Tag Archives: fair use

The Freakonomics of fair use

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The NYTimes’ Freakonomics blog uses the subject of poetry criticism to tackle fair use:

In a recent article, the poetry critic of the New York Times complained that to do poetry criticism right, it’s often necessary to quote extensively from a poem. Indeed, in the case of a short poem, it might be helpful to readers to copy the whole thing. But, the critic said, this can’t be done because it might run afoul of copyright law.

It is true that copyright law prohibits the unauthorized copying of any substantial part of someone’s poem, song, or other work.…Is this a good policy?  From an economic perspective, no.

The reason this is bad policy, however widely discussed, bears repeating:

Use of a small bit of someone else’s creative work to build a new creative work rarely harms the economic interests of the first copyright owner, because most “derivative” works do not directly compete with the original.

Every creator builds on what came before, and such building usually doesn’t “compete” with that earlier work in any economic sense.  Creating legal fear and uncertainty about building on the past, however, is quite effective in limiting the creation of new works in the present.

Righthaven “nearing bankruptcy”

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I was suspicious several days ago when I heard that Righthaven might be going under, but apparently it’s true:

The Las Vegas copyright-trolling firm Righthaven told a Nevada federal judge Friday it might file for bankruptcy protection, or cease operations altogether.

To prevent that, Righthaven is asking U.S. District Judge Philip Pro to stay his decision requiring Righthaven pay $34,000 in legal fees to an online commenter it wrongly sued for infringement.

Wired has posted Righthaven’s Motion to Stay here (pdf).  They are exceptionally candid about the economics of copyright troll litigation:

In Colorado, 35 Righthaven copyright infringement cases have been stayed since May 19, 2011 pending a ruling on whether the company has standing to maintain these actions. Likewise, ten infringement actions, most of which involve an amended version of the SAA that addresses the concerns expressed by this Court in its subject matter decision, have been stayed in this District until a standing determination is made. Thus, Righthaven has been precluded from actively litigating and resolving the stayed cases. Moreover, Righthaven has delayed filing new copyright enforcement actions until a standing determination is made based upon the terms of the currently operative version of the SAA. Throughout this period, and despite a lack of incoming revenue given that numerous pending action are stayed, Righthaven has continued to incur operating expenses.

Clearly, Righthaven is a cash-poor outlet these days.  And here’s where things get really interesting:  based on its motion, Righthaven seems deathly afraid that they might have to sell some of their assets to satisfy a $34,000 judgment.  As they explain to the court:

Righthaven also has significant proprietary rights in its copyright infringement search engine software (the “Software”), which plays an integral role in the company’s operations. If a stay is not granted pending appeal, this valuable Software may be seized and liquidated in an attempt to satisfy the Judgment. Liquidation may result in the Software being sold to a competing organization or entity.

Talk about woeful undercapitalization.  A $34,000 judgment is going to force them into selling off their core business assets?  Really?

Righthaven always presented defendants in its copyright litigation with an unfair dilemma:

(1) pay out a few thousand in “go away” money now, or
(2) mount an actual legal defense (at an initial, minimum cost of a few thousand, with no guarantees that things would work out well).

It seems that Righthaven now faces a dilemma of its own:

(1) raise enough capital to pay off this $34,000 pending appeal, or
(2) go bankrupt.

The difference, of course, is that the dilemma Righthaven faces is fair.  They put defendants to the expense of hiring lawyers.  Some of those defendants won.  The law says that those winning defendants should have their legal expenses paid by Righthaven.  Sounds about right to me.  If Righthaven can’t afford to pay without selling assets, perhaps they never should have been filing lawsuits in the first place.

Righthaven losing that rocky mountain high

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I noted yesterday that copyright troll Righthaven hasn’t filed any new lawsuits in the past two months, but I was suspicious that it was all over.  After reading Wired’s coverage today, however, I think Righthaven’s end is near:

The new chief executive of MediaNews Group, publisher of the Denver Post and 50 other newspapers, said it was “a dumb idea” for the nation’s second-largest newspaper chain to sign up with copyright troll Righthaven.…

“The issues about copyright are real,” [John] Paton told Wired.com in a telephone interview. “But the idea that you would hire someone on an — essentially — success fee to run around and sue people at will who may or may not have infringed as a way of protecting yourself … does not reflect how news is created and disseminated in the modern world.”

I stand corrected.  Barring a court-ordered miracle, it seems only a matter of time before Righthaven closes up shop.

Mr. Google, take down this content

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Google’s default response to possible copyright infringement on YouTube is surprisingly mechanical and far from perfect.  Consider TMZ’s recent report on the hapless Justin Bieber and his ubiquitous YouTube music videos:

Justin Bieber has been victimized by a brand new cyber-enemy … an enemy who found a way to get every single one of JB’s official music videos REMOVED from YouTube….YouTube has a yank first, ask questions later policy when a copyright claim is made — so they simply pulled the videos off the site … until the dispute is resolved.

Of course, there are myriad problems with such a system, as Ernesto over TorrentFreak elaborates:

YouTube describes its Content-ID anti-piracy filter as a state-of-the-art technology, but those who look closely can see that in some cases it creates a huge mess. The system invites swindlers to claim copyright on other people’s videos and make money off them through ads. It automatically assigns thousands of videos to people who don’t hold the copyrights, and its take-down process appears to be hugely biased towards copyright holders.…

Content-ID allows rightsholders to upload the videos and music they own to a central ‘fingerprint’ database. YouTube will then scan their site for full or partial matches, and if there is a hit the copyright holder can automatically take it down, or decide to put their ads on it.

Although the above sounds like a fair and honest solution, not everything Content-ID does goes to plan.…One of the problems appears to be that people with bad intentions can claim copyright on videos they have nothing to do with, and even run ads on them. In the YouTube support forums there are hundreds of posts about this phenomenon…[although] most of the “misattribution” problems seem to be the result of screwups and technical limitations.

As Ernesto notes in passing, there is supposed to be an opportunity to counter a takedown request under the Digital Millennium Copyright Act (DMCA).  Unfortunately, Google’s Content-ID system doesn’t work this way, as Patrick McKay of FairUseYouTube.org elaborates:

Instead of requiring copyright owners to file a formal DMCA notice in response to a Content ID dispute, thus allowing users to invoke the DMCA counter-notice process, YouTube allows copyright owners to somehow “confirm” their copyright claim through the Convent ID system and re-impose whatever blocks were originally in place through Content ID. In this case, a message will appear on the user’s “View Copyright Info” page for that video saying, “All content owners have reviewed your video and confirmed their claims to some or all of its content.” After this, as far as I can tell, there is absolutely no way for the user to file a dispute and get their video restored.

Certainly, Google is under no legal obligation to provide video distribution services to anyone who asks for them no matter how contentious the content’s ownership.  At the end of the day, Google is a business, and dealing with the minutia of these copyright ownership disputes is expensive.  It’s obvious why Google wants to bow out of the fight as early (and cheaply) as possible.

Nonetheless, it is extremely troubling that Google is silencing some users’ speech without allowing them to defend (at their own risk and expense) legal rights provided under the DMCA.

YouTube’s copyright school

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In an apparent bid to prevent one-time copyright infringers from becoming two-timers (or more), YouTube has created a 4 minute and 39 second copyright school on its website, as explained on the official YouTube blog:

Because copyright law can be complicated, education is critical to ensure that our users understand the rules and continue to play by them. That’s why today we’re releasing a new tutorial on copyright and a redesigned copyright help center. We’re also making two changes to our copyright process to be sure that our users understand the rules, and that users who abide by those rules can remain active on the site.

If we receive a copyright notification for one of your videos, you’ll now be required to attend “YouTube Copyright School,” which involves watching a copyright tutorial and passing a quiz to show that you’ve paid attention and understood the content before uploading more content to YouTube.

Ray Dowd over at the Copyright Litigation Blog is not a fan, noting that Google:

  • fails to mention the existence of the public domain;
  • states that “[i]f you are uncertain as to whether a specific use qualifies as a fair use, you should consult a qualified copyright attorney”; and
  • fails to mention the Constitutional purpose of copyright law.

I have to agree with Ray.  The video’s section on fair use (direct link) is particularly egregious.  Unlike the rest of the video, this section adopts the sped-up vocal “style” often adopted at the end of radio commercials to breeze through legal disclaimers (e.g., “Sweepstakes only open to U.S. residents 18 or older…”)  How is this even attempting to educate and inform?

Far from providing a balanced view of copyright law, YouTube’s clear, bottom-line message is this:  Don’t remix or even approach the fair use line.  This is certainly one vision of copyright law, but there are others.  I am reminded of Christina Mulligan’s excellent blog post last June that looked at contemporary copyright law through the lens of Fox’s hit show Glee:

The absence of any mention of copyright law in Glee illustrates a painful tension in American culture. While copyright holders assert that copyright violators are “stealing” their “property,” people everywhere are remixing and recreating artistic works for the very same reasons the Glee kids do — to learn about themselves, to become better musicians, to build relationships with friends, and to pay homage to the artists who came before them. Glee’s protagonists — and the writers who created them — see so little wrong with this behavior that the word ‘copyright’ is never even uttered.

Lawrence Lessig makes the related point that such recreations benefit society, pointing to John Phillip Sousa’s early-twentieth-century fear that recorded music would eventually displace amateur performance entirely.

Google is taking a lot of heat from copyright owners these days, and it’s hard to blame them from trying to stave off any accusations of infringement that might eventually stick to Google itself.  Nevertheless, I don’t think their frenetic, one-sided “educational” video is the best solution.

Righthaven drops another case

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Righthaven comes up a lot here at Legally Sociable, and I’ve mentioned their suit against Brian Hill, a 20-year-old blogger with autism and severe diabetes, before.  In another victory for defendants in Righthaven lawsuits, Ars Technica reports that Righthaven is dropping its suit against Brian, after the judge noted that enabling a cheap, easy settlement “is not my primary concern”:

Though the case was moving forward, Righthaven made clear it wasn’t actually interested in litigating the suit; it wanted to settle. “Righthaven is no longer willing to engage in settlement discussions over trivial issues while the Defendant and his counsel seek to extend this action for publicity purposes,” said the company. With settlement not a possibility, the company now just wants the suit to go away. [emphasis added]

Indeed, Righthaven’s lawsuits are starting to drop like flies.  It was just two weeks ago that Righthaven dismissed a suit against the freelance author of another Ars Technica article that covered Righthaven’s litigation antics.  In dropping the suit against Ars’ reporter, Righthaven claimed it was all just a mistake:

“We took immediate corrective action” after learning that Righthaven had just sued a reporter, said [Righthaven lawyer Shawn] Mangano. He added that, since reporters make use of copyright and tend to know a good deal about fair use, “It’s somewhat counterintuitive to sue a reporter for copyright infringement!”

While I certainly applaud Righthaven’s decision to drop these two particularly suits, I have to wonder about the outcomes in the other 260+ lawsuits they have filed over the past year.

Dictionary.com defines “bully” as “a blustering, quarrelsome, overbearing person who habitually badgers and intimidates smaller or weaker people.”  This definition appears to describe Righthaven perfectly; indeed, it is only when a defendant proves not to be “smaller or weaker” that they tuck tail and run.  Clearly, Righthaven didn’t think it was worth fighting a reporter backed by one of the largest magazine publishers in the U.S. or a highly sympathetic blogger with a clearly competent lawyer (PDF).  However laudatory in result, its dismissals in these cases seem to confirm that Righthaven is not truly defending a principled (if overzealous) view of copyright law.  Instead, Righthaven appears to be a garden-variety bully out to shake down the small and weak for four-digit settlements.

Copyright reform, anyone?

Update 4/12/2011:  Joe Mullin at paidContent has additional information about the Hill dismissal:

In a 3-page motion, Righthaven tries to let Hill off the hook but maintains a complainy sort of tone….Judge Kane responded to that by taking another extraordinary action—he actually ordered Righthaven’s “warning” to be stricken from the record entirely, along with all the company’s complaints about Hill’s bad behavior. That part of the filing was “immaterial and impertinent,” Kane wrote. That’s a strong suggestion that Kane has become quite annoyed by Righthaven’s tone and actions in this case.

Wow.  I think I’d be quite worried about sanctions if I were representing Righthaven in this case.

Further reading (hat tip to paidContent):

  • Order Denying Righthaven Extension, April 7 [Scribd]
  • Righthaven Notice of Dismissal, April 10 [Scribd]
  • Order To Strike, April 11 [Scribd]

Documenting fair use

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Documentary.org has a wonderful write-up by Tamsin Rawady and Alex Buono about fair use in the documentary film setting.  As the writers/producers of Bigger Stronger Faster, a documentary about pop cultural influences driving performance-enhancing drug use, they grappled with how to tell their story legally:

The first problem we encountered is that it seemed like Fair Use was sort of an urban legend: Does it really exist? Can you really use archival clips without licensing them? And does anyone understand how this all works?

Fortunately, Rawady and Buono retained excellent legal counsel who were able to walk them through the issues and get them a highly defensible final cut, though even that wasn’t easy:

After the film has been released, expect to get calls from copyright holders upset about your use of their footage. Most copyright holders have never heard of Fair Use, and you should allow some money in your budget to have your attorney call and talk through the evidence you have. If you have been responsible in your Fair Use decisions, most complaints will only require one phone call from your attorney to make them go away. We encountered a handful of copyright holders from some very large corporations who were not pleased that their clips had been used in our film, but we were well prepared by our attorneys and had no problem avoiding any legal claims. [emphasis added]

I’m certainly happy that it worked out better for Bigger Faster Stronger than it did for Slaying the Dragon:  Reloaded.  Rawady and Buono’s story reminds us that, in law as in life, (1) an ounce of prevention is often worth a pound of cure and (2) the best (fair use) defense is a good (proactive) offense.

Further resources and reading:

The fair use dragon

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Justin Levine over at Against Monopoly points us to a controversy at the recent San Francisco International Asian American Film Festival and reminds us that many content owners believe that fair use in U.S. copyright law is about as real as a mythical fire-breathing creature.

John Diaz of the San Francisco Chronicle explains:

"Slaying the Dragon: Reloaded," a compelling new documentary that critiques the portrayal of Asian women in U.S. visual media, has drawn protests from an unlikely quarter. It wasn’t from Hollywood, which was deservedly scoured for its depiction of Asian women in films from "Rush Hour 2" to "Sex and the City." It wasn’t from conservative commentators claiming political correctness run amok.

Instead, the objection to the documentary by Elaine Kim, a UC Berkeley professor of Asian American studies, emerged from six Asian American filmmakers just before its premiere last week at the San Francisco International Asian American Film Festival. Their complaint: that she used clips of their work without seeking their permission.

Never mind that fair use is written into the copyright statute and explicitly allows for “criticism” and “comment” and “scholarship.”  Never mind that Kim’s documentary seems to fall well within the guidelines laid out by the Documentary Filmmakers’ Statement of Best Practices in Fair Use – and that four separate companies write errors-and-omissions insurance for filmmakers based on the Statement guidelines.

No, the owners of films being criticized by Kim want to get paid:

The documentary addresses images of Asian American women in film, and while that is a worthy subject for a documentary and we respect Ms. Kim’s skills, as filmmakers, we do not consider this "fair use." Every filmmaker knows that he or she has to ask permission before using any intellectual property not belonging to him/her.

Using a clip of our films for review or promotional purposes is standard; however, using it in a documentary to illustrate that filmmaker’s point of view is a creative choice by the documentarian and therefore not subject to fair use.…We feel that Ms. Kim should either license our film footage properly for use in her documentary or remove it before the documentary’s world premiere at the upcoming San Francisco International Asian American Film Festival.

The Chronicle reporter was shocked, though readers of this blog shouldn’t be (unfortunately):

For me, as a journalist and champion of free expression, the upshot seemed clear: You cannot give the targets of social commentary the ability to veto it. Does anyone think for a second that the copyright holders of "Rush Hour 2" [which includes a scene where Chris Tucker and Jackie Chan are presented with a buffet of scantily clad Asian women] would consent to allow scenes of that movie to appear in Kim’s documentary at any price?

Kim did end up screening the movie at the festival, but

Kim deleted the clip from "The People I’ve Slept With."

"We did not remove the clip because we were concerned it was not fair use," Kim emphasized in an e-mail. "We removed it because we do not have the time or resources to fight against a filmmaker that personally attacked us and was being unreasonable."

Given the brutal economic and personal realities of litigation, Kim probably made the “right” choice.  Even if she found lawyers to represent her for free, fighting this in court would probably consume a large portion of her personal time and energy for years.  I certainly don’t blame her for her apparently rational choice.

Nevertheless, let us be clear:  this is what happens when copyright law is written to give one side (i.e., copyright owners) sweepingly clear rights but the other side (i.e., fair users) only an amorphous defense.  You don’t get copyright as “an engine of free expression”, as the Supreme Court continues to think.  You get censorship by people who think that fair use is a fairy tale.

Living by the sword

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I’ve covered the antics of Righthaven, a copyright-enforcement entity that sues first and asks questions later, before.  From their activities over the past year, it seems clear that Righthaven thinks (at least, it loudly says) it fighting the good fight by vigorously enforcing copyrights in news stories.

Ironically, Steve Green at the Las Vegas Sun thinks that Righthaven is undermining newspapers’ case for copyright protection:

One year ago, U.S. newspapers and broadcasters could feel confident they controlled the news content they created….Then along came Righthaven LLC of Las Vegas, the self-appointed protector of the newspaper industry from such news sharers.

Some 250 Righthaven lawsuits later, Righthaven’s startling achievement is that newspapers now have less — not more — protection from copyright infringers.

Steve’s full analysis is well worth reading, as is his cogent summary of highlights from recent Righthaven-related cases.

Personally, I find this idea that Righthaven may be hurting copyright owners more than helping quite compelling.  Copyright law is often ambiguous, and the precise line between infringement and fair use is unclear.  Whatever else can be said about the merits of a typical Righthaven lawsuit, the sheer number of cases is forcing courts to take a hard look at the policies underlying copyright law and to provide some much-needed clarity.  Insofar as Righthaven’s tactics are, in practice, little better than bullying, judges seem to be doing every thing they can to skew that clarity in favor of Righthaven defendants — and away from established news publishers.

It is ironic that Righthaven’s own actions are starting to set precedents that are undermining the legal foundations for copyright’s protection of news stories.  If I were a publisher with an expansive view of copyright law, I’d be furious at Righthaven.

Fair comment

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A mea culpa note: I originally wrote this post about a week ago.  At that time, I thought that SF360 was moderating their comments and not approving mine, for reasons that I implied might have something to do with the policy position of my remarks.  I was wrong — there was an innocuous, technical reason that my comment did not post.  Thanks to SF360’s editor Susan Gerhard for helping me get my comment up, and my most sincere apologies to her and everyone at SF360.  I made a mistake, and I thank Susan for being so gracious in the way that she corrected me.

***

I made a comment recently on a SF360 article titled “What you Need to Know to License Music for Film”.  Here is the relevant bit of the article that I was addressing:

Licensing can be a complicated, frustrating process. Yet, the copyright owners have exclusive rights over the music and using the music in a film will generally not be considered a fair use. Therefore, to avoid litigation a filmmaker must acquire the necessary licenses before including any music in their film. [emphasis added]

As I wrote in my comment, this characterization of fair use is, at best, highly misleading:

George [Rush, who wrote the article] says that “the copyright owners have exclusive rights over the music and using the music in a film will generally not be considered a fair use.”  This is simply not true; there are a lot of uses of music in films — particularly documentary films — that can be considered fair use.  There is a Documentary Filmmakers’ Statement of Best Practices in Fair Use, and there are even companies that issue errors and omissions insurance based on fair use claims.

Before using any music in your film, you should definitely seek legal counsel.  But don’t assume that you *always* have to license music.  Despite the grumblings of music labels, fair use still exists.

George is right that the issues are complicated and that sometimes hiring a professional (like him) to help negotiate various music licenses is the proper way to proceed.  But that’s not always true.