Category Archives: Copyright Issues and Legislation

Copyright Issues and Legislation, Fair Use

Taking a defense on the offensive

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Technically, copyright misuse is a defense that has been recognized in the federal courts but is not codified in our copyright law. In a misuse claim, if a copyright owner is found to be claiming more copyright protection than the law gives, that owner may be barred from enforcing any copyright protection until they stop making the exaggerated claim. Someone sued for infringement can raise the defense that the copyright owner has claimed too much and a court may find that even genuine infringement should be excused on that basis.

In a recent complaint to the Federal Trade Commission, however, a computer industry group took the copyright misuse defense and went on the offensive. The Computer & Communications Industry Association has filed a complaint with the FTC alleging that the National Football League, Major League Baseball, NBC/Universal and several other large content producers are engaging in unfair and deceptive trade practices by claiming copyright protection they are not entitled to. One example, discussed earlier on this site, is the copyright warning read on sports broadcasts that claims to prohibit “accounts and descriptions of this game” without written permission from the sports organizations. In spite of this dire warning, the NFL cannot prevent a water-cooler discussion of last night’s game; accounts and descriptions of the facts of the event are fine unless they are “substantially similar” to copyrighted expression, and even repeating the words of a broadcast description may be fair use, which, by definition, is permitted without authorization.

What the CCIA essentially is complaining about is copyright misuse – exaggerated claims designed to intimidate consumers and prevent them from doing things they are perfectly free to do under the law. On offense it is called an unfair trade practice; on defense it would be copyright misuse. But whichever side of the ball we are on, the idea that copyright claims can be overstated is important; consumers and users should understand the genuine contours of copyright protection and take full advantage of the educational and creative uses that the law does permit.

Read an Electronic Freedom Foundation blog post on the filing here.

For those who are interested, you can find the complete complain here.

Copyright Issues and Legislation, Technologies

Friday’s bad news

UPDATE — What a difference a weekend makes! According to the Chronicle of Higher Education today (Wednesday), Senator Reid has withdrawn the proposed amendment after intense lobbying from the high ed. community. The issue, of course, has not gone away, and lawmakers seem determined to continue to pressure universities as if they were the primary source of this problem, which they are not. But at least this very bad idea has been abandoned for now.

The down side of the news on Friday was an announcement, and an urgent appeal for action, from EDUCAUSE, about the intention of Senator Harry Reid to offer an amendment to the Higher Education Reauthorization Act that would put a grossly unfair burden on a few universities to address illegal file sharing; a burden no other online service provider would share.

Senator Reid’s amendment (there is a report on it here from the Chronicle of Higher Education) would require that 25 institutions identified each year by the music industry to the Secretary of Education, based on the number of copyright infringement notices sent to those schools, adopt a “technology-based deterrent to prevent the illegal downloading or peer-to-peer distribution of intellectual property.” Now, everyone agrees that sharing copyright protected music and video over P2P networks is illegal and ought to be discouraged, but this amendment is clearly the wrong way to approach the problem.

First, colleges and universities are only a small part of the file-sharing problem. Even the content industries admit that nearly 3/4 of all file sharing takes place over commercial networks not affiliated with higher education. In fact, the higher education community is the only major group of online service providers that is now actively taking steps to reduce file-sharing on its networks. Why punish only those who are trying to prevent the activity and ignore the commercial providers? Why do the content industries continue to target higher ed and ignore AOL and Viacom, where the problem is much greater?

Second, the Secretary of Education is supposed to identify the 25 schools from information provided by the content industries. Thus a major financial burden could be created for institutions that have little way to anticipate being targeted or defend themselves from random selection. These notices are often inaccurate, and just counting them up and picking out the top recipients is and unfair, and unfunded, mandate that will do little to actually address the problem.

Finally, this proposal continues the trend in Congress of attempting to apply technological solutions to infringement problems. Unfortunately, every technological barrier quickly becomes a challenge that some programming whiz wants to defeat. The barriers fall as quickly as they are erected. So schools would be required to spend lots of money to implement solutions that can not realistically be expected to work for very long. These problems must be addressed with long-term market solutions, not with technological band-aids.

You can read a letter from EDUCAUSE about the proposed amendment here, and an article from Inside Higher Ed here. As the article notes, this amendment has not been offered yet, and the situation is “fluid.” So perhaps good sense will prevail on this issue, and troubling news can become an opportunity to educate our Congressman on the real facts about file sharing.

Copyright Issues and Legislation, Open Access and Institutional Repositories

Friday’s good news

Last Friday was a day of both good news and bad news for higher education on the copyright front.

On the plus side, on Friday we learned that the House of Representatives passed, late Thursday night, a Labor, Health and Human Services and Education appropriations bill that included language to make the public access policy for the National Institute of Health mandatory. What this means is that the published results of research funded by NIH grant monies would have to be made available to the public, whose tax dollars paid for the research, within one year of publication. The NIH offers the PubMed Central database for this purpose, and a small amount of research (compared to the total amount funded) has been made available under a voluntary program for the past three years. A mandatory policy will vastly increase public access to vital health information; the 12 month delay would ensure that subscriptions to the journals that publish these original articles would not be endangered.

This was only a small provision in a huge appropriations bill, but it is the first time a full branch of Congress has endorsed the principle of public access. Publishers lobbied hard against the change, for reasons that are hard to fathom (note — here is an article in which several representatives of the content industry express the reasons for their opposition), but Congress specifically passed over the opportunity to amend this provision. A similar bill, with the open access proviso, will soon be considered in the Senate. President Bush has threatened to veto the Appropriations bill because of disagreement over the amount of spending — not because of the public access rule — so it may be sometime before this mandate goes into effect. Nevertheless, a very significant first hurdle has been successfully cleared.

See a news release from the Alliance for Taxpayer Access here.

Our next post will discuss Friday’s bad news.

Authors' Rights, Copyright Issues and Legislation, Open Access and Institutional Repositories

Copyright term, open access and the NIH

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As reported in the Chronicle of Higher Education last week, an Oxford graduate student in economics is soon to publish a paper arguing that the “optimal” term of copyright protection is just 14 years. This is vastly shorter than the current term of protection in the US, where the term is life of the author plus 70 years, or in nearly any other nation of the world. Although his conclusion may be too radical to be practical, Rufus Pollok’s calculations add some weight, if any was needed, to the argument that copyright protection has moved very far from its original goal of providing an incentive to authors to create and now nearly exclusively serves the economic interests of large commercial distributors.

Pollock bases some of his calculations on the argument that a shorter term becomes more desirable as technology makes reproduction and distribution easier. Nevertheless, it is interesting to note that the optimal term he arrives at – 14 years – was precisely the term provided by the first English copyright law, the 1709 Statute of Anne.

Even if the copyright term was vastly shorter than it now is, however, many of the arguments for open access to research and scholarship would remain just as strong. That there is great public benefit to wider access to cutting edge research, and great justice in providing taxpayers with no-toll access to the results of research for which they have already paid, are points that do not depend on the length of the copyright term. Even if the term were as short as Pollock proposes, more immediate public access would still be worthwhile pursuit; authors would still need to see that a right to open access deposit was included in their publication agreements and funders, especially government agencies, would still need to mandate such deposit whenever practical. But under our grossly over-extended term of protection, these needs are greatly amplified.

Congress is now considering an appropriations bill that includes funding for the National Institute of Health and, for the first time, would mandate that research funded by the NIH be deposited in the PubMed Central database within six months of publication. This language has clear the appropriations committee and will be considered on the House floor this week. Publishers have objected that this mandate might undermine copyrights, but this argument hardly seems convincing, since most publication agreements already allow authors to offer their own published work on the web. Authors must continue to read such agreements with great attention to be sure they retain this right, and Congress should not let this spurious argument prevent them from seeing the basic justice that demands passage of the NIH appropriations bill as it has come from committee.

Added note — The American Library Association has posted this Action Alert to assist those who would like to encourage Congress to support the NIH mandate.

Copyright Issues and Legislation, Fair Use

A very expensive blanket

Two weeks ago the Copyright Clearance Center announced that it would offer a “blanket” license to college and university campus for permission to copy and distribute copyright protected material to students. The license offers to replace the time-consuming struggle to get and pay for permissions with a single yearly bill. Unfortunately, the blanket licenses apparently will not cover all, or even most, of the material frequently used by college classes. Even more unfortunately, dependence on a blanket license will further discourage university faculty members from considering whether or not their use of specific material is fair use. Fair use, like many other rights granted by law, can atrophy if it is not exercised.

In his current column in the Financial Times’ “New Technology Policy Forum,” Duke Law Professor James Boyle makes this point succintly and eloquently. He explains much more clearly than I can why the price tag on such a license, regardless of its monetary cost, may be much too high. His column should be read by anyone who wonders if a blanket license might relieve the uncertainties and stresses of relying on fair use. The consequences of such a decision, Boyle suggests, might in the long run be far more harmful to higher education.

Copyright Issues and Legislation, Fair Use

New speak v. old speak

It seems to be a monthly occurrence; an editorial appears in a major news outlet advocating stricter copyright legislation and enforcement. This week it was the San Francisco Chronicle, which published on Monday an opinion piece from two attorneys who have just launched a class action lawsuit against Google over videos posted in YouTube. The acquisition of YouTube by deep-pocketed Google has clearly made it a tempting target, and class actions are notoriously lucrative, especially for the attorneys, if they can get past the formidable obstacle of class certification. Authors Louis Solomon and William Hart claim to represent the interests of “large and small copyright holders whose creative works have been posted and reposted [to YouTube] without authorization.”

Solomon and Hart make a number of conclusory statements in their editorial that deserve closer scrutiny. For one thing, they repeatedly assert that YouTube’s “very business model depend[s] on the unauthorized exploitation of copyrighted material.” They say there is “no legitimate constituency” for that business model and ask, rhetorically, what Google thought was the main source of value when they bought YouTube if not “the copyrighted works of others.” All of this ignores the large number of user-created works that are posted to YouTube with explicit permission granted by the creator/user who uploads the video. Of course YouTube depends on copyrighted works created by others, but many of those creators want to have their work available in this forum; these creators are not being exploited, they are being offered an outlet for their creativity that would not otherwise be available.

By ignoring the legitimate users of YouTube, Solomon and Hart reveal that the fundamental purpose of this lawsuit, like that filed earlier this year by Viacom against YouTube, is to undermine some settled legal principles. This kind of attack on new techonologies dates back into the 1970s, when some movies studios sued to prevent the distribution of consumer video recorders. The Supreme Court ruled that a technology could not be suppressed if it had a “substantial non-infringing use.” YouTube obviously has such uses, but the various plaintiffs are clearly hoping that our now more business-friendly federal courts will reverse or revise that standard to give content producers stricter control over technological innovation.

Another target of the lawsuit is the “safe-harbor” provision inserted into the Copyright Act in 2000 by the DMCA to protect online service providers from liability for the actions of their consumers. The content industry is hoping that the 2005 Supreme Court decision in MGM v. Grokster offers an opportunity to reverse in the courts what Congress did by legislation and force online hosts, who are easier and wealthier targets than individuals are, to assume the risks and costs for user behavior.

Finally, Solomon and Hart assert in response to an anticipated defense that “no one has a First Amendment right to infringe” copyright. This is true as far as it goes, but it overlooks the fact that some apparent infringements are immunized by law precisely because of the danger that copyright could be used to suppress legitimate and socially desirable speech. Sections 107-122 of the Copyright Act all enact “limitations on exclusive rights” designed to allow conduct that would otherwise be infringing but which Congress believed should be protected. The Supreme Court has said that “the Framers intended copyright itself to be the engine of free expression” (Harper and Row v. Nation Magazine, 471 U.S. 599 (1985), and YouTube can legitimately argue that the opportunity it offers for such expression gives it a social value that tips the copyright balance in its favor.

Copyright Issues and Legislation, Scholarly Publishing

UT Offers Help Seeking Permissions

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A while back we wrote about the new database from Stanford University that helps one search copyright renewal records for that period of US copyright history during which un-renewed works would pass into the public domain. Now the Harry Ransom Humanities Research Center at the University of Texas, Austin has announced two databases that will help make searching for information about “orphan works” a little easier.

The Ransom Center has offered the WATCH database, which stands for “Writers, Artists and their Copyright Holders,” for some time. This database helps those seeking permission to use a copyrighted work find out who owns or administers the rights and can give the necessary permission. For example, if one searches “Rawlings” in the WATCH database one discovers the name and address of the literary trust that holds rights in Marjorie Rawlings work.

On May 29 the Center announced a companion database – FOB, for “Firms out of Business.” Here one can find publishing firms that no longer exist, have changed hands or are part of a larger company. Searching “Vintage,” for example, turns up the information that it is an imprint of Random House and that the parent was sold in 2006 to a German company called Bertelsmann AG. Tracking the subdivisions and mergers in publishing is a huge and complex task, so it is impossible for a database like FOB to be entirely complete and up-to-date, but the ability to find “successors in interest” for a defunct publisher will go a long way to reducing the burden of seeking permission.

Both these databases are valuable tools for finding rights holders. The real problem is when rights holders can not be found; when the databases come up empty. That is the real orphan works problem – works that are lost to our cultural heritage as long as they are locked up by copyright with no one to turn the key by giving permission. For that problem we need to see the orphan works legislation that was proposed last year reintroduced in Congress and passed without delay. But in the meantime the Ransom Center deserves a hat tip for the hard work it has done to make the work of all who seek copyright permissions a little easier.

Copyright Issues and Legislation

“Policy Laundering”

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Speaking of international issues, at the recent copyright conference at the University of Maryland University College Center for Intellectual Property, Gigi Sohn of Public Knowledge used the above phrase to describe a disturbing trend in copyright legislation. “Policy laundering” refers to the practice of negotiating bilateral trade treaties with other countries that include rules about intellectual property that are more strict than US law, then presenting the agreements to Congress as evidence that the US must change its law in order to “enable” the treaties. This use of trade agreements to force legislation without regard to whether it serves the original purpose expressed by the Constitution in its authorization of copyright and patent laws – “to promote the progress of science and useful arts” – represents an end run around the Constitution.

 

 

Concern about this practice is not merely abstract. David Nimmer, whose name represents the highest authority on US copyright, writes about the TRIPS (Trade Related Intellectual Property Rights) agreement as a similar, and successful, attempt to use trade negotiations to circumvent constitutional strictures in his book Copyright: Sacred Text, Technology, and the DMCA. The Hague, London, New York: Kluwer Law International (2004). And the recent (July 2003) extension of the copyright term in Mexico to life of the author plus 100 years (30 years longer than in the US) must surely raise the concern that calls for such an extension in the US for the sake of “harmony” will soon be heard.

Authors' Rights, Copyright Issues and Legislation

A Seventy Percent Solution?

It is a little bit belated to be pointing out this April 7 article (“It’s a Steal”) by John Lanchester from the Manchester (UK) Guardian website, but it provides a nice counter piece to the screed advocating perpetual copyright that appeared in last week’s NY Times (see post here). Lanchester, at least, is aware of the balance that copyright law is supposed to strike between incentives for creators and the public interest in access to information and the raw materials for new works. He offers a poignant example of how copyright restrictions have hampered his own creative efforts as an author, and he takes a quick but eloquent romp through the history of copyright law in England. Most important is his acknowledgement that 70% of creative works are currently still protected by copyright but no longer in print. This massive limitation on public access with little corresponding economic benefit to creators is, perhaps, the worst imbalance created by current laws (although Lanchester also cites the extension of copyright term whenever Mickey Mouse looks over the abyss of the public domain). The solution he suggests, a limited copyright term with an ongoing right to minimal royalties, is not fleshed-out well at all, and may be unworkable, unwise, or both. The point is not that this one author can solve the problem; the value of the article is for a creative writer to recognize publicly that our current law has swung too far toward protection and needs to be realigned.

Authors' Rights, Copyright Issues and Legislation

Helprin, Chaucer and literary influence

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Several colleagues have asked me if I don’t have some pithy and devastating response to make to the opinion piece by Mark Helprin in Sunday’s New York Times, A Great Idea Lives Forever. Shouldn’t its Copyright?  In some ways the best refutation of Helprin’s editorial is simply to consider its title carefully.  Do we really want great ideas owned by individuals forever?  While copyright does not, of course, protect ideas, perpetual copyright would vastly increase the amount of litigation needed for any new work of creativity in order to prove that its dependence on all that had preceded it was on the correct side of the idea / expression line. What a powerful weapon the James Joyce estate would wield to suppress criticism and scholarship for many, many more years if Helprin got his wish.

Should Boccaccio have been able to sue Chaucer to establish that only ideas and not expression were appropriated when Chaucer wrote his “derivative works?”  Without literary borrowing, the great works of world literature would not have been possible; Chaucer could not have written The Canterbury Tales and Mark Helprin could not have written… whatever Mark Helprin has written.  Then there is the culture of remix and parody fostered by the Internet — a whole new kind of creativity that should not be stifled in its infancy.  So perhaps the most appropriate response to Helprin is to read another recent article that celebrates the interplay and interpenetration of cultural creation, The Ecstasy of Influence by Jonathan Lethem, which appeared in Harpers in February 2007.