Lily Allen: It's Ok To Sell My Counterfeit CDs, Just Don't Give My Music For Free

from the confusion dept

Dark Helmet alerts us to the news that our good friend Lily Allen is back in the news discussing file sharing again. Tragically, it does not appear that she's used her "time off" to better understand copyright issues very much. Unlike nearly everyone else who complains about copyright infringement, she's apparently "all for" infringing on her copyrights, just so long as you pay someone -- even if it's the guy on the street selling the counterfeit CDs. Seriously:

"If someone comes up with a burnt copy of my CD and offers it to you for £4 I haven't a problem with that as long as the person buying it places some kind of value on my music."

Yes, so while some musicians have said they're fine with non-commercial file sharing, but are against anyone selling their unauthorized works, Ms. Allen seems to have taken the opposite approach. Counterfeit all you want, just as long as you profit from it. Yeah. Someone should explain to her the difference between price and value, and also the benefits of word of mouth marketing. But, it doesn't seem like she's much interested in actually understanding this stuff, so if you want to help her understand, maybe go set up a shop selling burned copies of her CDs, and see what happens.

Of course, if we take this seriously, it shows how little she's thought this through. Her earlier complaint was that when people file share, they don't provide money back to the artists and the labels. Of course, when counterfeiters are selling on the street, the same thing is true, but suddenly it's okay? At what point does the world realize that Ms. Allen doesn't know what she's talking about?

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Movie Monsters, The Grateful Dead... And Fair Use Even In Commercial Use

from the good-news-for-fair-use dept

There's some good news on the fair use front. Many people seem to falsely believe that if a work is used for commercial purposes it cannot be fair use. They think fair use only applies to non-commercial efforts. But that's not true. Commercial use is factored into the analysis, but just because it's commercial does not mean that it's not fair use. A few years ago, an important case made this point, involving Grateful Dead concert posters that were used in a book. The Bill Graham Archives, who owned the posters in question, claimed that because the book was published commercially, it wasn't fair use. But the court ruled that even though the images were used commercially, and even though they were used in their entirety without modification, the fact that they were used in the context of a book describing the history of the band, made it fair use.

It looks like we now have another, quite similar, ruling -- this time involving movie monsters, and whether or not magazine covers could be used in a book. And, once again, a court has ruled that this is fair use, despite the commercial nature. In this case, the book was a look at the artwork of Basil Gogos, who apparently designed numerous magazine covers concerning monster movies in the 1950s and 60s. The magazine publisher claimed that the use of the magazine covers in the book violated its copyrights and trademarks, but the judge ruled that this was fair use, noting that the use (if not the works) was transformative. That is, the original works were designed for use as magazine covers, but this use -- as a biographical and retrospective look at the artist -- was entirely different.

"The fact that the Gogos book is inherently biographical renders it so fundamentally transformative in nature, coupled with the fact that Spurlock utilized such a quantitatively and qualitatively minor portion of the magazines, requires this court to conclude that Spurlock's use is fair use and to grant Spurlock's motion for summary judgment on the copyright claims,"

This is definitely an important fair use ruling, though will likely still go through appeal. Hopefully, it'll be allowed to stand.

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That Blurry Line Between Commercial & Non-Commercial Use Still Troubling For Creative Commons

from the is-this-commercial-use? dept

First off, I should say that I respect what the folks over at Creative Commons are doing, and think they really do have the best interests of content creators and the public at heart in their plans -- but I've always been a bit uneasy with the whole setup of Creative Commons -- some of which I expressed last year in discussing the difficulty in distinguishing commercial from non-commercial use, as is necessary in many CC licenses. As I wrote at the time:

But it's this blurring of "personal" and "work" lives that again has me pondering if there really is a meaningful distinction between "commercial use" and "non-commercial use." Some of this debate first came about years ago, when some web publishers claimed that their RSS feeds were "for non-commercial use only," but what does that mean? If I read your site as part of my job, have I violated that rule? If I learn information from your feed that allows me to make money, have I violated that rule? More recently, there have been proposals to separate copyright violations, such that "non-commercial use" is allowed. But, again, you quickly run into very questionable scenarios. If my personal blog has Google AdSense on it, is it commercial use? If I end up getting a job because of my "personal use" of your content, does it suddenly morph into "commercial use"? The questions get more and more confusing, and the mess would make less and less sense.

It seems that Danny Sullivan has come across the same issue, and is taking both Flickr and Creative Commons to task for the ambiguity in their licenses which is so confusing that even those who are using CC licenses don't seem to totally agree with what their own licenses say. He details a variety of stories, where it's simply not clear at all what is really allowed under the CC license being used. If a commercial blog uses and attributes a photo that has a "non-commercial use" only license, is that infringing? Or is that "non-commercial use" only limited to not selling the image. But some might argue that you were "selling ads off of the image." It all gets quite blurry fast.

To their credit, the folks at Creative Commons have been working hard on trying to deal with the ambiguity (and part of the reason for the original post I linked to at the beginning of this story was a survey they were taking on this very subject). But it's quite clear that there's still an awful lot of ambiguity that isn't really helped by the phrase "non-commercial use."

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Fair Use, Turnitin, And... Why Google Never Should Have Caved On Book Scanning

from the bad-news-all-around dept

Last year, we wrote about a district court decision that noted iParadigm's popular Turnitin plagiarism checker service wasn't violating copyright by adding every student's paper to its database, noting that this was fair use. Wired points out that an appeals court has upheld this ruling and links to Thomas O'Toole's quick summary of why this is fair use:

The court stepped through the fair use analysis, dropping positive notes here (commercial uses can be fair uses), here (a use can be transformative "in function or purpose without altering or actually adding to the original work," citing Perfect 10 Inc. v. Amazon.com Inc.), and here (fact that turnitin.com used the entirety of the plaintiff's work did not preclude finding of fair use). And it turned back a lot of other, small-bore challenges to the district court's fair use finding.

While O'Toole rushes through these points, they're actually pretty important, since they're quite often misunderstood by people (even copyright lawyers) who claim that commercial use isn't fair use, or that using an entire work can't be fair use or can't be transformative. In this case, the court lays out why none of that is true. When the original decision came out, I suggested that all of these points could be helpful to Google in defending its book scanning efforts, since it could make pretty much the identical arguments on all points. It's scanning was a commercial use, but transformative (it was for indexing/searching books, not reading them), it was making use of the entire work, but again, in a transformative way.

Unfortunately, as we all know, Google caved in that lawsuit and settled -- though, now we're watching as many are challenging whether the settlement terms are legal or reasonable. I still think Google should have stuck with the pure fair use defense, showing that its use was transformative and different - similar to just indexing websites for linking purposes. Not only is it unfortunate that Google gave this up, because it's one less strong precedent over fair use, but it's now opened up the ridiculous claims by a bunch of other industries (newspapers, recording) demanding that Google "settle" with them as well, and hand over cash. Google's decision to back down was a big mistake, not just in terms of screwing over others trying to scan books (what most of the current complaints are about), but in denying a strong fair use precedent and making Google look like an easy place for struggling industries to demand cash.

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When Life And Work Blend, Everything Is Commercial Use

from the welcome-to-the-way-we-live dept

I was recently having a talk with a friend who was trying to determine what to do next with his life. He's not happy with his job and wants a "goal" for the future -- but isn't really sure what he wants to do. I suggested focusing on a hobby in the short term and devoting plenty of time to it. He felt that was the wrong approach, because a hobby is separate from a job, and the two would never connect. While that could happen, the internet today has made it increasingly easy to turn a hobby into a job in some way or another. It's not that you need to turn a hobby into a job. Sometimes it's good for a hobby to just be a hobby. But, if you focus on what you're passionate about, I think eventually different job opportunities start to come to you.

But it's this blurring of "personal" and "work" lives that again has me pondering if there really is a meaningful distinction between "commercial use" and "non-commercial use." Some of this debate first came about years ago, when some web publishers claimed that their RSS feeds were "for non-commercial use only," but what does that mean? If I read your site as part of my job, have I violated that rule? If I learn information from your feed that allows me to make money, have I violated that rule? More recently, there have been proposals to separate copyright violations, such that "non-commercial use" is allowed. But, again, you quickly run into very questionable scenarios. If my personal blog has Google AdSense on it, is it commercial use? If I end up getting a job because of my "personal use" of your content, does it suddenly morph into "commercial use"? The questions get more and more confusing, and the mess would make less and less sense.

These days, it seems that the distinction between personal, professional, commercial and non-commercial are becoming increasingly meaningless -- and that's not a bad thing.

With that said, I have to agree with Gordon Haff over at News.com that Creative Commons is making a mistake in trying to better define the meaning of "commercial use" for its "non-commercial" licenses. I'm already struggling with its current definition. I'm working on a presentation for a conference I'm attending next month, and found some images that are under a CC license that allows non-commercial use. I'm not getting paid for the talk itself, but I am doing it as a representative of Techdirt, which is a commercial entity. Is that commercial use? The presentation isn't about our business, though, but about what I usually write about here. Is that non-commercial use? I'm assuming it's non-commercial use, but these days, I have a hard time understanding what the difference is at all, and Haff is right that it's likely to lead to more confusion. The real answer is to simplify CC licenses, not make them even more complex.

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Why Doesn't Girl Talk Allow Commercial Use?

from the go-big-or-go-home dept

Legal trouble for Girl Talk -- an artist named Greg Gillis who released a "mash up" album using the pay what you want model -- is almost inevitable, but the situation gets even more interesting when you consider how the music is licensed. Girl Talk uses a Creative Commons Attribution-Noncommercial license for Feed the Animals, even though the songs on the album were made by using hundreds samples from other artists. Gillis claims his songs are fair use on the basis of being transformative and because the clips used are very short.

Aside from potential legal claims over the license if the fair use defense fails, why would Gillis -- an artist making commercial use of samples from others -- put a noncommercial restriction on his work? It seems a bit hypocritical. Granted, he does claim that "the CC license does not interfere with the rights you have under the fair use doctrine, which gives you permission to make certain uses of the work even for commercial purposes," but is the noncommercial restriction for other uses really necessary?

First of all, as Mike Masnick pointed out in his critique of a noncommercial copyright, the distinction between commercial and noncommercial use is extremely blurry. Equally blurry in this case is the distinction between transformative and non-transformative use. At what point exactly does a derivative work become transformative? But, more importantly, Mike asks "if someone else is able to do something commercially useful with my content, why should that be a problem?" Girl Talk ought to be a perfect example of this, yet Gillis seems to deliberately limit the possibilities through his choice of license.

Why attempt to limit the positive externalities? Maybe some of the artists sampled on the Girl Talk album will really like a song their music appears in and want to include it somehow on a release of their own, make use of it on their website, etc. Should those artists then be required to pay for the use of a song which includes samples of their own music? Maybe, but it seems like respecting "upstream" would help an artist like Gillis maintain a better relationship with the artists from which he's sampling.

Furthermore, what about people who might do something with the album that's potentially commercially useful for Girl Talk? For example, if someone were to make an interesting remix or video using Girl Talk's music , not only would they be required to refrain from commercial use themselves (unless it was fair use), but Gillis would require their permission to make use of it himself. If he had used a copyleft license like the Creative Commons Attibution-Share Alike, both he and any artists making derivative works would have the ability to monetize their efforts. Instead, derivatives are relegated to the realm of the amateur because, with a noncommercial license, the barriers of a permission culture are still intact for artists trying to make a living from their work. One would hope that Greg Gillis, of all artists, might realize the benefits of removing these barriers, especially on commercial use.

Blaise Alleyne is an expert at the Insight Community. To get insight and analysis from Blaise Alleyne and other experts on challenges your company faces, click here.

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What If Copyright Only Applied To Commercial Use?

from the a-step-forward dept

Earlier this week, we wrote about the Cato Institute's new series on the Future of Copyright, with a wonderful first post about just how broken copyright has become, written by Rasmus Fleischer. Our own Timothy Lee has now penned the second piece in the series, wondering if a middle ground would be to just focus copyright laws on commercial use, and allow people to make use of copyrighted content for personal use. As he notes, throughout most of history, copyright laws really only did apply to commercial use, in part because personal use wasn't even an issue.

Lee notes the inevitable trend towards having the music industry embrace things like file sharing in one way or another, suggesting that having copyright laws just forbid commercial exploitation wouldn't hurt the industry at all -- since most of the business models they're finally embracing route around the personal copying issue -- and would stop criminalizing people who are going to get access to content anyway. As per usual with Lee's writing, it's a great, well-reasoned, thought-provoking write up. Go read the whole thing.

However, while I agree that limiting copyright just to commercial use would be a step in the right direction, I'm still not convinced that the restrictions are necessary even for commercial use. Part of the problem is that the distinction between "personal use" and "commercial use" is extremely blurry. Is my personal blog "personal" or "commercial" if I put Google ads on it? What if I don't have ads, but use it to get a job or promote my company? Commercial use and personal use are not clear cut.

On top of that, if someone else is able to do something commercially valuable with my content, why should that be a problem? If anything, that should be encouraged -- and the end result will often be that it makes the original content more valuable. Google uses fair use defenses to protect itself from copyright infringement charges, but it's ridiculous to think that anyone is even complaining, since Google makes their content easier to find. And Google is most certainly a commercial entity. Having someone else do something commercial with content is a good way to help increase the value of that content, which is likely to flow back to the original creator anyway. Yes, some of the benefit will flow to the commercial entity, and some of the benefit may flow to others -- but these are positive externalities, as plenty of benefit will flow back to the original creator as well. Once you realize that these commercial uses are likely to expand the overall market, you want to get any obstacles out of the way, even if some others might benefit as well. Sticking an artificial construct like copyright in the middle just doesn't seem necessary, and actually makes the process less efficient. Imagine if Google needed to get permission from everyone before indexing their sites?

Lee suggests that without copyright law on commercial use, you would have a free rider problem, but that's not necessarily true. Companies that pick up business models that turn the free rider problem into a benefit won't have much of an issue. Issues about "counterfeiting" can be taken care of by anti-fraud laws, rather than copyright, and there will still be plenty of value in "authentic" versions of content and other forms of scarce goods connected to the content creator (access, live performance, new content creation, etc.). So, I agree that legalizing personal use is a sensible step, but I'm still not convinced that copyright even makes sense for commercial reasons.

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