Against Monopoly

defending the right to innovate

Fair Use

Monopoly corrupts. Absolute monopoly corrupts absolutely.

Copyright Notice: We don't think much of copyright, so you can do what you want with the content on this blog. Of course we are hungry for publicity, so we would be pleased if you avoided plagiarism and gave us credit for what we have written. We encourage you not to impose copyright restrictions on your "derivative" works, but we won't try to stop you. For the legally or statist minded, you can consider yourself subject to a Creative Commons Attribution License.

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Who is more powerful than islamic riots?

Copyright lawyers! The controversial anti-Quran documentary of Dutch lawmaker Geert Wilders was published without amendments despite copious outrage in the Muslim world, but copyright lawyers make the impossible happen: images of the infamous Allah cartoon will have to be edited out.

This documentary raises all sorts of questions, but in the context of this blog, it raises a particular one. This is a documentary, would it not fall under fair use to show a cartoon directly linked to the topic at hand?

When copyright forces copying against your will

Back when libraries only had printed material, they could lend books under the first sale doctrine: once they had purchased a legally copyrighted work, they could sell or dispose of it as the see fit. Things have changed a bit with the advent of online content. To prevent libraries from giving away PDFs, publishers are now licensing on-line content, which is different from selling: use is limited to library premises, usually extended to a campus.

This raises issues with inter-library loans (ILL). No problems with hard copies, which are lent physically and returned. With online content, licenses do not allow to simply forward a PDF file. As Elsevier makes explicit in its policy, the requested item needs to be printed, then scanned before being send through Ariel (an electronic ILL network most libraries use). Thus, copyright rules lead to more paper being wasted because content is online. Great for efficiency and the environment.

Hat tips: Peter Suber and DigitalKoans.

Six ideas for copyright reform

Gigi Sohn proposes six points to reform copyright in a speech yesterday link here. The complete text is available here. Teeing off from the fact that the scope and duration of copyright has been steadily expanded, limiting innovation, she suggests fair use changes, limits on secondary liability, protection against copyright abuse, better licensing, orphan works reform, and better notification of technological and contractual restrictions on digital media. Most of our readers would prefer abolition of copyright but it isn't going to happen any time soon, so these ideas are worth a lot of discussion.

Teachers unclear about fair use, short change students

Nate Anderson has an interesting piece on the lack of understanding among teachers of fair use link here. Researchers wanted to know if confusion over using copyrighted material in the classroom was affecting teachers' attempts to train students to be critical of media link here. The answer was "yes." The study, by the Center for Social Media at American University cites fear of law suits, lack of understanding of the vague rules for fair use, and a desire to avoid controversy.

One example: a teacher had his students create mashups of pop music and news clips to comment on the world around them. The school refused to show them on the school's closed-circuit TV system because "it might be a copyright violation."

Is there a good short clear guide to fair use? Fair use gets 1.7 million Google entries, so there seems to be a need for greater clarity.

Coporate Media Establishes Copyright Cartel

Wired reports:

Disney, CBS, Microsoft, Fox, NBC, Viacom, Dailymotion, MySpace and Veoh Networks announced so-called User Generated Content Principles that appear aimed at stifling fair use. The announcement calls for the "implementation of state of the art filtering technology with the goal to eliminate infringing content on (user-generated content services), including blocking infringing uploads before they are made available to the public."

The Cartel's website can be found here.

Even if you accept current notions of copyright law, here is the biggest problem I have with this concept - It clearly anticipates that media companies will have a primary hand in defining what "fair use" is. This of couse is flat-out unacceptable. The entire concept behind "fair use" is that such "use" will be allowed even in face of express opposition by the copyright owner. Fair use is never "accommodated" as the Cartel suggests. It is instead superceded over express objections to the use of the material.

This is entirely unworkable since "fair use" is ultimately only defined by a court on a case-by-case basis after litigation has been brought forth. Even lawyers can never tell you if something is "fair use" or not. They can only make best guesses of what a court will decide (though their guesses are often disguised as conclusions based on their own biases of what they think fair use ideally ought to be).

Here are 5 different scenarios that all involve the same act of downloading a song:

1. To keep in my personal music library after being exposed to the song elsewhere.

2. To sample the artists work to determine if I might want to purchase it or other works at a later date.

3. To explore lyrics or aspects of the work for a journalistic/scholarly essay that I am working on regarding a history of the music genre.

4. To replace a defective CD that I bought in a store.

5. To replace a purchased CD that I lost or accidentally damaged on my own.

Which of these are "fair use"? The answer is - NOBODY KNOWS! (at least until you a court ruling in your particular case.) Recent court cases would strongly suggest that scenarios 1 & 2 probably won't be considered fair use, but even then, there might be specific facts in individual cases that might lead a court to rule otherwise (and such a ruling would have little use or practicality in terms of establishing precident for future cases with differing facts - even when the differences are hair-splitting). "Fair Use" can be an infinitely flexible concept that judges can use and abuse according to their personal tastes. Any lawyer who tells you that there is a bright line legal rule that prohibits any downloading of songs for personal use under all circumstances is simply smoking crack folks. The odds are certainly stacked against such defendants these days, but there is no bright line rule.

This much is certain, however: Media companies would consider all 5 scenarios to be copyright infringement with no "fair use" invovled. If they are the ones directing websites such as Youtube to remove content based on their edict, then their declaration that "fair use" ought to be "accommodated" is a hollow promise indeed.

On the Piracy Front

Martin Osborne discovered a copy of my book with Drew Fudenberg Theory of Learning in Games available as a free download. It comes with a link to buying the book on Amazon, and appears to consist of a scan of the table of contents together with an electronic version that once appeared online, and now is available only with a password. Weve been trying to get the publisher MIT Press to give us permission to put the book online for several years now. They always smile and act friendly like they will do it, but never actually do anything. Needless to say, Im not rushing to bring any new book projects to MIT Press at this point. Since they wont give us permission to put it online, it seems the next best thing is post the link.

Mickey Mouse And Political Speech - A New Route To The Public Domain?

It is becoming increasingly clear that Mickey Mouse is being adopted as a de facto symbol of Palestinian politics.

This poses some interesting questions and possibilities. Regardless of how the Disney Corporation may react or object to this, if the Palestinians are routinely using Mickey's image, then it would clearly become appropriate for people in the U.S. to be able to use Mickey's image as well as a matter of fair use political speech regarding the situation in the Middle East.

Would people really suggest that Hamas should be able to use Mickey's image at will, but that American's wishing to respond in the same language must first get permission from the Walt Disney Company? I doubt that even hardcore copyright apologists would try to argue for such a perverse scenario.

If Disney chooses to do nothing here (or finds that it is simply unable to do anything), then Mickey will eventually become a de facto public domain figure throughout the Middle East. That would potentially lead to a de facto public domain status in the U.S. as well since to enforce a strict copyright on Mickey would then intrude into core political speech.

Perhaps a terrorist organization like Hamas may actually end up doing what our corrupt Congress has failed to do - Free Mickey!

Always Something, Almost Never Good

Much ado about another weakening of the Sony decision allowing home recording. Via Jeff Ely, an article about the Cablevision case here. The upshot: because of some elaborate reasoning by the judge, you have keep your recording in your own home...Cablevision can't keep the recording for you on its servers. That's copyright: arbitrary distinctions by arbitrary judges.

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Most Recent Comments

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Les patent trolls ne sont pas toujours des officines

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Bonfire of the Missalettes!

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