Why Yes, Copyright Can Be Used To Censor, And 'Fair Use Creep' Is Also Called 'Free Speech'
from the copyright-insanity dept
So, as we’d been discussing, Congress recently had a hearing about copyright reform that was supposed to be about the “content creators'” view of copyright — but which actually mostly presented the views of the legacy industry which makes money off the backs of creators, rather than hearing from any creators themselves. The hearing was about as silly as you might expect, with Parker Higgins from EFF presenting a good run down of the problems, including the claims that it’s copyright that enables free speech, that copyright is good because it’s “about control” and that “fair use creep” is dangerous. Of course, if you want a funny, and nearly totally wrong counterpoint, you can read the overview from Tom Giovanetti, who runs a “think tank” that is a favorite of copyright maximalists. Let’s compare and contrast, and add some reality.
Giovanetti insists that copyright should be about “control.”
Several Twitter critics insisted that, while copyright no doubt has economic benefits, it also functions as “an instrument of control.”
But of course copyright involves control, and rightly so. Control is implied in all property rights. Without some degree of control, you cannot enter into contracts, you cannot license, and copyright becomes impotent—little more than a credit or an attribution. But a credit alone does not incentivize creation, innovation, and distribution of new works. Ownership always involves a degree of control.
Except, as Higgins noted, the purpose of copyright has never been about “control.” It has always been to “promote the progress of science” for the benefit of the public.
Most striking was the repeated assertion that copyright should be understood primarily as a mechanism of control. Testimony from Sandra Aistars, the director of the Copyright Alliance, was explicit on this point. That’s funny, because we thought it was supposed to be a mechanism to promote new creativity. Ironically enough, Aistars also claims that copyright “is about choice” and “freedom.” Choice and freedom for some people, that is: under her construction of copyright, a grant of copyright is designed to concentrate all of the choice with the copyright owners, at the expense of the public.
Of course, Giovanetti’s claim that “property rights needs control” is misleading for a whole variety of reasons. First off while the actual copyright itself might be a form of property in that it can be bought and sold, the underlying content is not. That’s an important distinction that often gets lost in the mix. Furthermore, while it’s true that for true property part of the point of property rights is to “control,” when you’re talking about speech and expression — things that are in abundance — it makes no sense to use it as a tool for control, for a variety of reasons. The reason you want control of tangible property is to avoid having someone else claim it. But copyright is not about that at all. It is, according to the Constitution, solely a tool to promote the progress of knowledge and information. Furthermore, we already have aspects of copyright law today that recognize it’s not about control — including things like compulsory licenses.
Then Giovanetti makes a patently ridiculous statement that copyright holders never want to censor anything:
Several others made the ridiculous assertion that copyright is used to “censor.” But as Sandra Aistars of the Copyright Alliance noted in her statement, copyright is “core to protecting our First Amendment rights of freedom of expression.” Copyright holders are champions of the First Amendment, have every incentive to see their work disseminated as widely as possible, and have no reason to censor anything. It’s a preposterous charge, manufactured by ideologues to create a false premise that copyright is somehow in tension with consumer interests.
Oh really? So, KTVU wasn’t trying to block the video of its newscaster (accidentally, stupidly) using racist slurs about the Asiana Air pilots? NBC wasn’t trying to censor Senator Warren when it pulled a clip of her schooling CNBC news anchors? St. Louis University wasn’t trying to censor a faculty member when it threatened him with copyright infringement for daring to send a survey to other faculty members? The government didn’t censor a hip hop blog after seizing it and shutting it down for an entire year on bogus claims of copyright infringement, which it never had any evidence to support? The Russian government didn’t use copyright to censor activists by raiding their offices and shutting them down with bogus claims that they were using infringing copies of Microsoft software? Copyright wasn’t used to block the livestream of the Democratic National Convention? Or the official livestream of the Hugo Awards? Universal Music didn’t use copyright to censor a negative review of Drake’s album? Musician Dan Bull wasn’t censored when copyright was used to block his commentary video about a different copyright infringement case? A Miami business man wasn’t using copyright as censorship when he used copyright to sue a blogging critic because she posted an “unflattering photo” of him? A TV station didn’t use copyright to censor Free Press after it got upset about claims about its actions? Copyright wasn’t used to silence a blogger after a blog fight over birthing methods? Some filmmakers didn’t censor a Berkeley professor’s documentary about how they portrayed Asian women in films with a copyright claim? Howard Hughes didn’t use copyright to censor a biography he didn’t like? The James Joyce estate wasn’t censoring Kate Bush by refusing to let her quote Joyce in a song lyric? Or when it used copyright to stop a professor from writing a biography on Joyce?
All of that is impossible according to Giovanetti. It makes you wonder if he’s even remotely familiar with modern copyright law and how it’s used. The paragraph above is just a very short list of examples.
And, in fact, it’s why it’s so troubling that, in the same hearing, a few of the witnesses tried to hit back against fair use, arguing that “fair use creep” was dangerous. As Higgins notes:
On multiple occasions, the expansion of fair use, or “fair use creep,” was trotted out as a bogeyman undermining the business models that have traditionally worked for the content industry. Of course, fair use is both legal and critical for copyright to co-exist with real freedom of speech, especially given that copyright can cover works that are many decades old and part of the fabric of history. Moreover, fair use has been under assault for decades, thanks to laws like Section 1201 of the DMCA, which makes it illegal to bypass a technical protection measure under most circumstances even if your conduct is an otherwise lawful fair use.
In fact, the courts have pointed out that fair use is a key “safety valve” in preventing copyright from being used for censorship — clearly recognizing that (contrary to Giovanetti’s ridiculous and unsupportable claim) copyright can be and is used for censorship and to stifle free speech all too often. And yet, the panelists now want to limit that already extremely narrow safety valve? And they don’t expect even more censorship to occur?
There are plenty of things to debate about copyright law today, but the debate needs to live in reality. That means that it needs to recognize the actual basis for copyright law: promoting the progress, not giving creators a tool for censorship. And it needs to recognize further the reality of today, which is that the tool can be too blunt and is all too frequently used to censor and stifle free speech.
Filed Under: censorship, congress, copyright, copyright hearing, fair use, free speech, tom giovanetti
Comments on “Why Yes, Copyright Can Be Used To Censor, And 'Fair Use Creep' Is Also Called 'Free Speech'”
Correction
Second to last paragraph: …clearly recognizing that (contrary to Giovanetti’s ridiculous and unsupportable claim) that fair use can and is used for censorship and to stifle free speech all too often.
I think you meant “copyright” there, not “fair use.”
All those examples you list, are not really "creators"...
They’re mis-using a perfectly good tool. All you’ve exampled are copying grifters on the one hand, and bullies on the other. Proves nothing except that you take every chance to attack copyright. You’re down to the false analogy level of: you can kill with an ordinary dinner fork, so do away with them. And to cover your broad stroke: using someone else’s specific work is at best not the same as either “censorship” or “free speech”.
“First off while the actual c
Re: All those examples you list, are not really "creators"...
The law isn’t a tool, it’s a rule dictating what sort of behavior we want to allow and disallow and if it can be misused, it needs to be fixed. Saying, “well sure people can use it to do evil if they want to, but “they aren’t using it right, it’s not the law’s fault” is pretty pathetic.
Re: Re: All those examples you list, are not really "creators"...
Fixed because of Mike Masnick’s outliers?
People run red lights. Go fix the law. Do it now.
Re: Re: Re: All those examples you list, are not really "creators"...
Obviously the situation that needs to be fixed is when the wrongdoing is enabled by the law. If your wrongdoing is already against the law, then what is to fix?
Running red lights is already against the law.
Re: Re: Re: All those examples you list, are not really "creators"...
To clarify, the problem that needs to be fixed isn’t that some people do evil, but that the law sanctions evil or wrongdoing.
Re: Re: Re:2 All those examples you list, are not really "creators"...
LOL What “evil” is the law “sanctioning”?
You pirate-types are truly hilarious.
Re: Re: Re:3 All those examples you list, are not really "creators"...
LOL What “evil” is the law “sanctioning”?
Seriously? All of the “examples” that OOTB was talking about.
Read the paragraph that starts with “Oh, really?” and ends with “Joyce.” All of those actions taken by copyright holders are far more of a social evil than is copyright infringement itself.
Re: Re: Re:4 All those examples you list, are not really "creators"...
Literally billions of transactions worldwide on a daily basis that in some measure touch upon copyright law, and yet one here is being asked to believe that some actions that may fall outside the intent of the law are representative of a significant number or such transactions, perhaps even representing the norm. Surely you cannot be serious.
Re: Re: Re:5 All those examples you list, are not really "creators"...
Oh, right, by which you mean how supermarkets are an “IP-intensive industry”.
Not convinced. Copyright be damned, I will still purchase vegetables as and when needed.
Re: Re: Re:5 All those examples you list, are not really "creators"...
Literally billions of transactions worldwide on a daily basis that in some measure touch upon copyright law, and yet one here is being asked to believe that some actions that may fall outside the intent of the law are representative of a significant number or such transactions, perhaps even representing the norm.
It doesn’t have to be “the norm” to cause significant social ills. If the law allows situations like those above to happen even once, then the law is problematic, and needs to be changed. The fact that it happens a whole lot of times – and that paragraph is merely the tip of the iceberg – shows that the law is broken.
It especially needs to be fixed when the fix would not impact the “literally billions” of legitimate transactions. Something like a federal anti-SLAPP law, that would include copyright lawsuits, would accomplish this.
In any case, it makes it clear that Giovanetti’s claim that copyright holders “have no reason to censor anything” is a total lie. As I wrote in an earlier comment, some of the testimony given in this very hearing celebrates censorship as a legitimate use of copyright.
Re: Re: Re:3 All those examples you list, are not really "creators"...
Well, that would be the actions that the O.P. and I agree to be morally wrong (evil is just a convient term here) and that were discussed in his post (censoring of political speach with copyright claims, etc). And that he was trying to say were not a problem because they were not currently being done en-mass.
The ability to do those things as I’m sure you are aware is first created and second protected by current copyright law.
Re: All those examples you list, are not really "creators"...
So then, You would agree that we need actual punishments for those who are “mis-using a perfectly good tool.” to discourage such misuse?
All those examples you list, are not really "creators"...
They’re mis-using a perfectly good tool. All you’ve exampled are copying grifters on the one hand, and bullies on the other. Proves nothing except that you take every chance to attack copyright. You’re down to the false analogy level of: you can kill with an ordinary dinner fork, so do away with them. And to cover your broad stroke: using someone else’s specific work is at best not the same as either “censorship” or “free speech”.
“First off while the actual copyright itself might be a form of property in that it can be bought and sold, the underlying content is not.” — HUH? You’re splitting off “copyright” from the specific expression? Whew. Novel. The “content” is what’s copyrighted, Mike…
Take a loopy tour of Techdirt.com! You always end up same place!
http://techdirt.com/
If you’re against copyright, quit putting your name on posts! You don’t own the idea!
[3rd attempt, still now showing all.]
Re: All those examples you list, are not really "creators"...
All those examples you list, are not really “creators”… They’re mis-using a perfectly good tool.
So when someone uses copyright to censor speech they don?t like, it counts as a mere ?misuse? instead of government-sanctioned censorship? (And make no mistake about that last bit: because the government grants people copyright through the law, censorship by copyright equals government-sanctioned censorship.)
All you’ve exampled are copying grifters on the one hand, and bullies on the other.
I?d love to hear which side you think people and groups such as a St. Louis U faculty member, critics of the Russian government, a music reviewer, musician Dan Bull (an actual ?content creator?!), a critic of the owner of the NBA?s Miami Heat, and Free Press all come down on.
Oh, and by the by: you can find links to all those examples in the actual article.
Proves nothing except that you take every chance to attack copyright.
If anything, Techdirt attacks the application of copyright in ways far beyond what its initial creators could have ever intended. How could the people who wrote the Statute of Anne have ever conceived of a time when copyright would have to contend with technology that all but shatters the foundations of copyright, much less a time when copyright would become the tool of censorous asshats who want to silence critics, political opponents, and people they just plain don?t like?
you can kill with an ordinary dinner fork, so do away with them
Not once did this article ever say anything about abolishing copyright altogether. This article advocates a more realistic, less one-sided (in favor of the multimedia conglomerates), ?keep the general public in mind? debate on the subject of copyright. Nothing about Mr. Giovanetti?s comments suggest that he wants a realistic discussion about the impact of copyright on the common man or has the general public?s interests in mind during this discussion.
using someone else’s specific work is at best not the same as either “censorship” or “free speech”
I beg to differ.
I?ve used your specific work (your comment) as part of my ?derivative? work (my reply to your comment) in an attempt to offer commentary on your work (my holding-back-the-snark-and-bile-you-deserve commentary). In other words: I made use of Fair Use to comment on your comment. (Insert your own ?yo dawg? joke/meme here.)
Any legal scholar with their head not lodged firmly up their ass would consider my comment as an exercise of my right to Free Speech and any attempt by you to silence my speech by way of a DMCA takedown as an attempt to censor my legally-protected speech.
HUH? You’re splitting off “copyright” from the specific expression?
?okay, yeah, I?m a bit stumped on that one.
Re: Re: All those examples you list, are not really "creators"...
“Not once did this article ever say anything about abolishing copyright altogether”
He’s a known idiot, with no sense of nuance and an obsessive need to try and pretend that there’s arguments made here that are never made, so that he has a reason to launch impotent idiotic attacks. This is one of the regular examples – if you question copyright, you must be advocating for its complete destruction. Other arguments include: if you question enforcement tactics, you must be a pirate; if you state that free products can lead to sales, you must be saying that everything must be free; and so on…
Re: Re: All those examples you list, are not really "creators"...
Don’t waste time with OOTB. This guys is too dumb. Maybe it’s contagious.
Re: All those examples you list, are not really "creators"...
“First off while the actual copyright itself might be a form of property in that it can be bought and sold, the underlying content is not.” — HUH? You’re splitting off “copyright” from the specific expression? Whew. Novel. The “content” is what’s copyrighted, Mike…
No, that’s absolutely standard, actually.
When dealing with copyright law, there are typically three different things that get discussed.
First are creative works. Creative works are intangible information capable of being fixed into a tangible object. In fact, one work can exist in multiple objects simultaneously, and the destruction of one such object does not result in even the slightest harm to the work itself. A work is only lost when it is not fixed, and cannot be fixed, anywhere. Many works still exist even though the original copies they were first fixed in are long gone, such as the Bible or the plays of the ancient Greeks, because they were constantly being recopied into more tangible objects even as older copies were lost or destroyed. Creative works do not require copyright in order to exist; this is demonstrably true as they have existed for many thousands of years far into prehistory, while copyright is a relatively recent invention in comparison, dating to the 18th century. An example of a creative work would be the story and dialogue of a book, as distinct from the various forms into which it might be fixed, such as a codex, an ebook, a scroll, or an audio recording of it being read aloud. You and Mike were both calling this ‘content.’
Second are copies. Copies are the tangible objects into which a creative work has been fixed. Whether it is the original copy into which a work has been fixed for the first time, or just one out of an edition of millions, they’re all basically interchangeable in that that they each embody the creative work. Some individuals might value one copy over another — the original copy of the Mona Lisa painted by DaVinci is worth more than a perfectly accurate counterfeit — but then again the poster of a painting I have on my wall is of more value to me, personally, than the original hanging in a museum; I get to see my copy every day. Copies also do not require copyright law in order to exist, as is evidenced by the copies of creative works which are known to exist, dating all the way back to cave paintings. An example of a copy would be a compact disc, cassette tape, or flash drive containing an mp3, as distinct from the musical composition, lyrics, and audio recording fixed therein.
And third are copyrights. A copyright is an intangible and artificial legal right which may or may not exist as seen fit by a government, which grants them on behalf of its people (or for other purposes, if the government is corrupt and illegitimate). A copyright pertains to a creative work, but it is not a creative work. It pertains to copies, but it is not a copy. Copyrights did not exist until fairly recently, as mentioned above, and may cease to exist in the future, if they’re not seen to be worthwhile. Some creative works may have a copyright which pertains to them and to the copies of that work, but others do not.
Some examples of how these things are all different, consider: If you own a copy of a book, you’ve got access to the creative work therein, but that doesn’t give you the copyright. If you are the copyright holder, you can print up more copies of the book, but you are not entitled to go to people who already own copies and take theirs; in some cases, you may hold the copyright but not even have access to a copy and thus lack the ability to make more even though you’ve got a right to make more. And if you remember the work but there are no copies in existence, you’d better make a new copy before you forget, lest it be lost forever; the copyright holder might object, but the world would literally be better off if you ignored them.
So let’s examine these three things. Property is that which can be enjoyed by the owner, shared with others, reclaimed from others, and disposed of as the owner sees fit.
A creative work is not property because while it can be enjoyed and shared, it cannot be reclaimed if it has been shared (if you’ve told me your story, I can remember it whether you like it or not), and cannot be disposed of (if you’ve sold your story, you can remember it whether the person to whom you’ve sold it likes it or not).
A copy is property, on the other hand. A paperback book can be enjoyed, can be lent to others, can be taken back from those to whom it has been lent, and can be sold, or abandoned, or destroyed, as the owner sees fit. No arguments there.
A copyright may be property; while it is intangible, it can be used by the copyright holder, it can shared or lent (via licensing) with others, it can be reclaimed (if the terms of the license or the applicable law permit it), and it can be disposed of (assigned or destroyed by placing the work in the public domain). There is an argument that copyrights are more of a quasi-property right, however, because it is an incentive granted by the government and as such is regulable in order to ensure that it fulfills its purposes. (And all the exceptions and careful tailoring throughout all the statutes we’ve ever had on the subject show that it’s more of a privilege that the government tinkers with than a static right)
So your “HUH?” certainly highlights your typical cluelessness, but Mike’s statement was in no way novel or even slightly unusual.
And to cover your broad stroke: using someone else’s specific work is at best not the same as either “censorship” or “free speech”.
I’ve just directly quoted you. And you were directly quoting Mike. And in both cases, it is exactly free speech. And if the government attempted to stop the use of direct quotations of copyrighted works as used to bolster or undermine arguments in online debate, that would absolutely be censorship.
Copyright is directly opposed to free speech, since free speech encompasses the verbatim repetition of the speech of other people. It might be tolerable or even beneficial to have copyright, but it is no friend to free speech, and this should always be kept in mind. Copyright is like riding a tiger to travel from hither to yon; it might work, but you’d better remember how dangerous it is.
If you’re against copyright, quit putting your name on posts! You don’t own the idea!
Lastly, congratulations: That is the hands-down stupidest thing I’ve seen all day.
Re: Re: All those examples you list, are not really "creators"...
Comments such as this one keep me coming back here.
Kudos and an ?insightful? vote go to you.
Re: Re: All those examples you list, are not really "creators"...
Will…will you marry me?
Re: Re: All those examples you list, are not really "creators"...
Well said. Too bad the trolls on here are unlikely to read it, and they appear to be incapable of understanding it even if they did.
Fair use creep is hilarious. Makes me think fresh air creep, rainforest creep or maybe even dodo bird creep.
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Copyright scope creep.
First off while the actual copyright itself might be a form of property in that it can be bought and sold, the underlying content is not.
You lost me right there. Copyright is a “right” not property. You cannot sell your rights. If you could, I could sell someone in China my free speech rights, but I can’t do that. Copyright is technically about control for the creators. Controlling who can mass produce the work for market, aka who can profit. It’s nothing more. When you start flipping back and forth between defining it as a right and defining it as property, you lose the true meaning. Copy rights should be something the creators can license one batch at a time, not something they outright sell. In this view, selling of a copy right is unconstitutional.
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You mean you think copyright should be a right. It deffinately isn’t one currently. The actual copyrights are treated like property, they technically aren’t property, it’s a monopoly priviledge certain people get from the government, but it’s transferable, you can definately sell your copyright on something, give it away or whatever.
It could do less damage if it wasn’t transferable, but it’s hardly the only problem with it.. The biggest problem is it makes people think they should be allowed to control other people.
Even if you want to think of it like property, the problem is with normal property rights, the amount of control you have over people is linear. With copyright the amount of control over people’s actions increases exponentially, for each person who gets a copyright, everyone on earth is restricted more and more in what they can do. Then as they change the law to be more restrictive, it applies retroactively to all the previous copyrights and pushes us all into a little box in the corner and tells us it’s freedom.
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Thanks for the clarification on that point.
And don't forget
That copyright was born as a way for the king to censor things he didn’t like
sounds ridiculous i know but has anyone actually gone to one of these one-sided, Congressmen and industry bribing events and taken a copy of the Constitution in with them, then read it out? perhaps hearing the exact words in all their glory would make these ass hats stop and think, if only for a second that the main reason for copyright really is for the public, and to promote the progress of knowledge and the arts, not to make a few people mega rich while screwing the public over at every opportunity!
Copyright holders are champions of the First Amendment, have every incentive to see their work disseminated as widely as possible, and have no reason to censor anything.
A little thought experiment here. Imagine you are in a debate supporting the idea of free speech in general, and you are on the proposition side of the house that believes “freedom of speech necessarily entails the right to offend.”
Your opponents consist of those who traditionally say that hate speech should be made illegal, as well as, say, speech that is offensive towards religious sensibilities.
After you make your case, hopefully revolving around the idea that the knowledge of what is false is just as important as the knowledge of what is true, your opponents make the following straw man towards you:
“The proposition seems to claim that there are no limits to free speech,” (the straw man here is that you never said there should be no limits to speech, even although you did say that there should be no limit to opinions, which is quite different. This typical, predictable straw man continues, and examples of speech that ought to be restricted are mentioned) “voice activated guns, libellous claims or slander, incitement to violence,” (and then that old clich? which, if you trace back to its origins, was a blatant attempt to stop the real fire fighters from shouting fire when there really was a fire in a very crowded, war-hungry theatre) “shouting fire in a crowded theatre, showing pornography to children, yelling in somebody’s ear to the point where they become deaf, and…”
And now, the punch line. Can anyone guess another limit the opposition might mention? Or maybe the better question is can anyone NOT guess it?
“…copyright infringement…”
I encounter this all the time when I get into a general free speech debate. They put their own words into my mouth and attack them instead. Copyright has nothing to do with the debate about expression of opinions, yet they present the issue as if it did.
Now, why would they point to copyright as part of this strawman? Because it is NOT actually part of the straw man, and is an issue which actually brings the other side back on topic and AWAY from the strawman again.
Copyright IS a limit to opinions, and not speech. They are correct. But I propose that limit should also not exist. To make a copy, authorised or not, derivative or not, is to copy the opinion of others and express either that exact same or derived opinion yourself. Therefore, stopping this process stops the expression of certain opinions. Try as you may, you cannot release a new book about Harry Potter, for example, and give different opinions about the characters through your story telling abilities, even although it is the only way this particular opinion can or will ever exist. Making your own characters to work around the hurdle, even as portrayals or references, will never let you deliver the same emotional impact to your audience because they are being restricted intimately with the copyright-imprisoned characters. And no substitute will ever do. It “wouldn’t be the same” without them.
So bearing this in mind, the opposition of the free speech debate scenario here are actually providing a very direct challenge to the idea that copyright holders are “champions” of free speech as implied by this frivilous quotation at the beginning.
Either copyright is an enabler of opinions, or it is a disabler. It cannot be both. And considering the only correctly identified “limit” that the opposition had insight to in the free speech debate, I am strongly inclined to choose the latter.
Copyright maximalists and free-speech limit imposers cannot both be right.
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I am sorry if I have caused a bit of confusion here with my rhetoric. I really should have got rid of that paragraph underneath ” “…copyright infringement…” “.
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Someone first-word this, please.
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Well, I’ve got to disagree with you slightly. Plenty of people have put up fanfics of Harry Potter on fanfiction.net, and many of them are far better written than the J K Rowling works. They’re available for all the world to see, although I will agree that’s a legal grey area: even though the fanfic authors don’t make a cent from their works, all Rowling has to do is call her lawyers and those works will be taken down.
are you sure this is the content creators session it sounds like the legacy monopolists session.
No censorship, except when Mopsik wants it
The idea that copyright holders “have no reason to censor anything” is particularly laughable in this case.
Because in his written testimony from this very hearing, Eugene Mopsik talks explicitly about using copyright as a tool of censorship:
It’s remarkable, because a) he’s wrong (there is redress in e.g. libel/slander laws), and b) copyright law was never, ever intended to be used like this. As a matter of fact, uses like this likely fall under fair use.
Most importantly, he is unequivocably advocating a restriction on expressive speech because the ideas “were diametrically opposed to the beliefs and intentions” of the artists. In First Amendment parlance, this is called a content-based speech restriction. It is generally considered the worst type of speech restriction. And Mopsik is explicitly saying that copyright should be used to do it.
It makes the claims by Giovanetti (and, to a lesser extent, Aistars) laughably false, to the point where they must know they’re lying.
Kinda already said a lot of what I could about that in this recent post in;
https://www.techdirt.com/articles/20130724/13114123928/wait-i-thought-next-congressional-copyright-hearing-was-supposed-to-be-about-hearing-creators.shtml
The usual wordy post that takes too long to write. Another good rant on the negative cultural effects of eternal copyright-monopoly.
In fact, the courts have pointed out that fair use is a key “safety valve” in preventing copyright from being used for censorship
Fair use is a pinhole in an industrial-sized boiler.
DMCA takedown abuse first-hand
I’ve been involved in a DMCA takedown spat every bit as ridiculous as the one with the women arguing about birthing methods. (I’d like to think by contrast I’m at least reasonable.)
I was on Twitter a few months back and had a two-day interaction with a Hollywood screenwriter who went into hysterics over fairly innocuous comments. When I put screengrabs of the Twitter exchange up on a blog later, she filed a DMCA takedown request claiming that I was a “stalker” who had infringed her copyright.
I was prepared to let it drop, even though on balance I thought I was in the right. But after a month or so, irked, I put it back up last night with updated text. I fully expect it will be taken down again with another phony request.
The views expressed by the EFF representative at these hearings are so off the mark as to call into question his CV to discuss with any degree of accuracy basic principles of law, and especially as it pertains to those such as copyright law.
The stated purpose of all laws, criminal and civil, is to seek achievement of a public benefit. How one goes about implementing achievement of that benefit is the specific law itself, from whatever source derived.
In the context of copyright law a constitutional requirement was imposed that the means selected to pursue the benefit must be exclusive to an author. To dismiss “control” is to dismiss “exclusive”, an approach unsupported by the language of Article 1, Section 8, Clause 8 of the US Constitution as originally enacted.
Now one can wrap themselves up in circles bantering a “chicken/egg” hypothetical, but at the end of the day it is disingenuous to assert that the grant of control is somehow at odds with the above constitutional provision. Otherwise, the requirement for exclusivity is rendered impotent, an outcome that I well understand would be gloriously received here.
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In that case, are you asserting that statutory licenses are unconstitutional, since the underlying rights are granted to authors, but they are not exclusive?
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Yours is a very fair and thoughtful question.
There are many areas of the law where parties (legislative, judiciary, executive, rights holders, etc.) have simply assumed answers without any real examination of that which authorizes statutory provisions in the first instance. This point you raise may very well be one that does deserve some thoughtful consideration. For example, I have read articles in legal publications where it has been argued that compulsory licenses are compensable under the Fifth Amendment. I have also read articles where it has been posited that compulsory licenses create a class of rights that are broader in scope than the rights ordinarily associated with copyright law.
I honestly do not know what the outcome would likely be if the question you pose is ever litigated. All I can say is that legal issues such as this rarely admit to easy, obvious, immutable answers.
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“Solving the problem would be too hard; let’s keep doing the same thing until something goes bust and we’re all enriched by the experience!”
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Yours is a very fair and thoughtful question.
It is also a question that shows that you’re a lot more ignorant of copyright law than you think you are.
Because you are wrong. “Exclusive” does not equate to “control.” The statutory licenses are one example: authors have the exclusive right to collect royalties, but not to control the use of a work if those royalties are paid.
Furthermore, if your assertion were true, then copyright transfers would also be unconstitutional, since the authors lose all control over their works. That idea, of course, is ridiculous.
The Constitution grants rights to Congress, and Article I, Section 8, Clause 8 grants the right to Congress to create copyright laws. This right is limited in four ways:
1. the rights that Congress grants must be for limited times;
2. they must grant some form of exclusive rights to authors;
3. they must cover the works of authors; and
3. they must be for the sole purpose of promoting the progress of science. (Or, in the words of the Supreme Court, they “must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts.”)
It is not about authors “controlling” their works, it is not about any kind of “property,” and it is not about rewarding the “sweat of the brow” of authors.
Congress may exercise this right, or not, as it sees fit. It is the sole purview of Congress to decide the scope of those rights. If Congress decides that those rights include “control,” then they do; if not, then they don’t. The same applies to considering copyrights “property” – Congress could make those rights non-transferable, for example. And since the right to decide the scope of those laws is exclusive to Congress, they can rescind those rights if they choose, “without cause or complaint from anybody” (in the words of Thomas Jefferson).
I’ve quoted this passage before, but I will do so again, because it is awesome:
That quote is particularly apropos here, because it was that same Act that established statutory royalties. For the reasons they did so, here is another quote from that same report:
In other words, they were not acting unconstitutionally when they created statutory royalties. Quite the opposite. They were fulfilling the Constitutional requirement that the rights be beneficial to the general public.
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We have exchanged comments in the past, but never has any begun with an insulting comment, and for you to do so is uncharacteristic.
You have obviously devoted much time to the study of copyright law. I have likewise done the same, though my study and practice likely spans a much longer time than yours. This is not to say I am by far more knowledgeable, but only that as time passes situations constantly arise that give me pause to reflect on what I may have long taken for granted as being the likely outcome of a given situation. The comment to which I quickly responded is one such situation, and a review of published literature reveals that what the judiciary may ultimately hold in an appropriate case is not free from doubt.
Let me proffer a minor example for you to mull over with respect to what you state is the purpose of copyright law, i.e., the law must benefit the general public, which in the ordinary course of events would seem to dictate that copyright should attach as and when a work is publicly disseminated. Of course, we both know that copyright attaches upon fixation of a work in a tangible medium of expression from which is can be perceived for a least a transitory duration. Note that dissemination to the public is not one of the criteria. Thus, you might want to provide more nuance to benefit you assert. As I said, this is but a minor example. Title 17 is chocked with many, many other examples that counsel against declarative statements unburdened by qualifications.
Keep up your studies, but do try to keep in mind that a comment that may not reflect your understanding of the law represents an opportunity to learn/discuss yet another facet of the law.
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“The views expressed by the EFF representative at these hearings are so off the mark as to call into question his CV to discuss with any degree of accuracy basic principles of law, and especially as it pertains to those such as copyright law.”
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We have exchanged comments in the past, but never has any begun with an insulting comment, and for you to do so is uncharacteristic.
The very first sentence in your comment was a dismissive insult. (One directed at a professional copyright litigator, no less.)
So, it is apparently not uncharacteristic for you. I guess you are saying that I should act better than you, and you probably have a point.
Let me proffer a minor example for you to mull over with respect to what you state is the purpose of copyright law, i.e., the law must benefit the general public, which in the ordinary course of events would seem to dictate that copyright should attach as and when a work is publicly disseminated.
I have no idea where you’re getting that. Dissemination is certainly a goal, but so is incentivizing the production of artworks in the first place. It is an argument that copyright maximalists bring up all the time, and if they actually had any evidence to back up their argument, they would have a point.
Of course, we both know that copyright attaches upon fixation of a work in a tangible medium of expression from which is can be perceived for a least a transitory duration.
Some of that has to do with defining a “copy” for the purposes of the Copyright Act. But you seem to be talking about the “right of first publication,” as opposed to post-publication monopoly rights.
That distinction may be interesting, but it is completely irrelevant to this discussion – a red herring. Because all of the people who testified before Congress were talking about “control” of a work after it has already been published.
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Mr. Parker, of whose CV I speak, in not a lawyer, so to refer to him as a litigator is far off the mark.
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Mr. Parker, of whose CV I speak, in not a lawyer, so to refer to him as a litigator is far off the mark.
Oops, you’re right, he’s not. His bio from the EFF page:
So, an activist and IP specialist, but not a lawyer. My bad. Quite a few of the people involved with the EFF are in fact lawyers, and I got confused.
I still haven’t seen your CV, of course, so I have no reason to think that you have any right to outright insult him.
Incidentally, he did not express his views “at these hearings,” as you claimed. Nobody from the EFF – nor any other public interest group – was invited to express their views at any one of these hearings.
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I think there would be one of two solutions to the problem, depending on the available bribes.
Congress could do a marijuana and establish an impossible-to-pay tax (or just a 100% tax rate on income from certain types of copyright licence), then pay the fair value for the appropriation (the rights holder could in principe sell on the right to copy in those situations, if anyone were daft enough to buy it).
Alternatively, they could just say “well, that’s good, more money for the MAFIAA”.
"Copyrights" and Copyrights
Agree that it can be used to violate free speech, in fact, it’s been used to do that like 99% of the time. From taking down videos, taking down Fan Fiction, using Cease & Desist letters, and other threats. This is not how “Copyright” is supposed to act.
It’s about something else I think, pretty sure it has nothing to do about control, and censorship like others say I think.
I found a certain somebody's email address...
and posted the following: Dear Mr. Giovanetti,
I read with some dismay your remarks at the Congress hearing about copyright reform, during which you claimed that copyright is about control. Nothing could be further from the truth, and this is made plain by Article One, Section Eight, Clause Eight of the US Constitution, which states, “[Text redacted – potential copyright infringement]” In case you don’t believe me, you can read the same yourself at [Link redacted – potential copyright infringement] I guess it’s a good job copyright doesn’t last forever and a day, or I wouldn’t have been able to quote the relevant part of what wouldn’t have been a Public Domain document to make my point.
Yours sincerely, Sheogorath.
Methinks it will make my point.
“At” was not intended to signify “testified”, but only that the author was apparently in attendance.
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“At” was not intended to signify “testified”, but only that the author was apparently in attendance.
Whether or not Giovanetti actually spoke or not is neither here nor there. The guy gave an ‘overview’, which would have been read out, so he still made remarks, even if they were indirect.