras Indians want payment from their costumes, they have plenty of options.  They can:

  • collect donations.
  • look for a corporate sponsor, sell advertising, and/or give commercial endorsements.
  • sell their costumes to others.
  • perform in a private parade (with paid tickets).

What they can’t do, however, is simply take those costumes, walk down a public street in a free parade open to the public, and expect to be paid for it.  It just doesn’t work that way.

A $4000 mistake

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Talk about turning lemons into lemonade.  A Canadian-based copywriting firm is attempting to parlay a very expensive mistake into favorable publicity:

“Like many other creative types in the web industry, our copywriters were not clear on image copyright laws, and we were taught an expensive lesson,” said Rick Sloboda, Senior Web Copywriter at Webcopyplus, which provides designers and businesses optimized web content. “We’re sharing our story, so others can learn from our experience and avoid the same mistake.”

In May, 2010, with the assumption Web images without copyright notices were “public domain” and free to use, a Webcopyplus copywriter used Google images to find an unmarked 400 x 300 pixel scenic photo to complement an article for a tourism client’s blog.

Webcopyplus has posted additional details on their blog, as well as some resources for obtaining stock photography in a way that won’t get one sued (including Creative Commons photos available via Flickr).

Copyright squared

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There’s a new trend afoot to take the “notice” out of the Digital Millennium Copyright Act’s (DMCA’s) “notice and takedown” procedures:

The company is claiming that the DMCA takedown notice itself is copyrighted and that passing it along will constitute infringement. Of course, this raises some questions.

It does indeed.  For those of you unfamiliar with the DMCA’s notice and takedown procedures, they are a safe harbor that Congress wrote into the DMCA to shield service providers from certain types of copyright infringement suits.  ChillingEffects has this helpful explanation in their FAQ’s:

In order to have an allegedly infringing web site removed from a service provider’s network, or to have access to an allegedly infringing website disabled, the copyright owner must provide notice to the service provider with the following information:

  • The name, address, and electronic signature of the complaining party [512(c)(3)(A)(i)]
  • The infringing materials and their Internet location [512(c)(3)(A)(ii-iii)], or if the service provider is an “information location tool” such as a search engine, the reference or link to the infringing materials [512(d)(3)].
  • Sufficient information to identify the copyrighted works [512(c)(3)(A)(iv)].
  • A statement by the owner that it has a good faith belief that there is no legal basis for the use of the materials complained of [512(c)(3)(A)(v)].
  • A statement of the accuracy of the notice and, under penalty of perjury, that the complaining party is authorized to act on the behalf of the owner [512(c)(3)(A)(vi)].

Once notice is given to the service provider, or in circumstances where the service provider discovers the infringing material itself, it is required to expeditiously remove, or disable access to, the material. The safe harbor provisions do not require the service provider to notify the individual responsible for the allegedly infringing material before it has been removed, but they do require notification after the material is removed.

In his analysis, Mike Masnick notes a few of the problems with claiming copyright protection in DMCA takedown notices, particularly issues of authorship (“who owns the copyright”) and registration (“did whoever write this letter actually register it with the Copyright Office?”).  Of course, there are other problems to consider:

  1. First Amendment.  Do we really live in a world in which individuals can be subjected to legal process but cannot talk about what is happening to them?
  2. Fair use.  Among other things, isn’t the posting of DMCA notices transformative?  Is there any market effect that the law cares about?  Or is this like the proverbial “scathing theater review” that Justice Souter said “kills demand for the original” but “does not produce a harm cognizable under the Copyright Act”?  Campbell v. Acuff-Rose Music, Inc., 510 US 569, 591-92 (1994).

It seems to me that if (1) you’re a copyright owner and (2) you think someone is infringing your rights and (3) you want it to stop but (4) you also want to keep it your little secret and not let anyone else in the world know other than the alleged infringer, then you should maybe reconsider (2), because the fact that you are insisting on (4) may indicate that (2) isn’t actually true.

Just a thought.

The land of 100,000 lawsuits

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Some enterprising anonymous researcher has determined that almost 100,000 copyright infringement lawsuits have been filed in the U.S. in the past year:

In the United States the judicial system is currently being overloaded with new cases, but the scope of the issue was never really clear until now. An anonymous TorrentFreak reader has spent months compiling a complete overview of all the mass P2P lawsuits that have been filed in the US since the beginning of 2010, listing all the relevant case documents and people involved in a giant spreadsheet.

The research shows that between 8th January 2010 and 21st January 2011, a total of 99,924 individuals have been sued. The vast majority of the defendants have allegedly used BitTorrent to share copyrighted works but a few hundred ed2k users are also included.

Of the 80 cases that were filed originally, 68 are still active, with 70,914 defendants still in jeopardy.

The raw data is available is spreadsheet form over on Google Docs.

As the disparity between 80 and 70,914 indicates, these types of lawsuits completely overwhelm the courts.  The U.S. justice system is simply not set up to handle this kind of volume, especially for suits as notoriously tricky to argue as copyright infringement.

Copyright law: broken, summarized.

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If you want a 37 minute, highly informative summary (with visuals!) of:
1. the current state of copyright law and
2. what I think is wrong with it and
3. (at least some of) what should be done to fix it,
…then you should check out the address Lawrence Lessig (a Harvard Law professor) made to the World Intellectual Property Organization (WIPO) a few days ago.

Bonus: you won’t incur student loans learning this information (like I did over the last 3 years).
http://www.youtube-nocookie.com/v/L5Texgpm520?fs=1&hl=en_US

Strong copyright enforcement in a corrupt world

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There is an ongoing scholarly debate within U.S. legal circles about just how vigorously copyright violations should be pursued and punished.  In the U.S., this debate often takes the form of whether 6- or 7-figure judgments should be levied against single moms or 20-something grad students who copy music.

In more authoritarian countries, however, the stakes for alleged copyright infringers are often much higher.  Clifford J. Levy over at the New York Times recently posted this interesting piece entitled “Russia Uses Microsoft to Suppress Dissent” highlighting the plight of an environmental group which

fell victim to one of the [Russian] authorities’ newest tactics for quelling dissent: confiscating computers under the pretext of searching for pirated Microsoft software.

Across Russia, the security services have carried out dozens of similar raids against outspoken advocacy groups or opposition newspapers in recent years. Security officials say the inquiries reflect their concern about software piracy, which is rampant in Russia. Yet they rarely if ever carry out raids against advocacy groups or news organizations that back the government.

Such self-serving enforcement will always be a danger in copyright enforcement.  Copyrights protect non-rivalrous goods:  users can duplicate a copyrighted work without disturbing the author’s own enjoyment of the work.  This is in direct contrast to tangible property, which is rivalrous:  if I steal your laptop, I now benefit from your laptop and you suffer from its lack.  Put another way, my theft of a rivalrous good has not created two laptops the way (illegally) copying a non-rivalrous good (say, Windows 7) creates two fully functional copies.

This is not to say, of course, that copyright owners are not harmed when their works are pirated.  Indeed, owners do lose revenue to the extent that, in a parallel universe without the piracy, they might have been paid for the additional copies of their work (assuming the now non-existent pirate prefers to pay the market price rather than simply to go without).  Many scholars argue that copyright exists precisely to allow authors to benefit fully from every copy made of their works.

It is important to remember, however, that such vigorous protection comes at a privacy cost.  If I steal your laptop, a physical act has occurred that leaves you tangibly and noticeably poorer, and the police have something specific (i.e., a laptop) to recover.  If I copy Windows 7, no physical act of theft need occur (perhaps I obtained the first copy from Microsoft legitimately), and the police have nothing concrete to pursue.

As a result, law enforcement is left with two broad strategies when pursuing copyright infringement:  (1) incentivizing whistleblowers and (2) conducting fishing expeditions.  Within the U.S., (1) is encouraged and (2) is usually legally suspect.  In countries with fewer legal protections and more corruption, however, (2) presents a convenient excuse for harassment and intimidation whenever needed.  Robust copyright enforcement in such a context thus comes at an astronomically high privacy cost.