I wasn’t planning any posts this weekend–I have a biggie coming up Monday–but, geez,
Go watch it.
I wasn’t planning any posts this weekend–I have a biggie coming up Monday–but, geez,
Go watch it.
A quick post because a C&I copyright essay’s not likely for at least a month or two…and because today’s SF Chronicle TV column leaves out crucial things, not at all surprising given the writer’s predilections.
Admission up front: I’m no fan of Tim Goodman. We had a great local TV commentator before Hearst bought the Chron. The great TV writer retired. We’re left with…well, Goodman.
Today’s piece is about who’s “right” in the Viacom infringement suit against YouTube. And, big surprise, Goodman says there’s no question: Viacom’s right, YouTube’s wrong, fair use isn’t even an issue. Because, you know, Viacom produces all that Content, while YouTube does nothing but distribute. By implication, nobody watches anything on YouTube except clips pilfered from Big Media productions.
On its own, it’s a seriously muddled column. He says, and I agree, that most people are going to watch most shows on TVs and get them from traditional sources for a very long time to come–that most people don’t much want to watch long-form video on handhelds or cell phones or even PCs. Which, of course, means that YouTube is an attractor for Viacom and friends, to the extent that people watch Big Media stuff on YouTube. He doesn’t really discuss that.
The reason for this quick post, though, is what Goodman leaves entirely out of the lawsuit equation. YouTube’s primary defense isn’t Fair Use (although it possibly could be). It’s the DMCA Safe Harbor provision. One tiny little “pro-consumer” piece of that vastly pro-Big Media bill basically says that digital carriers can’t be held liable for infringement as long as they remove copyright material upon request (and aren’t actively encouraging infringement, and take reasonable efforts to discourage infringement).
YouTube famously removes material as soon as it’s informed that the material infringes copyright–probably without even checking whether that’s a legitimate claim. (Fair use provisions do mean that, in some cases, it’s legitimate for a YouTube video to contain elements of broadcast TV.) In practice, safe harbor provisions favor copyright holders: The digital sites respond immediately to take-down requests, not negotiating the reality.
But, of course, that’s not good enough for Big Media: Now that it has the extreme copyright protections of DMCA, it wants to undermine the balancing clauses. To do so would mean that video-sharing sites would have to require some sort of proof that each uploaded video wasn’t an infringement. Good luck with that. Realistically, Big Media doesn’t want sharing sites to be around, unless it controls them or at least gets paid everytime somebody watches a clip that might be under its control.
Actually, take away the safe harbor provision and every web service that stores any user-generated content is in trouble. Upload a vcast that happens to have the TV or radio on in the background? That could be claimed as copyright infringement (rightly or wrongly). Heck, quote a line of a pop song in a blog entry? Some writers and publishers claim that even a single line of a poem is too much for fair use.
This isn’t new. The Audio Home Recording Act (AHRA) was a pro-copyright compromise, that explicitly legalized copying music digitally from radio (etc.) for your own use, while “rewarding” copyright holders by adding a surcharge to recorders and blank media and distributing that surcharge to copyright holders. That’s why “audio CD-Rs” cost more than data CD-Rs and standalone CD recorders won’t record on data CD-Rs: AHRA.
Now, of course, Big Media’s taking legal action to prevent people from intelligently recording XM or Sirius radio (that is, recording individual songs), claiming it’s copyright infringement and carefully ignoring AHRA. It’s the same bait and switch: Bait an unbalanced law with supposed consumer protections, then switch back to claim that the protection is excessive and either ignore it or try to get it reversed.
I knew MPAA held pretty extravagant views on copyright, fair use, and their “right” to squeeze every last dollar out of major motion pictures, but this one took even me by surprise.
Updated: See Seth Finkelstein’s comment below: Apparently this is satire, but with the MPAA it’s really hard to tell…OK, so if I’d done an “About” at BBSpot… Sigh. Too early in the morning, too worried about a forthcoming trip, too gullible. And the story’s just a little too believable: The mark of good satire. As Emily Littella would say (sp?), “Never mind…”
So a married couple with a 32″ 10-year-old TV with stereo speakers, oh, say, like us, actually has a “home theater” and is “illegally” doing theatrical showings of DVDs because we have two comfy chairs to watch the TV from. And we should have to pay MPAA a registration fee. And our TV should have to report to them what we’re watching at all times.
The natural response is “Are these people out of their friggin’ minds?”
The second response is to say that “theatrical viewing” needs to be legally defined as involving charges or, at the very least, some form of publicity (other than phone calls), so that this sort of c**p will go away.
Next thing, the NFL will say that if you have any friends over to watch football [after all, MPAA’s standard is two or more chairs), you need to pay the commercial license fees that a sportspub would pay.
Some day, the absurd overreaches of the MPAA and RIAA will cause a strong pushback from “our” elected representatives. I hope I’m still alive when that day comes.
Credit where credit is due: I picked this up from Michael Pate’s post at LibraryPlanet.. Thanks, Michael!
Michael Casey posted this at LibraryCrunch last night. As one of those who suggested this to him, I’ll quote the whole thing as a way of reinforcing the claim against future foolishness:
Oâ€™Reilly has taken steps to consolidate use of the term â€œWeb 2.0â€, claiming it as a service mark. This has caused several worried library folk to contact me regarding â€œLibrary 2.0â€ and its usage.
I first published the term â€œLibrary 2.0â€ in September of 2005. I have always considered the term â€œLibrary 2.0â€, used alone or in combinations such as â€œLibrary 2.0 Conferenceâ€, to be in the public domain, usable by anyone, and not subject to trademark or service mark registration. I would hate to see this changed by anyone attempting to turn the term itself into a commercial venture.
It appears well-established that “Library 2.0” is Michael Casey’s coinage. I believe his post should be strong evidence opposing any attempt by a company to register the term as a servicemark or trademark, by itself or in any generic combination such as “Library 2.0 conference.” Casey’s done the right thing here, which will come as no surprise to anyone who’s dealt with him.
This may also be a good point to remind those who believe that Walt Crawford is the foremost “anti-Library 2.0” person around there: I’m not an anti-Library 2.0 person at all, as a reasonably careful reading of the special Cites & Insights should clarify.
I think I’ll adopt the same usage here that Peter Suber tagged me with as regards open access: I’m an independent. (Which really means largely in favor of the concepts, but choosing to continue thinking and writing about difficulties and refinements.)
He takes exception to my comment in this post at Sivacracy, and says I owe him an apology in a comment on the W.a.r. post just before this one. I have, therefore, apologized for comparing him to Gale Norton.
Notably, he also asks me to provide any facts suggesting that he’s wrong in his absolute statements about Google Library Project. I do so in the essay he objects to, and in previous essays.
I read the Michigan contract. I don’t see Michigan “turning over control” of anything to Google. I don’t see Michigan abandoning their own archival-quality digitizing or anticipating that Google will solve their problems for them. I don’t see a lot of the things that Dr. Vaidhyanathan sees as betrayals of library principles.
I’m not in Siva Vaidhyanathan’s league. I can’t imagine calling an NYU professor “some dude named Siva”; it would seem pointlessly dismissive. But I’m not a professor or an academic, and probably don’t understand the mores of the field.
Is “zealot” too strong a term for Dr. Vaidhyanathan’s commentaries on Google Library Project? Perhaps.
As to a possible factual error: When I wrote the commentary (a month ago…), I did not find Down and Out in the Magic Kingdom in GBS, even with as explicit a search as I see in SV’s post, although I certainly found it in Google. It’s there now.
But then, I’ve commented before and probably will again about the issues of indeterminacy and unaccountability in the results of the large web search engines (maybe not as much in C&I as elsewhere). Those are real issues. They don’t negate the value of better ways to discover books–not as replacements for libraries or library catalogs, but as complementary tools.
Added comment: You might wonder why I didn’t add a comment directly to the “Sivacracy” post in question. That’s fairly simple: Sivacracy requires registration in order to post comments. I suspect that’s necessary, given the volume of spam that a high-profile blog attracts. But I’m disinclined to register at such sites. If a blogger chooses to make commenting difficult, that’s their privilege, and may be the only way they can handle the blog, but I generally don’t comment when commenting is made difficult.
I found this post at EFF’s DeepLinks blog fascinating. It’s about the first of a series of hearings on limitations to DMCA (the copyright office has triennial rounds on such limitations)–and this new group (well, new to me!), the Joint Reply Commenters, that appears poised to respond to any outrageous attempt (read: any attempt) to limit DMCA in any way whatsoever.
On the other hand, maybe I’m missing the formation of a new rock group, “Steven Metalitz and the Joint Reply Commenters.” Their first big hit will be a riff on Paul Simon’s Kodachrome, the chorus line being “Hey mama don’t take our DMCA away…”
Actually, I like this: If it becomes clearer that the forces of absolute copyright and locking down everything speak with a single voice, it may be easier to deal with them…or not.
If you care about balanced copyright, fair use, and real creativity (which almost always means creating new works based in part on existing works), you really should go look at Tales from the Public Domain: Bound by Law?.
It’s a 70+-page comic book (color covers, b&w interior), with the first and last pages done in “Tales from the Crypt” style, and it tells an interesting and difficult story–and does so about as fairly and clearly as I’ve ever seen the story told.
It’s from Duke University’s Center for the Study of the Public Domain. You can view it online, download it, or buy print copies.
What can I say? I’m impressed. I’ll certainly revisit it when I get around to a big C&I piece on balanced copyright. (This is important: The comic book is not an attack on copyright or a claim that everything should be up for grabs–but it also doesn’t buy into the “permission culture” where every use of every artifact, no matter how fleeting, requires rights clearance.)
Adam Stacey took a cell phone picture of passengers evacuating the London subway in last summer’s bombing incident.
He moblogged the photo using a Creative Commons “by” license (which means anyone can use it for any purpose as long as credit is provided).
Gamma, a photo agency, grabbed the photo and distributed it, crediting Adam Stacey. They also entered it in a Time Magazine photo contest; it was one of the winners and appeared in Time with a “Adam Stacey/Gamma” credit.
Stacey thinks this is outrageous and that the credit should read “Adam Stacey/Creative Commons.”
Here’s the thing. On one hand, a “by” license means anyone can use the photo for pretty much any purpose, sell it, redistribute it, whatever, as long as there’s attribution. Which there was.
Stacey’s only case may be this clause in the “By” license:
“For any reuse or distribution, you must make clear to others the license terms of this work. ”
So the question is, did Gamma’s distribution include such clarity–and did Time drop the ball? Or did Gamma fail to honor the terms of a “by” license?
I’m sure we’ll hear more over time, although maybe not.
[Incidentally, I believe Creative Commons still needs some end-of-year donations. If you support the work they do, consider sending or PayPal-ing a donation.]
Posted on behalf of the Free Expression Policy Project:
Will Fair Use Survive? Free Expression in the Age of Copyright Control from the Free Expression Policy Project at the Brennan Center for Justice, NYU School of Law
“Fair use” is a crucial part of our copyright system. It allows any of us to quote and reproduce parts — or sometimes all — of copyrighted works, if the use advances creativity and democratic discussion. There are similar free expression safeguards in trademark law. Together, they assure that the owners of “intellectual property” cannot close down the free exchange of ideas. These safeguards in our copyright and trademark systems are at risk today. Threatening “cease and desist” letters cause many people to give up their fair use rights. Even more troublesome are “take-down” notices sent by copyright owners to Internet service providers, which pressure them to remove online speech without any court having ruled that it is illegal.
Additional hurdles to fair use come from the “clearance culture” in many creative industries, which assumes that almost no quote can be used without permission from the owner. Meanwhile, educational “fair use guidelines,” which are often narrower than fair use law, prevent many teachers from copying material for their classes. In late 2004, the Brennan Center for Justice began a research project to learn how well fair use and free expression are faring among artists, scholars, and others who make critical contributions to culture and democratic discourse. We conducted focus group discussions, telephone interviews, an online survey, and an analysis of more than 300 cease and desist and take-down letters that have been deposited with the “Chilling Effects” Clearinghouse. Our discussions with members of PEN American Center, Women Make Movies, the College Art Association, and the Location One Gallery yielded two common themes. The first was that artists and scholars have great interest in, and confusion about, fair use. The second was a need for community support and pro bono legal assistance in their dealings with publishers, distributors, and other cultural gatekeepers. Our analysis of 320 cease and desist and take-down letters from the Chilling Effects Web site indicated that more than 20% either stated weak copyright or trademark claims, or involved speech with a strong or at least reasonable free expression or fair use defense. Another 27% attacked material with possible free expression or fair use defenses. Thus, almost 50% of the letters had the potential to chill protected speech. The materials targeted by the letters ranged from criticism of a Scientology-like “planetary enlightenment” program to parodies of American Express and Mastercard. Our telephone interviewees included the creator of a parody New York Times corrections page, an editor at the Cape Cod Voice, and small entrepreneurs using such terms as “Pet Friendly” Travel or “Piggy Bank of America.” Five of them had strong or at least reasonable fair use or First Amendment defenses, and four had possible defenses.
Another seven received cease and desist or take-down letters with weak copyright and trademark claims. Yet nine of the 17 people we interviewed acquiesced in the copyright or trademark owners’ demands, or had their material removed because of take-down letters. 290 people filled out the online survey, expressing opinions about, and experiences with, copyright and fair use. Their stories ranged from an artist who made “Homeland Security” blankets to a fan fiction Web site that posted a story called “Gaelic Dreams” and received a cease and desist letter from the “Gaelic Dreams” import company. Numerous teachers and scholars expressed frustration with a clearance culture that locks images out of public view whenever an owner refuses permission or charges too high a price. What can be done to bolster fair use and free expression in the digital age? Our recommendations include creating a clearinghouse for information, including sample replies to cease and desist letters and take-down notices; a legal support network; outreach to Internet service providers to encourage help for those targeted by take-down letters; and changes in the law to reduce the cost of guessing wrong about fair use.
I certainly plan to comment on this report–but it may be a while before I read it. Meanwhile, Google’s Library Project might yield some clarification of fair use, if the cases go to trial–but that clarification could be good or bad.
If you care about fair use, I recommend that you read the report.
Cites & Insights 5:14, December 2005, is now available for downloading.
This somewhat oversized 28-page issue (essays also available as HTML separates from the C&I home page) is, to use a seasonal metaphor, a post-Thanksgiving feast for the mind, with two big helpings of scanning-related goodness, a turkey of a story, a small side dish of crow, and a dessert helping of odd/old flicks.
Enough of the metaphor, here’s the details:
Note: While this is the final issue for volume 5 of Cites & Insights, it is not the end of the volume. The index (a volume title sheet and index) will appear in the reasonably near future, for those few (?) who actually bind Cites & Insights.