How Big An Issue Are Orphan Works?

from the longing-for-a-public-domain dept

For a few years now, there’s been an effort underway to pass “orphan works” legislation that would help deal with the massive number of works that are clearly covered by copyright, but for which no copyright holder can be found at all. Even the US Copyright Office, who normally only believes that copyright law should go in one direction (i.e., more), has come out in favor of orphan works legislation. Of course, as copyright experts like William Patry have long pointed out, the “problem” of orphan works is a self-created problem. Prior to taking away the requirement for registering to get a copyright, there really wasn’t an orphan works problem, because (1) the copyright holders were registered and (2) most other works fell into the public domain, as they were either not registered, or the registration was not renewed. So, a better fix would be to go back to requiring such “formalities” (even if it goes against the sadly out of date Berne Convention rules).

In the meantime, though, since that doesn’t seem likely, many are pushing for such orphan works laws. Unfortunately, there has been a lot of blatant misinformation spread around against orphan works legislation, who insist that it’s really a way for companies to use works without paying for them. Of course, the various proposals for orphan works laws make it clear this is not the case. They all require the potential user to conduct a very real and very serious search for the copyright holder. You can’t just declare the the copyright holder can’t be found.

Of course, another complaint against orphan works legislation is that orphan works really aren’t much of a problem, as they’re somewhat “rare.” How rare are they? Well, Michael Scott points us to a report trying to quantify the number of orphan works in Europe alone. The numbers are pretty impressive:

• 3 million orphan books
• 129,000 orphan films (potentially up to 225,000)
• 17 million photographs

The report also mentions that 95% of newspapers from before 1912 are orphans, which seemed odd to me, since it seemed like anything published in 1912 should be in the public domain. The report notes that this is actually part of the problem, since copyright status depends on a variety of factors, and even works from pre-1912 may still be under copyright in Europe. As it notes “only material from as far as pre-1870 may relatively safely be assumed to be in the public domain.”

Filed Under: copyright, orphan works

The Guardian Makes It Super Simple For Blogs To Repost Its Content

from the contrarian-journalism dept

We’ve pointed out a few times that The Guardian newspaper in the UK is not just a believer in the value of keeping its content free online, but is also doing a lot of very interesting experiments. As we hear daily about newspapers and organizations like the Associated Press threatening to sue blogs that repost some of their content (even for commentary purposes), The Guardian is going in the completely opposite direction. As part of its Open Platform program, it has created a tool that lets any WordPress-based blog repost any Guardian article for free. Yes, this is the complete opposite of what most publications are doing. Rather than whining about “freeloaders” and “copycats” and “aggregators,” The Guardian has decided to embrace them and take advantage of the situation.

The only conditions are that you have to republish the full article in the exact format provided (including “text, links and images”). That’s because The Guardian is also embedding ads with those syndicated stories. Assuming the ads are not particularly intrusive or annoying, then I would imagine that many blogs find this to be a perfectly reasonable deal. And, yes, if you were wondering, the site doing the syndication is free to include their own ads elsewhere on the page. However, according to The Guardian’s explanation of this offering, you can add your own commentary — it just needs to go above The Guardian’s content.

Basically, the Guardian seems to be realizing what so many other newspapers have failed to grasp: that people republishing your stuff are helping to promote your work and spread your work in useful ways. Rather than breaking out the lawyers and the nastygrams, why not figure out a way to make everyone better off?

Filed Under: embedding, journalism, syndication
Companies: the guardian

More Law Firms Getting Into The Mass 'Pay Us Or We'll Sue You For Infringement' Business

from the piracy-into-profits? dept

We’ve seen enough reports of just how lucrative it has been for various law firms to get into the mass automated threat letter business by demanding payment from accused file sharers based on very slight evidence. The only thing that’s been surprising, really, is that we haven’t seen more law firms jump into the game. In the UK, there was Davenport Lyons, who more or less handed over that business to ACS:Law. Then there was — briefly — the UK law firm Tilly Bailey & Irvine, who were called out by a UK Lord as a “new entrant to the hall of infamy.” That resulted in TBI backing out of the business. In the US, of course, there was the recent high profile entrance of US Copyright Group (which is really the DC-based law firm Dunlap, Weaver and Grubb) as well as some indications that others are getting into the game as well.

TorrentFreak highlights another UK law firm, Gallant Macmillan, that has decided to join in on the “pay us or we’ll sue you” fun. It appears that Gallant Macmillan has gone out of its way to try to indicate it’s not “as bad” as those who came before it, but it’s still in the same basic business. Of course, the more law firms that start down this road, the more attention the practice will get among politicians — and the more likely that these sorts of quasi-extortion-like efforts gets shut down both in the UK and the US.

Filed Under: copyright, pre-settlement letters, threat letters, uk
Companies: acs:law, gallant macmillan, us copyright group

With The Recording Industry In Free Fall, Why Are RIAA Bosses Getting Raises?

from the rewarding-failure dept

It’s difficult to think of a more disastrous strategy pioneered for the recording industry than the one cooked up by RIAA bosses Mitch Bainwol and Cary Sherman. The two were the “masterminds” behind the plan to sue fans directly, which has been an uncontested disaster that did absolutely nothing to help the bottom line of the record labels. If anything, the evidence suggests that the lawsuit strategy has only galvanized folks to look for alternatives beyond spending money on RIAA labels. The RIAA finally dropped the lawsuit strategy, which was deemed a money pit by a recording industry exec and almost resulted in EMI leaving the RIAA. After all of that, the RIAA itself had massive layoffs.

Given all of that, you might think that Bainwol and Sherman should be looking for new jobs. Instead, apparently, they’ve been given hefty raises. P2Pnet notes that Bainwol in 2008 made over $2 million dollars — an increase from the $1.485 million he made in 2007. Sherman made $1.332 million, noticeably more than the $985k he made a year earlier. While I don’t have any issue with the absolute amounts, I do question why these guys are getting raises while presiding over what will clearly be looked back on as one of the biggest blunders by an industry in decades. On top of that, I can see how some might question how the RIAA can claim to represent “starving artists” when its execs are doing so well. Apparently, the answer to not being a starving artist is to go become boss of the RIAA.

Filed Under: cary sherman, mitch bainwol, salaries
Companies: riaa

Looking More Closely At Judge Gertner's Constitutional Analysis Of Copyright Awards In Tenenbaum Case

from the the-battle-is-on dept

Last Friday, we quickly covered the news that Judge Nancy Gertner had declared the original jury award of $675,000 against Joel Tenenbaum for downloading and sharing some songs unconstitutionally excessive. Over the weekend, however, I had some more time to read the full ruling (posted by Eric Goldman) and get a sense of what Gertner’s full argument meant. You can read the ruling here, and I highly recommend taking the time to read the whole thing:

In it, she clearly explains why the Constitutional analysis was necessary (she could have just reduced the award using the remittitur process, but noted that the RIAA made it clear they would challenge such a ruling, and thus it would eventually come around to the Constitutional questions no matter what.

So with that in mind, she clearly gave a lot of thought to the Constitutional questions, and goes back to the key point, that if the punishment is seriously out of line with any sort of “harm” caused, then it’s unconstitutional. She notes that she must give deference to Congress’ intent with the statutory rates it set for copyright infringement, as well as to the jury’s verdict. But, even so, she suggests that the jury’s award was way out of line with reasonable awards in other copyright lawsuits… and (more importantly) way out of line with Congress’ intent of using statutory rates to deter infringement:

This award is far greater than necessary to serve the government’s legitimate interests in compensating copyright owners and deterring infringement. In fact, it bears no meaningful relationship to these objectives.

In attacking the Constitutional questions, Judge Gertner spent a lot of time highlighting the case law on the Due Process Clause, noting many, many cases where the Supreme Court has made it clear that there are limits to what should be considered Constitutional when it comes to jury awards — even in the case of statutory awards (even if the courts often seem to rule that in the cases they’re looking at, the line has not been crossed).

Defenders of both the original Jammie Thomas award and the Joel Tenenbaum award have frequently claimed that the case law (mainly the BMW v. Gore case) doesn’t apply since that was not for statutory damages, where the rates are clear and already set. That’s going to be a key point made in the inevitable challenge to this ruling. But Gertner aptly explains why it’s reasonable to explore whether or not the award is unconstitutionally excessive, even when it’s within the statutory rates, and even suggests that both the government and the RIAA are misreading other precedents — with the key one being the Williams case, which found a damages award acceptable because it fell within statutory rates. Gertner points out that the RIAA and the government are taking that ruling out of context, and only looking at the result, rather than the actual reasoning.

At their root, the standards articulated in Williams, BMW, and State Farm all aim at providing defendants with some protection against arbitrary government action in the form of damages awards that are grossly excessive in relation to the objectives that the awards are designed to achieve. Indeed, early twentieth century cases such as Williams were the seedlings from which the Supreme Court’s recent punitive damages jurisprudence sprouted.

She also notes that even in the Congressional record in efforts to increase the statutory rates, Congressional members suggested that courts would make sure the actual awards were reasonable and not excessive:

In fact, Senator Orrin Hatch, a sponsor of the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999, which increased section 504(c)’s statutory damages ranges to their current levels, stated in remarks regarding a predecessor of that bill, “In most cases, courts attempt to do justice by fixing the statutory damages at a level that approximates actual damages and defendant’s profits.”

That line right there might be pretty damaging to the RIAA’s typical claim that courts are just supposed to assume that Congress knows best in setting the rates, and shouldn’t try to approximate actual damages with statutory rates.

From there, Judge Gertner applies the test found in the BMW case, and points out that (contrary to some of the silliest claims from copyright system defenders), Congress clearly did not expect lawsuits against individuals sharing files for personal use when it set such high rates:

Later statements by Senators Orrin Hatch and Patrick Leahy, two sponsors of the Digital Theft Deterrence Act, strongly suggest that Tenenbaum is correct; they did not anticipate that individuals such as Tenenbaum who engaged in noncommercial file-sharing would be subjected to liability for statutory damages under section 504(c). Hatch and Leahy presided over a Senate Judiciary Committee hearing titled “Music on the Internet: Is There an Upside to Downloading?” on July 11, 2000…. During the hearing, the committee members demonstrated how the peer-to-peer system Gnutella is used by downloading and then playing a song by the band Creed. … As the committee was downloading the Creed song, Senator Leahy proudly proclaimed that he was doing some of his own downloading on his laptop. … When one of the developers of Gnutella pointed out to the committee members that they might be engaging in copyright infringement, Senator Hatch responded that their downloading and public performance of the Creed song qualified as “fair use” since it was carried out for “educational and governmental purposes.” … Nevertheless, the senators’ willingness to download copyrighted sound recordings through a peer-to-peer network during a committee hearing suggests, at the very least, that they did not view such downloading as particularly reprehensible.

And this inference from the senators’ conduct is largely confirmed by their words. Although Senator Hatch noted that peer-to-peer technology had the capacity, “if misused, to rob [artists] of their livelihood,” … he also praised the development of Gnutella as “quite an accomplishment,” … And Senator Leahy added:

[W]hen I go on college campuses, as many of us do, to talk and everybody is talking about what they have downloaded, how they share, and so on, and when my kids pick up a “Black Muddy River,” which happens to be one of my favorites of the Dead, and send it to me — they have heard a new version — and I log on in the morning while I am having my breakfast and there it is, I mean this is a whole different world, and I think we have to recognize that on where we go.

Senator Hatch’s tolerance of, if not admiration for, peer-to-peer networks was even more on display at a special Judiciary Committee hearing held on October 9, 2000, at Brigham Young University (“BYU”). … Shawn Fanning, the founder of Napster, was the star witness at this hearing, and Senator Hatch repeatedly praised Fanning, expressing how “proud” he was of Fanning and even suggesting that Fanning should become a professor at BYU or run for political office. … Obviously, Senator Hatch’s comments should be taken with a large grain of salt… But his comments nevertheless suggest that he did not anticipate that the statutory damages scheme over which his committee had jurisdiction would be applied to users of Napster and other peer-to-peer networks.

I have to admit that I was unaware of these quotes from Senators Hatch and Leahy — both of whom are normally seen as being very strongly in favor of strict copyright laws (Hatch, famously, once suggested coming up with a way to destroy the computers of file sharers).

On top of that, Judge Gertner compares the fines for Tenenbaum with restaurants and bars that have not paid their licenses, noting that those are clear cases of infringement for commercial reasons, yet the fines are a small multiple of the cost of a license. She points out that this seems like a much more egregious case, yet the awards are much lower:

The jury’s award in this case also appears egregious in light of the damages typically imposed on restaurants, bars, and other businesses that play copyrighted songs in their establishments without first acquiring the appropriate licenses. These defendants are arguably more culpable than Tenenbaum. Unlike Tenenbaum, who did not receive any direct pecuniary gain from his file-sharing, defendants in these cases play copyrighted music to create a more pleasurable atmosphere for their customers, thus generating more business and, consequently, more revenue…. In addition, defendants accused of unlicensed public performances often receive several notices that their conduct is unlawful before they are sued. Thus, like Tenenbaum’s file-sharing, their infringing conduct is generally willful. …. Nevertheless, the awards in such cases are generally no more than “two to six times the license fees defendants ‘saved’ by not obeying the Copyright Act”–a ratio of statutory to actual damages far lower than the ratio present in this case.

Clearly, this case is nowhere close to over, but it is still interesting to read through the details of the ruling. Obviously, Gertner knows this is going to be appealed, and she put a lot of effort into making the case for why this ruling was excessive, in hopes of having her reasoning help carry the later appeals.

Filed Under: copyright, damages, jammie thomas, joel tenenbaoum, nancy gertner
Companies: riaa

Another UK Hairdresser Fined For Turning On Her Radio

from the no-more-radio dept

We recently wrote about a UK hairdresser being fined for not paying the PPL license for playing a radio in his shop — even though he’d already been paying the PRS license. Now, if you follow this stuff, you probably know that PPL and PRS cover different aspects of collective licensing, but it strikes many, many people as being patently ridiculous that they need to pay two separate license fees just to turn on a radio in your shop. That story has a rather epic comment thread (well over 500 comments at this point), mainly involving one very, very insistent UK resident who sees no problem with this setup. Of course, he also states that if something is in the public domain it means no one’s allowed to sell it at all — so he’s a bit confused on the subject.

In the meantime, however, it appears that PPL has decided that targeting hairdressers and barbershops is in the best interests of its members. mike allen points us to the news that a second hair salon in the same town has been hit with fines. Like the first, she had no idea she had to pay two separate licenses just to turn on her radio, and thought that when a PPL person called (and wouldn’t leave a callback number) that it was an obvious shakedown scam. Unlike the other guy, this hairdresser is refusing to pay, saying that the whole thing is ridiculous, seeing as she already paid for a license from PRS.

Once again, while people who are heavily involved in this stuff understand the difference between the licenses, it’s pretty ridiculous for anyone to expect a mom & pop shop owner to do the same. All these actions are doing is convincing everyday folks just how ridiculous copyright law is — while, at the same time, convincing these shops to just turn off their radios, which helps no one. It’s such an incredibly short-sighted view by PPL.

Filed Under: hairdresser, licensing, radio, uk
Companies: ppl, prs

WSJ Opinion Highlights The Problems Of 'Permission Culture'

from the that's-not-how-the-world-works dept

A bunch of folks have been sending in this Wall Street Journal opinion piece by author Tony Woodlief, where he aptly demonstrates the problems with the “permission culture” we’ve built up around copyright today. Often we’ll discuss some of these things in posts, and defenders of the existing copyright regime will say “well, it’s no problem, because you can just ask for permission” (here’s an example of that kind of thinking). Of course, the reality is that it’s not so easy at all. Woodlief points out that publishers are taking a very short-sighted view and demanding ridiculous amounts of money for tiny snippets of use, such that it makes no sense to use those works at all, and often the original content creators and society is worse off for it:

The copyright thicket is a growing frustration among writers and editors. One editor of a popular literary anthology (who asked to remain anonymous for fear of reprisals from publishers) confirmed that many publishers pursue illusory short-term profit at the expense of both profit and art. By demanding fees that most people won’t pay, they forsake free advertising for the artists they claim to protect….

Further, this editor noted that one reason literary anthologies and college-course syllabi have replaced classics with less edifying sources like newspaper articles and diaries is simply that major artists in the American literary canon are too expensive to procure en masse, if not totally off limits. The estates of William Faulkner and Ernest Hemingway have historically restricted which stories can be used in anthologies, which means that students often have a narrow exposure to two of our country’s finest writers.

Woodlief talks about his own experiences trying to quote a single eight-word line by songwriter Joe Henry in his recent book, and the fees were simply ridiculous:

But in dollar terms, some decisions by copyright holders, rather than optimize the artist’s revenue and distribution, insure the opposite. When I asked to use a single line by songwriter Joe Henry, for example, his record label’s parent company demanded $150 for every 7,500 copies of my book. Assuming I sell enough books to earn back my modest advance, this amounts to roughly 1.5% of my earnings, all for quoting eight words from one of Mr. Henry’s songs.

I love Joe Henry, but the price was too high. I replaced him with Shakespeare, whose work (depending on which edition you use) is in the public domain. Mr. Henry’s record label may differ, but it’s not clear that his interests –or theirs–are being served here. Were they concerned that readers might have their thirst for Mr. Henry’s music sated by that single lyric? Isn’t it more likely that his lyric would have enticed customers who otherwise wouldn’t have heard of him?

Now, there are some problems with the article, some of which are aptly pointed out by Christopher Harbin. For example Woodlief suggests that copyright is about guaranteeing income to creators, when it’s actually about creating incentives for creators to add to the public domain. He also takes issue with the lack of recognition of the overall benefit of the public — and no mention at all of fair use. Specifically, Harbin points out that with Joe Henry this is a clear fair use situation:

One line from one song that doesn’t hurt the market of Joe Henry’s song is fair use, bud. You don’t need to seek permission because you own it already. Joe Henry doesn’t get to control every use of his work, only unfair ones.

While I agree with Harbin that this should be fair use, the unfortunate reality these days is that publishers won’t touch such quotes without permission being granted. It’s almost impossible to find a publisher these days that would sign off on even that snippet of eight words, claiming that they don’t want the liability of a lawsuit. I’ve had this discussion a few times with authors and publishers, and they all say the same thing: due to the potential liability of a lawsuit, even if it clearly does appear to be fair use, it’s just not worth using the quote. In fact, we discussed this point here last year, where we wrote about an author who had to drop an entire section of a book, because of a few short quotes. Clear fair use… but his publisher wouldn’t touch it. So I’d say Harbin goes a little too far in suggesting this is a purposeful omission by someone who wants to deny fair use. It seems more likely that Woodlief is accurately describing the state of the industry today, where threats of lawsuits have made permission culture the norm, even in cases of obvious fair use.

And that’s where this “permission culture” has brought us. It’s eating away at fair use. It’s eating away at creativity. It’s eating away at education. It’s eating away at culture. And very, very few people seem to recognize how far it’s already gone.

Filed Under: copyright, fair use, permission culture, quoting, tony woodlief