copyright
Lions Gate abusing DMCA and ignoring fair use doctrine
Lions Gate abusing DMCA and ignoring fair use doctrine
You’ve got to click through and read this Techdirt article by Jonathan McIntosh of Rebellious Pixels.
Also consider reading my article "The Pinterest (Er, Tumblr) Problem, Fair Use, and a Suggestion for Change". I argue that fair use, which is an affirmative defense asserted only after infringement has essentially been admitted to, should instead be an affirmative right requiring dispute by the rightsholder.
Professor David Post on the Republican Study Committee's prematurely-released-then-removed copyright critique
David Post, writing at The Volokh Conspiracy:
The Report proposes a series of rather radical — in the Jeffersonian sense — reforms, from dramatically shortening the copyright term (a no-brainer, actually) to expanding fair use and limiting the damages from infringement claims.
The report’s recommendations don’t go quite as far as my suggestion that fair use should be assumed rather than merely an affirmative defense, but Professor Post is right to highlight the opportunity for the GOP to differentiate on this issue.
In fact, I’m not sure there is much in there with which I would disagree, excepting the over-the-top (and even italicized) final sentence of the report’s conclusion:
Current copyright law does not merely distort some markets – rather it destroys entire markets.
That’s wrong. The current US copyright regime limits access, hinders creativity, and dampens innovation, thereby frustrating copyright’s Constitutional purpose. That fact, and I do consider it a fact, must be the foundation of the copyright reform we need in this country.
Pandora suing ASCAP for lower licensing fees
Pandora suing ASCAP for lower licensing fees
Don Jeffrey of Bloomberg:
Pandora also claims that it’s entitled to lower rates because some large music publishers have announced they are withdrawing new media rights from Ascap and negotiating licensing fees directly with Web radio services.
The times, they are a-changin’.
Professor David Post: Copyright is meant to benefit the public
Professor David Post: Copyright is meant to benefit the public
Professor Post, writing at The Volokh Conspiracy about the brief he helped write in the Aereo case:
copyright law does not exist for the benefit of authors; it uses the benefit granted to authors because that is a means to increase the creation and the availability of creative works to the public.
It’s important to note that this is not the Professor’s opinion, it is derived from the Constitution and the ways in which the Supreme Court has interpreted the Constitution (particularly Article I, § 8, clause 8).
The issue in this case is whether it is violative of copyright law for a company, Aereo, to essentially rent small digital television antennae to its customers that enable those customers to stream broadcast channels over the internet. Professor Post and his co-authors on the brief argue that it is not:
the court’s role in construing the statute is not to produce maximum authorial reward, but maximum public benefit. Where that means (as it often does) that it is the copyright owners who must persuade Congress to address the matter and adjust the balance so that it tips more in their favor, they are entitled and well-equipped to do that, as they have done so often in the past.
Read the amicus brief here.
Gamers confront copyright law
Professor Greg Lastowka of Rutgers-Camden Law School, in a press release earlier this week about his current research:
User-generated content can make a game very valuable, but developers have a legal obligation to look out for copyright infringement. I’m interested to hear from developers how concerns about copyright infringement affect the kind of games they create.
I’m interested, too, and glad someone is looking into it. I look forward to reading about his findings.
Blog Post Cited in a Ninth Circuit Opinion
Blog Post Cited in a Ninth Circuit Opinion
Mr. Eugene Volokh congratulates my former copyright law professor David Post of Temple Law on having a blog post of his cited in a 9th Circuit opinion (PDF).
Portland Press Herald plagiarized a photo they didn’t even need
This is a story within a story. The outer story is about Reverend Robert Carlson, who killed himself recently amid a sexual abuse investigation. This post isn’t about that story. It’s about the inner story, about a reporter using a copyrighted photo without attribution, and claiming fair use when the photographer realizes it.
Summary: Steve Mistler of the Portland Press Herald plagiarized a photo by Audrey Slade and when she requested they take it down he told her it was fair use. I think he is wrong, his reporting was solid and didn’t require a photo, he should take the photo down, and he should apologize to Slade for plagiarizing her photo.
Steve Mistler of the Portland Press Herald used a photo taken by Audrey Slade, who worked at Husson University while Carlson was there but didn’t take the photo in her capacity as an employee. Mister didn’t request permission to use Slade’s photo, and he didn’t attribute the photo to her. He found the photo on Slade’s Flickr account, labelled as “All Rights Reserved,” and published it with this article about Carlson.
The appropriate course of action was to contact Slade either via contact information on her Flickr profile or via Flickr’s built-in messaging system. If she replied granting permission, run the photo. If she denied permission, or didn’t reply at all, don’t run the photo. Instead, the reporter used the copyrighted photo without permission and later, in an email exchange Slade published on her blog, claimed fair use.
Mistler’s failure to seek out and use Flickr’s messaging system suggests to me that he didn’t want to contact Slade.
I’m not going to write in-depth about fair use, but you can find good basic information at the U.S. Copyright Office, Standford University, and Wikipedia. The Herald's use of Slade's photo is not, in my educated opinion, fair. The newspaper is a for-profit enterprise, the copyrighted work is a photograph for which false attribution can easily be claimed, the newspaper did not transform the work in any way, and they used it in its entirety.
Ms. Slade sent some very polite messages asking them to take them down, and even offered to handle invoicing them for continued usage (by the way, I think that is wonderful, regardless of whether it would hold up in court). Mistler could have replied asking whether attribution would convince her to allow the newspaper’s continued publication of the photo on their website. Slade probably would have said no, but it would have demonstrated that Mistler was aware of his mistake. Instead, he gave Slade two justifications for his perfunctory infringement:
(1) We could not, by deadline, determine who the photo belonged to, and (2) we ultimately decided it was in the public’s interest to publish them. The story was, in essence, about the evidence that Rev. Carlson was still partaking in Husson activities for years after supposedly being told he was no longer welcome.
And the photo proved that claim, Mistler’s reasoning goes, so it had to be in the article. Except Mistler got the former President of the University to admit to the allegations in the article, a far more powerful confirmation than a plagiarized, undated photo.
That was the wrong answer, legally and ethically.
Now Slade has published the email addresses of several Herald employees (all, I think, publicly available anyway), and a commenter has posted some phone numbers (one of which is a cell phone number and likely not meant to be public).
It wasn’t my photo they used without permission as part of a for-profit enterprise, but I can say that if it was, this whole thing would be more about principle than money or the law: be authentic with readers and respectful of sources and copyright holders.
In sum, there was no fair use in this situation, and there was no need for the “unfair” use in the first place because there was real reporting behind the story. Hopefully, Mistler and the Herald will do the right thing and remove that photo, preferably adding an apology to Slade and their readers at the bottom of the article for the previous use of an unlicensed photo.
The Pinterest (Er, Tumblr) Problem, Fair Use, and a Suggestion for Change
I wrote the article below for Temple Law’s student newspaper, Prima Facie. While my views on the topic of copyright liability in the modern Internet’s “sharing economy” continue to evolve, I haven’t made any edits to the version that ran in Prima’s April issue. This is a long post, but I would welcome any feedback, including criticism as long as it’s constructive. I also include a postscript at the bottom mentioning a recent development that may affect the relevant legal landscape.
Fair use doctrine is a great thing. Its allows limited use of copyrighted works and consists of four factors. Those factors include the purpose and character of the use, the nature of the work used, the amount used relative to the whole work, and the effect of the use upon the potential market for the work. These considerations, developed at common law and now included in the Copyright Act at 17 USC § 107, can be powerful tools for art, education, and other endeavors. But they are also widely misunderstood. Copyright law and fair use are in many ways more important than ever.
Ours is an increasingly networked world, marked by everyday activities like sharing things on Facebook and posting things to blogs. The rise of social engagement and the sharing economy has been so meteoric as to pull even the enterprise into its gravitational field. The largest companies in the world are now active on Twitter, and even the late Steve Jobs made his Apple, Inc. email address publicly known, sometimes even sending personal replies to complete strangers.
This is an exciting development, and harbors many of the hallmarks of what early pioneers of the public internet might call “success.” And they would be right. But the internet is a tool, and like any tool, it is only as good or as evil as the people who use it. The internet is used to spread child pornography, to pirate movies and music, and to steal massive amounts of credit card and other sensitive private information. However, somewhere between the glorious interconnection that let frustrated Apple users get the low-down from Mr. Jobs himself, and the internet’s criminal underground, there are more pedestrian, though no less important, issues for us to face.
Issues like Pinterest.com. Well, Pinterest isn’t the issue, the issue is still copyright law and the confusion it often causes when it comes to the internet. Legislation like 1998’s Digital Millennium Copyright Act tries to minimize the liability of service providers for the digital wrongs committed by their users. But those laws don’t (and probably shouldn’t) take similar steps to relieve the users themselves of liability for things like copyright infringement. And therein lies the complication for Pinterest.
The invite-only image sharing site had 11.7 million unique visitors in January 2012, according to web metrics firm comScore. Users keep an eye out for interesting or beautiful images while they’re shopping, reading news, or otherwise surfing the web. When they find something worth bookmarking, they “pin” it, building “boards” based on different topics. Earlier this year, attorney and photographer Kirsten Kowalski wrote a blog post about her misgivings: it looked to her like Pinterest users were engaging in copyright infringement on a scale never before seen. Pinterest, the internet seemed to say in unison, has a very big copyright problem.
Now, to be clear, it’s not really Pinterest’s copyright problem. It’s Pinterest’s users copyright problem, since the DMCA and a well-worded indemnification clause in their terms of service probably get Pinterest themselves off the hook. But the problem with Kowalski’s post, and with the press and viral internet attention it got, is that the “Pinterest problem” is absolutely not on a scale never before seen. This is, in fact, how the internet works. The compliance with the DMCA and solid indemnification clauses keep companies out of hot copyright water, but users are infringing at an astounding daily rate.
The popular blogging service Tumblr gets around twelve billion monthly pageviews. Just Google “tumblr star wars” to get a feel for how much user infringement is going on over there. Sections 9 and 10 of Tumblr’s terms of service give them the same indemnity from claims and judgments related to use of the service that Pinterest demands. That’s because Tumblr, Facebook, and others have been around for years, doing exactly what Pinterest does: enabling (and often profiting, directly or indirectly, from) infringement. Publishers often let it go because the traffic and mindshare they derive from this rampant sharing is more valuable to them than the hunt-and-peck game of suing individual infringers. In reality, users agree to assume massive liability in return for the use of myriad blogging services every day, and they have been for a very, very long time.
Pinterest has developed a snippet of website code they refer to as a “nopin” tag that copyright owners can include on their own websites to block Pinterest users from displaying their content via Pinterest. It’s a gesture of goodwill from Pinterest to rights holders, and popular photo sharing site Flickr has made the “nopin” tag an option for its own copyright-holding users. But there’s a better way to empower users to share than mere reliance on the continued laissez-faire legal strategies of publishers and ad hoc website tags.
This brings us back to fair use, the doctrine mentioned at the beginning of this article. Many misconstrue fair use as a right to use someone else’s work regardless of copyright. That’s not what it is at all, though. It is an affirmative defense, only marshaled when a defendant essentially admits to infringing a §106 right. You admit the infringement, but then assert a fair use defense. Under current law, fair use never “excuses” or “permits” infringement ex ante.
But maybe it should.
Maybe copyright law should be modified to make fair use an a priori right of the public to use, with certain limitations and restrictions, the copyrighted works of others. That doesn’t mean that Pinterest users would be off the hook, and commercial companies running their own Pinterest boards will always be more likely to draw negative attention from rights holders in copyright as well as trademark and “use of likeness” issues. Users are required to comply with current law.
But fair use as a right instead of an affirmative defense would reduce the chilling effect overbroad copyright law sometimes has, and would facilitate the growth of the sharing economy that has come to define the modern internet.
Postscript: Porn publisher Perfect 10 has sued Tumblr over the many copies of its copyrighted photos the blogging service allegedly stores on its servers. Note that they’re not suing Pinterest, despite its recent surge in popularity. As I said, what many call the “Pinterest problem” predates Pinterest, and as today’s news suggests, it might be more aptly termed the “Tumblr problem.” Read Jeff John Roberts’ post at paidContent for more information.