Copyright Is Broken: COVID-19 Pandemic Revealing Just How Messed Up Our Permission-Based Culture Is

from the let's-fix-it dept

Like large parts of the world right now, I’m stuck at home these days, and figuring out how to work and be a distance learning proctor to children. A week and a half into this forced educational experiment, my kid’s kindergarten teacher decided to post a (private) video of her reading a children’s book to the students. Why did it take so long before reading time arrived to distance learning? Copyright, of course. She needed to wait for permission from Random House, apparently, and that also meant that in posting the video to the distance learning platform the school is using, she noted in both text, and prior to reading, “with permission from Random House.”

Now let’s think about how silly this is. No one would ever expect that if you walked into a kindergarten classroom that a teacher would first need to (a) get permission to read aloud a book and (b) state before reading that he or she had “permission” from the copyright holder. This is permission culture gone mad. But it’s the way things are, especially since copyright holders have spent the past two decades blaming platforms for hosting any “infringing” material. I doubt that the teacher in this case was directly concerned about her own liability (though, she might be), but it very likely had to do with the distance learning platform the school is using requiring her “properly license” anything uploaded. Indeed, when I tweeted about this, a copyright lawyer insisted that this was “better for everyone” to make sure that no one had liability. I question how it’s better for teachers, students, or culture in general, however.

This is playing out all over the place, thanks to our forced isolation. LeVar Burton tweeted about the trouble he’s had doing a live-streamed version of LeVar Burton Reads, because copyright is getting in the way. He’s been searching through “short stories in the public domain” because the actual licensing issues are too fucked up:

While it is a bit heartening to see a lot of authors responding to him and offering up “free” licenses to their own books for him to read, just the fact that we’re in this situation in the first place should demonstrate the fundamental broken nature of copyright law. A few people pointed me to certain “solutions” to this — including a special Pandemic License and a more official Education Continuity License — both of which have been designed to specifically deal with this situation. But both of those are still based on the fundamentally flawed idea that we should need licenses and permission to read aloud.

That’s messed up.

This is what fair use is supposed to protect — and I’m happy to see a bunch of top copyright scholars just release this excellent paper on “Reading Aloud” and fair use. The paper is exactly right that things done without extra licenses and permission in the classroom should be easily replicated online:

  1. When teachers translate classroom practices of reading aloud to online student facing tools, such as distribution through a school website, learning management system, or live webcast, fair use enables most of the same practices online that take place in person.
  2. In a temporary emergency involving extensive school closures, teachers and schools should feel even greater confidence in reading aloud through digital platforms, including platforms without access controls, if necessary to reliably reach students.
  3. Fair use also provides strong legal authority for practices focused on ensuring equity of access for students with disabilities, English language learners, and other vulnerable student populations. Consistent with the principles of universal design, the ability to engage with materials read aloud should be enabled as widely as possible.

The paper is absolutely right. But it’s meaningless if no one buys into it and no one has the confidence to stand up for their fair use rights — and that includes the platform middlemen who are so freaked out about liability suits that they won’t even bother with fair use.

When we get through this pandemic, we should remember this mess, and fix a bunch of problems with copyright law to make sure we don’t need to do this again. We should make it 100% clear that classroom uses are fair use. This is currently in the law — but frequently ignored. We should similarly take away monetary damages for such activities. The fear of a big expensive lawsuit is part of what’s so damaging and chilling here. At best you should be able to get an injunction, requiring someone to stop the behavior. Finally, it should be explicitly stated that merely doing what you do in the classroom online cannot ever be infringing, and that anyone who files suit over such things should have to pay the legal fees of those educators and educational platforms they have sued.

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Comments on “Copyright Is Broken: COVID-19 Pandemic Revealing Just How Messed Up Our Permission-Based Culture Is”

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Christenson says:

Burn it all down and start over!

With Horrible, Messed up example #42590 as to why copyright scholars are ready for a complete re-write of copyright law in the face of the unprecedented copy machine formed by the internet.

Lavar, if you read this, time to write up this story for all the children who should not have to know about the monster copyright has become.

Samuel Abram (profile) says:

Re: Burn it all down and start over!

I agree. Since 1978 (or rather, since the Berne Convention), copyright has been an opt-out affair more than an opt-in affair, and the result of it is that everything is copyrighted. When everything is copyrighted, everything requires permission and permission is default. If we had the same opt-in copyright laws that we had before 1976, this likely wouldn’t have been an issue, but we just had to join the Berne Convention, and in 1976, it made sense: the internet was ARPANet, it didn’t really exist outside of universities; copyright was just for business use. However, when the internet became commercialized in 1994, copyright law not only did not keep up, it went in the opposite direction at the behest of the RIAA (due to Napster) and the MPAA (due to bit-torrents). While both have for the most part solved their business model problems (though the MPA(A) is seeing a resurgence of piracy thanks to the fracturing of the video streaming market), copyright law is in shambles and only promises to become more oppressive due to a congress, executive branch, and judiciary who will only listen to copyright maximalists and nobody else (with some exceptions like Ron Wyden).

My point is this: this permission culture has led to a gutting of safety valves such as fair use, and it especially doesn’t exist for those who cannot afford legal representation.

This comment has been deemed insightful by the community.
Anonymous Coward says:

Re: Re: Burn it all down and start over!

copyright has been an opt-out affair more than an opt-in affair

Here’s an idea: if you want to deprive the public of access to certain property, you should have to pay a recurring tax based on its value. We could call it "property tax".

This comment has been deemed insightful by the community.
Anonymous Coward says:

Re: Re: Re:3 Burn it all down and start over!

One idea often proposed is the value escalates with renewal. Disney can keep something as old as Steamboat Willy out of the public domain but only if they are willing to pay say 500 billion every year and the registration fee increasing exponentially yearly.

Reminds me of the one concept of a "buyout bid" for real estate where any appraised value for property tax allows for it to be bought out at say 1.5 the nominal value but that same value is used for tax purposes. Lowball it and risk getting it bought out for a pittance. Insist upon a high buy out value for it and pay a premium.

Scary Devil Monastery (profile) says:

Re: Burn it all down and start over!

"…time to write up this story for all the children who should not have to know about the monster copyright has become."

As I keep pointing out, copyright never became a monster. It was successfully designed to be one from the start.

We’ve seen it before. Multiple times.

This comment has been flagged by the community. Click here to show it.

This comment has been deemed insightful by the community.
Carlie Coats (profile) says:

Copyright-abuse penalties

Generally, suit for improper claim of copyright should automatically subject the plaintiff to penalties at least as severe as the penalties for the corresponding infringement. After all, the fraudulent claim of copyright is an attempt to steal from the public.

There are a number of such types of fraudulent claims, of which manifestly fair use (as in this case) is one. Another is claim of copyright over a work that is in the public domain. (My copy of Vivaldi’s Requiem claims "Copyright Walton Publishing… all rights reserved". Vivaldi died 279 years ago.) A third type of fraudulent claim is claim for a work owned by someone other than the plaintiff. There are probably more…

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Samuel Abram (profile) says:

Re: Copyright-abuse penalties

Two things:

  1. What you’re referring to is copyfraud, which is when a work which is fair use or public domain has a copyright claim claiming prohibited uses which are not, and
  2. unless you have the sheet music of Vivaldi’s Requiem, the copyright is in the recording and not the music itself, which is public domain.
Carlie Coats (profile) says:

Re: Re: Copyright-abuse penalties

"Copyfraud" is a bit of a neologism.

I do have the sheet music for the Vivaldi — what do you think "my copy…Copyright Walton Publishing…" implies?
BTW, this kind of fraud is near-universal among publishers of sheet music; Kalmus and Oxford University Press are the only two publishers I know of that don’t do this kind of thing. The Vivaldi just happened to be the earliest work for which I have the sheet music at y fingertips.

Anonymous Coward says:

But it isn’t just reading, is it? It’s everything, the whole shebang! And why! Because, as usual, certain members of politics, both sides of the aisle, think that once voted into position, their loyalty to the people put them there stops! That now in 0lace, tgeir only acts are those that increase their bank balances, that help those increasing their bank balances in return of using their political weight, and, of course, by screwing as much as possible, as hard as possible, for as long as possible the key people tgry originally needed. Think about ehat copyright was designed to do and how long for, then think about what it is today and who got it to this point, how they got it to this point, why they got it to this point and who benfits from it! There needs drastic reductions in length of copyright terms but while politicians can be bribed so easily to do the biding of the entertainment industries, in particular and not investigated, let alone held accountable, change wont happen!

Anonymous Anonymous Coward (profile) says:

Re: I am not holding my breath

And highly unlikely. It is more likely that those whose future employment depends upon ‘donations’ from big business will determine that strong IP will be necessary to recharge the economy. The fact that moving IP from those big conglomerates to individuals and independents might have a better, broader impact on the economy will be lost on them as the dollars fill their campaign troughs.

This comment has been deemed insightful by the community.
Michael says:

Constitutional originalism

I’m sure the "Constitutional originalists" that make up the majority of the Senate and the Supreme Court will get right on fixing the IP mess by putting the copyright term back to 14 years, with laws that limit it solely to "promot[ing] the progress of science and useful arts."

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reliablesprout (profile) says:

Copyright-abuse penalties

Generally, suit for an improper claim of copyright should automatically subject the plaintiff to penalties at least as severe as the penalties for the corresponding infringement. After all, the fraudulent claim of copyright is an attempt to steal from the public.
<a href="“>Reliable Sprout</a>

Anonymous Coward says:

Liability is Broken Also - More Immunity for vaccines

Federal Register / Vol. 85, No. 52 / Tuesday, March 17, 2020 / Notices


Office of the Secretary
Declaration Under the Public
Readiness and Emergency
Preparedness Act for Medical
Countermeasures Against COVID–19

ACTION: Notice of declaration.

SUMMARY: The Secretary is issuing this
Declaration pursuant to section 319F–3
of the Public Health Service Act to
provide liability immunity for activities
related to medical countermeasures
against COVID–19.

DATES: The Declaration was effective as
of February 4, 2020.

Thus, it is the Secretary’s
interpretation that, when a Declaration
is in effect, the Act precludes, for
example, liability claims alleging
negligence by a manufacturer in creating
a vaccine, or negligence by a health care
provider in prescribing the wrong dose,
absent willful misconduct.

Covered Countermeasures are any
antiviral, any other drug, any biologic,
any diagnostic, any other device, or any
vaccine, used to treat, diagnose, cure,
prevent, or mitigate COVID–19, or the
transmission of SARS-CoV–2 or a virus
mutating therefrom, or any device used
in the administration of any such
product, and all components and
constituent materials of any such

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