Finland Says 1Mb Broadband Access Is A Legal Right

from the my-rights-are-being-trampled dept

While the US is still struggling to figure out how to define broadband and where it's even available, Finland has decided that 1Mb broadband access should now be considered a legal right, with plans to boost that to 100Mb by the end of 2015. There do appear to be some exceptions for remote households, but if I were living in Finland right now, instead of the heart of Silicon Valley, my "legal rights" would be denied. While I'm not sure it makes sense to define broadband as a legal right, it's yet another reminder of how far behind the US appears to be on broadband deployments.

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Judge Says Copyright Holders Must Consider Fair Use Before Sending DMCA Takedowns

from the this-isn't-over-just-yet... dept

Strong copyright system supporters have always tried to push aside fair use. Sometimes they pretend it doesn't actually exist. Sometimes, they claim that it stifles creativity. However, in the last few years, they've pretty much aligned their talking points on fair use. You'll hear it repeated again and again: fair use is "just a defense, not a right." This is a bit of semantics that basically tries to minimize what fair use represents and what it's designed to allow. The argument, effectively, is that there's no "right" to fair use, and there's no clear cut meaning for fair use. Instead, it can and should only be brought up as a defense in court. In other words, fair use does not exist until a court says it exists.

This is misleading and not entirely correct. The reason fair use is allowed as a defense is because there is a right to make use of certain types of content in certain types of ways that constitute "fair use" without first needing to receive permission from the copyright holder. But, it was still this argument that Universal Music recently used to defend itself against a lawsuit from the EFF, concerning the now infamous 29-second video of a little kid dancing, with some music from Prince playing in the background. Everyone now agrees that this video was fair use. Universal Music let the video go back online and did not sue. The DMCA has a clause that allows damages to be sought against a falsely filed takedown notice -- which was basically designed to punish those who send a DMCA takedown claiming copyright over something for which they do not actually hold the copyright. In this case, the EFF claims that since this is obvious fair use, then the DMCA notice was falsely filed. Universal, on the other hand, asked the court to dismiss the case, saying it need not consider fair use when filing a DMCA takedown notice -- mainly because fair use is just a defense, not a right.

The judge handed the EFF something of a victory, though, allowing the case to move forward and noting that copyright owners should consider fair use before sending out takedown notices. To be honest, I'm a bit surprised by the decision. While I agree that it makes sense, it wasn't at all clear that the law actually meant for fair use to be taken into account. In fact, I rather doubt that this sort of scenario was even considered by those who wrote and debated the DMCA. Universal will likely appeal on this point, and so we're pretty far from establishing definitively if fair use needs to be taken into account. However, if this ruling stands, the claim that "fair use is a defense, not a right" loses a lot of its bite. The court effectively said the opposite:

Even if Universal is correct that fair use only excuses infringement, the fact remains that fair use is a lawful use of a copyright. Accordingly, in order for a copyright owner to proceed under the DMCA with 'a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law,' the owner must evaluate whether the material makes fair use of the copyright.

The judge also noted that it wasn't any sort of onerous burden to expect the copyright holder to make a fair use determination, since it has to review the content to make sure it's infringing in the first place:

Undoubtedly, some evaluations of fair use will be more complicated than others. But in the majority of cases, a consideration of fair use prior to issuing a takedown notice will not be so complicated as to jeopardize a copyright owner's ability to respond rapidly to potential infringements. The DMCA already requires copyright owners to make an initial review of the potentially infringing material prior to sending a takedown notice; indeed, it would be impossible to meet any of the requirements of Section 512(c) without doing so. A consideration of the applicability of the fair use doctrine simply is part of that initial review.

All in all, this is a definite win for supporters of fair use -- and a definite loss for those who trot out the "defense, not a right" line. As for the rest of this particular case, though, the judge indicated that the EFF may have a difficult time winning, noting that even if the copyright holder takes fair use into account, the specifics would have to be pretty extreme to then decide that it used "bad faith" in sending the takedown. In other words, the judge is saying that Universal should take fair use into account, but that doesn't mean that sending the takedown was done in bad faith.

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Sometimes The Customer Is Wrong

from the better-customers dept

My friend Jacob Grier weighs in on a story that's been getting a ton of attention: some guy went into a DC-area coffee shop called Murky Coffee (where Jacob once worked) and asked for an iced espresso. The barista told him that the shop has a policy against making iced espresso. The barista agreed to give the guy an espresso and a cup of ice so he could ice his own espresso, but a shouting match ensued and the customer wound up leaving a dollar tip with a message that's not printable in a family blog. The owner of Murky's Coffee responded here.

At first glance, it seems like if the customer wants his espresso poured over ice, that's what the customer should get. But Jacob makes an interesting point: Murky's fastidiousness (or pig-headedness, depending on your perspective) about coffee quality is part of what sets it apart from the run-of-the-mill coffee shops. Murky isn't just selling coffee, they're also trying to build up a clientele that takes coffee seriously. This reminds me of a great post Don Marti wrote a couple of years ago called "FUD is good for you." Marti pointed out that while it's true that Microsoft's disinformation about free software could actually drive away some potential customers from free software, that's not necessarily a bad thing. These are, after all, likely to be the least technically-savvy customers, customers who will consume a disproportionate share of tech support resources and unlikely to be repeat customers. In the long run, the company might find it's actually more successful because some of its customers were scared away by FUD. I think we can see the same kind of attitude at Apple. For example, Steve Jobs took a lot of heat when he unveiled the iMac in 1998 without a floppy drive -- one small part of a broader strategy of giving customers what Jobs thought was good for them rather than what they asked for. That attitude has alienated a lot of potential customers over the years, but it has also produced a lot of repeat customers who are more loyal than the customers of any other computer company. In contrast, the PC vendors that have tried to serve every customer have wound up in a brutally competitive market with razor-thin margins.

There are two lessons here. One, not all customers are created equal. To most customers, coffee is all pretty much the same, and one coffee shop is about as good as another. (Just as one all PCs and software stacks are pretty much the same.) But there's also a minority of customers who pay more attention to quality, and the latter will tend to be a lot more valuable because they'll be more loyal and more prepared to pay a premium for quality. If it's true that icing an espresso ruins it (personally I think coffee is all revolting, so I'm agnostic on the question), refusing to serve iced espressos may be a good business strategy; the customers it drives away probably wouldn't have stuck around for very long anyway. Similarly, Apple's high-handed approach to its customers seems to have worked fairly well for it. It's a niche player in the PC market, but it has proven to be an extremely profitable niche. Second, sometimes customers only discover quality after it's shown to them. It turned out that Jobs was basically right about the floppy drive; I bought an external floppy drive for my iMac but almost never used it. Similarly, Jacob notes that the coffee shop customer seems to have enjoyed the alternative iced beverage that was suggested to him. I doubt that particular customer will be back, but there may be others who develop a taste for the specialty coffee served at Murky and then start to notice the defects of coffee from run-of-the-mill coffee shops. Niche businesses can create loyal customers by guiding them towards more refined tastes, and this can be more rewarding than trying to comply with every whim of every customer.

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

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