Oh boy. Ever since people started ridiculously blaming fake news on Facebook for the election outcome, we've pointed out that these calls will be used to justify censorship of opposing views -- and that's a very bad thing. We've already seen authoritarian countries with long histories of punishing and silencing dissent jump on the "fake news is a problem!" bandwagon to justify heavy handed censorship. Both China and Iran have pointed to "fake news" as a reason for new internet censorship plans.
Angela Merkel is as good as her word: the German chancellor is backing a new law that would ban fake news stories distributed via social media, according to German newspapers. The move comes amid growing concern that fake news on social media influenced the outcome of the U.S. presidential election, and could play a similar role in Germany’s own upcoming elections.
Politicians from Merkel’s conservative Christian Democratic Union are proposing a law that would require social media sites to immediately remove fake news stories and make the publishing of such articles a criminal offense. The CDU currently governs in coalition with the leftwing Social Democratic Party as well as its own sister party, the Bavarian Christian Social Union, giving the government an easy majority and making it very likely that the law will pass, perhaps with some revisions after parliamentary debate.
This is an out and out pro-censorship law which will be abused. And the really scary thing is that with all this hype about "fake news," it appears the general public in traditionally open democracies may cheer on this plan for government-mandated censorship. A new Pew Center study suggests the hype around fake news has tons of Americans believing it's a much bigger problem than it really is. But the really scary part is that, according to the survey, many believe that the government should be responsible for stopping fake news. In fact, more people would put a large part of the burden on the government than on internet companies or... (wait for it...) the public themselves:
If you can't see that, 45% of respondents say that "a great deal of responsibility" for "preventing completely made up news from gaining attention" should fall on "government, politicians and elected officials." 42% say the same thing for platforms and 43% apply that standard to the public themselves. Obviously, these numbers are pretty close, suggesting they could be seen as about equal -- but that's still ridiculous. The government should not be in the business of deciding what is "fake news." It would fundamentally upset one of the basic concepts of freedom of expression.
Again, none of this is to say that timelines flooded with blatantly hoax stories (again, the definition of "fake news" seems to morph with what one's beliefs are...) is a good thing. And it seems that approaches like the one that Facebook is now taking seem perfectly reasonable (providing more information, rather than blocking, and combining user feedback with expert fact checking to vet stories that deserve additional informational flags). But the idea that the government should take responsibility leads to ridiculous ideas like criminalizing "fake" news stories, which will only justify crackdowns like the ones in China and Iran even more.
As the Washington Post's always astute Margaret Sullivan notes, politicians are the last people who should be judging what is, and what is not, fake news -- since it allows them to tilt the scales on issues directly impacting their own jobs:
Government involvement is a seriously bad idea. It could put the question of what constitutes real news and what constitutes fake news in the hands of those who may be most affected by it.
Indeed, this seems to directly be the case with the plan to criminalize fake news in Germany. As the quote above noted, the reason it's even up for debate there is because of "concern" that fake news could impact the upcoming election. Totally false news that people fall for can certainly be annoying -- but (again) we're mostly talking about confirmation bias. People believing stories because it fits their existing worldview. It's not like they'd change their position magically if they didn't see the fake news stories. And, even if they did, that's no excuse for criminalizing fake news -- which is only going to create a massive headache, and put freedom of the press and freedom of expression at serious risk.
Though, it will be amusing when German officials try to charge The Onion with criminal offenses...
We've been pointing out that in the rush to claim that Facebook is a media company that must take responsibility for the content that is posted and shared on the site, there's really an implicit call for blocking content that is somehow deemed "bad." People keep acting like Facebook, rather than its users, has the responsibility to edit what is on the site. That's dangerous -- and for yet another example of how, we've now got a German official saying that Facebook has to be classified as a media property and be held criminally liable if it doesn't magically delete "hate speech."
This is really, really dangerous. Yes, we know that Germany has much stricter hate speech laws, but if you have to have them, at least hold the proper party responsible: those doing the speaking (and, yes, as we've pointed out repeatedly, hate speech laws are almost always abused by governments to silence and punish people they don't like). Facebook, to some extent, has brought this on itself. In the past, it's made promises, to Germany in particular about how it will help curb "hate speech" on the site. And, eventually, the government is going to get upset and say "you're not doing enough." Earlier this year, Facebook (along with Google, Microsoft, and Twitter) tried to appease European bureaucrats by signing an agreement to respond to complaints of hate speech within 24 hours. But now officials want more. Because once you give governments the power to censor speech, they're always going to want more.
None of this is to say that Facebook needs to leave any particular speech up on its site. It's a private company and gets to make those decisions. But when governments get involved, things get scary quickly -- especially as the EU does still have safe harbors in the Ecommerce Directive that are supposed to limit liability for platforms. The statement made here, by German Justice Minister Heiko Maas, is a deliberate attempt to get around that Directive by declaring Facebook no different than a newspaper, which is responsible for what it prints. That's ridiculous on any number of levels, starting with the fact that newspapers literally pick everything that they print, whereas a platform like Facebook doesn't. It's all on the users.
The really ridiculous thing here is that statements like this make things worse. It makes it clear to these platform companies that no matter how much they try to appease government officials on things like this, they're always going to push for more and more censorship power.
Almost four years after we noted that the fight between German collection society GEMA and YouTube had gone on way too long, it looks like it's finally been settled. If you don't know, way back when, GEMA, which is effectively a mandatory copyright royalty collector in Germany, demanded insane rates for any music streaming on YouTube. Apparently, it initially argued that a stream on YouTube was no different than a purchase on iTunes, and thus it should be paid the same rate. In 2009, it asked for 17 cents per video view (which was a decrease from the 37.5 cents per stream it had asked for earlier). 17 cents. Anyone who knows anything about how the internet works and how advertising works knows that's insane. YouTube was paying out a decent chunk of its advertising revenue to other collection societies at a fraction of a penny per view, which is inline with the potential ad revenue.
This created a huge mess in Germany, where tons of YouTube views were blocked -- even when the creators have properly licensed the music. GEMA just threw up a big "no." This is why, when I was in Berlin a few years ago, talking with musicians, one of them showed me how his band had an "official" website that GEMA knew about and an unofficial secret "real" website, where his band could actually distribute its own music, without GEMA interfering. Think about that for a second. GEMA was regularly blocking musicians from doing what they wanted with music so it could try to shake down YouTube/Google for ransom.
And it went on until now. Six or seven years ago, Germany was the only major country where the local collection society could not come to an agreement with YouTube and it took until now to finally sort this out. There's no word on the final amount, though I imagine it will come out at some point. GEMA is crowing about the fact that this will cover payments back to 2009, though, since so many videos on YouTube in Germany were blocked from that point onward, think of all the views and all the money that GEMA deliberately blocked users from ever receiving. Either way, the common practice of seeing that a video is "not available" in Germany is now mostly over. There are apparently some videos, for music not represented by GEMA that will remain blocked, but this is a big step forward.
German website Netzpolitik might be headed for another treason investigation. The German government went after the site once for publishing leaked documents detailing mass surveillance operations and it may do so again after its latest publication.
The report’s executive summary describes serious violations of the law [emphasis added]:
The BND has illegally and massively restricted my supervision authority on several occasions. A comprehensive and efficient control was not possible.
Contrary to its explicit obligation by law, the BND has created [seven] databases without an establishing order and used them (for many years), thus disregarding fundamental principles of legality. Under current law, the data saved in these databases have to be deleted immediately. They may not be used further.
Although this inspection was only focused on the BND station in Bad Aibling, I found serious legal violations, which are of outstanding importance and concern core areas of the BND’s mission.
The BND has collected personal data without a legal basis and has processed it systematically. The BND’s claim that this information is essential, cannot substitute a missing legal basis. Limitations of fundamental rights always need to be based on law.
German (constitutional) law […] also applies to personal data which the BND has collected abroad and processes domestically. These constitutional restrictions have to be strictly abided by the BND.
Some of what was illegally gathered and stored was obtained via the NSA's XKeyscore program, which harvests email, online chats, and browser histories in bulk. The report notes that the indiscriminate collection of data and communications was subject to very little in the way of minimization, resulting in plenty of non-targets being swept up in the dragnet and their data/communications dumped into the BND's databases.
Because of its […] systematic conception, XKEYSCORE – indisputedly – collects […] also a great number of personal data of irreproachable persons. The BND is not capable of substantiating their number […]. In one case I checked, the ratio was 1:15, i.e. for one target person, personal data of fifteen irreproachable persons were collected and stored, which were – indisputably – not required by the BND to fulfill its tasks […].
The collection and processing of these data are profound violations of [the] BND law.
These infringements of constitutional rights are conducted without any legal basis and thus harm the constitutional right of informational self-determination of irreproachable persons. Furthermore, these infringements of constitutional rights result from the inappropriately – and thus disproportionately – large scale of these measures, i.e. the inappropriately large number of irreproachable persons surveilled […].
Not only did the BND harvest in bulk, but it also passed on this 1:15 collection unminimized to the NSA.
The amazing part of this leaked report is that it only details the violations of a single BND collection outpost. There are seven more in Germany yet to be examined. On top of that, the oversight body couldn't even get a clear picture of the illegal activities occurring at this single station. There were just too many of them.
This "storage and processing of personal metadata in VERAS is subject to the BND law and subsidiarily to the Federal Data Protection Act". But in many aspects the Data Protection Commissioner was hindered from examining the data properly. When requesting only the retained data of individuals protected by fundamental rights, the database had too many be displayed. Thus, she gradually reduced the time frame: "90 days, 30 days, 1 day". Still too many hits:
In none of the these cases, the system was able to display the hits because the number exceeded the limit of 15,002 – not even in the case of the least possible time restriction of one day.
This means the Federal Data Protection Commissioner was not able to examine the contents of the massive meta data retention. Additionally, she was not able to check how the BND used personal data, because: There are no logs.
The BND is neither aware of the kind or the scope of logs, nor was it technologically possible to access the log data of VERAS 6. Further, there existed no technical capability to analyze the logs.
Unfortunately, the violations found by the Data Protection Commissioner have since been codified into law. The BND is harvesting even more than it was when it was inspected, having just finished a 300 million euro revamp of its surveillance tech. Much like here in the US pre-Snowden, the oversight in Germany is relatively toothless. Whatever exists will be actively thwarted by intelligence agencies (the report states that BND deleted logs the Commissioner asked to examine) or by other legislators who are always willing to sacrifice the public's rights for national security.
Following in the footsteps of Facebook, governments slanting towards the authoritarian side (that's you, Russia!) have deployed facial recognition software to help ensure its citizens are stripped of their anonymity.
Other governments not so seemingly bent on obedience to the state have done the same. UK law enforcement has quietly built a huge facial recognition database and Brazil experimented with police equipment that would turn officers into Robocops -- providing real-time facial recognition to cops via some sort of Google Glass-ish headgear. If what we know about facial recognition software's accuracy rates holds true, the goggles will, indeed, do nothing.
Germany has maintained an arm's-length relationship with its troublesome past. The Stasi and Gestapo's lingering specters still haunt current legislators, occasionally prompting them to curb domestic surveillance efforts. Concerns for the privacy of its citizens has also sometimes resulted in the government making angry noises at tech companies it feels are overstepping their boundaries.
Speaking to the Bild am Sonntag newspaper, [Interior Minister] Thomas de Maiziere said internet software was able to determine whether people shown in photographs were celebrities or politicians.
"I would like to use this kind of facial recognition technology in video cameras at airports and train stations. Then, if a suspect appears and is recognised, it will show up in the system," he told the paper.
This move towards a more Stasi-esque surveillance system is, of course, prompted by recent terrorist attacks in Germany. Nothing propels bad legislation and lowers the price on domestic surveillance real estate more efficiently than tragedies -- especially those "claimed" after-the-fact by members of the Islamic State.
For those more concerned with lonely baggage, the government is all over that, too.
He said a similar system was already being tested for unattended luggage, which the camera reports after a certain number of minutes.
The lesson here is never forget where you set down your duffel bag -- unless you like watching it being detonated by security teams from a safe distance.
As for the dystopian future awaiting Germans as their government does all it can to help the terrorists win, the Interior Minister offers this shrug of a statement:
"We will have to get used to increased security measures, such as longer queues, stricter checks or personal entry cards. This is tedious, uncomfortable and costs time but I don't think it's a limitation of personal freedom," he said.
Longer lines and more "papers, please" -- just the sort of thing that will push memories of Nazi Germany and the Berlin Wall into the background.
Last month, Techdirt noted that the Turkish President, Recep Tayyip Erdoğan, had broadened his assault on free speech in Germany with even more ridiculous actions. As well as demanding that the German comedian Jan Böhmermann should be punished for an admittedly rather coarse satirical poem, Erdoğan went on to seek an injunction against the German media boss Mathias Döpfner for daring to say he laughed out loud when he read the ditty in question. Fortunately, not just one but two German courts have now (politely) told the Turkish president what he can do with his request, as EurActiv reports:
After failing to get an injunction from a lower court last month, Erdoğan also lost an appeal before the higher regional court in the western German city of Cologne.
The judges said they considered Doepfner’s letter of support "a permissible expression of opinion as protected under Article 5" of Germany’s constitution, the court said in a statement.
Unfortunately, that's not the end of the affair. First, as EurActiv notes:
Erdoğan could still seek recourse before Germany’s top tribunal, the Federal Constitutional Court.
Knowing Erdoğan, that remains a distinct possibility. Secondly, and more seriously, the main case involving Böhmermann has not been heard yet. And there it's not a matter of an injunction, but of time behind bars.
The court ruled against the Wikimedia Foundation and in favour of the Reiss Engelhorn Museum. The German court dismissed the case against Wikimedia Deutschland on the grounds that it was not legally responsible for the files in question, which were held by Wikimedia Commons in the US, which in turn are managed by the Wikimedia Foundation.
This is not a particularly new issue -- it's come up many times in the past. In the US, thankfully, we have a nice precedent in Bridgeman v. Corel that states clearly that exact photographic copies of public domain works are not protected by copyright, because they lack the originality necessary for a copyright. Of course, that hasn't stopped some US Museums from looking to route around that ruling. Over in Europe, where there is no Bridgeman-like ruling, we tend to see a lot more of these kinds of attempts to relock down the public domain by museums. There have been similar attempts in the UK and in France, though as far as I can tell, neither case went to court.
Wikimedia says that it will appeal the ruling, which is the right move, but really an even larger question is why museums, which should want to more widely share such artwork with the world, are being so overprotective of these works. It's not as if someone seeing a digitized image of the Mona Lisa makes anyone less interested in seeing it in a museum.
We've written plenty of times about ridiculous European plans to create a so-called "snippet tax" which is more officially referred to as "ancillary rights" (and is really just about creating a tax on Google). The basic concept is that some old school newspapers are so lazy and have so failed to adapt to the internet -- and so want to blame Google for their own failures -- that they want to tax any aggregator (e.g., Google) that links to their works with a snippet, that doesn't pay for the privilege of sending those publishers traffic. As you may remember, Germany has been pushing for such a thing for many, many years, and Austria has been exploring it as well. But perhaps the most attention grabbing move was the one in Spain, which not only included a snippet tax, but made it mandatory. That is, even if you wanted Google News to link to you for free, you couldn't get that. In response, Google took the nuclear option and shut down Google News in Spain. A study showed that this law has actually done much to harm Spanish publishers, but the EU pushes on, ridiculously.
As discussed a year ago, some in the EU Commission are all for creating an EU-wide snippet tax, and as ridiculous and counterproductive as that is, the Commission is about to make a decision on it, and the public consultation on the issue is about to close (it ends tomorrow). Thankfully, many, many different groups have set up nice and easy systems to understand and respond to the consultation -- which you should do. Here are just a few options:
There's also a good detailed discussion of why this snippet tax is the wrong solution from European copyright lawyer Remy Chavannes. Here's just a... um... snippet (that I didn't pay for):
In fact, there is precious little indication that the challenges currently being faced by press publishers are due to the lack of sufficiently broad intellectual property rights. And if insufficient IP rights are not a significant part of the problem, increasing IP rights is unlikely to be a significant part of the solution. At a recent conference in Amsterdam, speakers from publishers, academia, politics, civil society and the internet sector were in near-total agreement that a neighbouring right for publishers would solve nothing at best. It would seem more fruitful to investigate other ways in which the position and prospects of publishers of quality journalism can be increased, e.g. via subsidies, tax facilities, the partial repurposing of public broadcasting funds, or other measures that reflect the significant value to a democratic society of having a vigorous, free and independent press.
Implementation of a neighbouring right would bring significant uncertainty, costs and risks, not just to authors and publishers, but also to the eclectic group of platforms, intermediaries and other service providers that play a role in facilitating the publication, discovery and consumption of press content. Larger, existing broad-based platforms will be incentivised to reduce or remove service features that might trigger the new neighbouring right. New entrants are likely to be discouraged, particularly new entrants who want specifically to serve the market for finding and consuming press content. Depending on the scope of any neighbouring right, moreover, it could also negatively impact providers of social networks as well as providers of access, caching and hosting services. Increasing costs, complexity and uncertainty for such a broad category of service providers threatens the free flow of information and investment in – and availability of – innovative digital services, as well as the commercial prospects for publishers and authors.
Good stuff, and I urge you to read the whole thing -- and to respond to the consultation before the EU Commission destroys the link.
This week, in two different countries, we got two very good rulings concerning copyright on "sampling" of music into other songs. As you may know, the law on sampling, especially in the US, has been a bit of a mess. There was a great documentary on this a few years ago called Copyright Criminals that I highly recommend watching if you can find it. Here's the trailer:
A big part of the problem was a horrible ruling in the 6th Circuit in one of the (many) Bridgeport cases (a company that is alleged to have forged records to get control over heavily sampled works, and then sued lots of artists over their samples). In Bridgeport v. Dimension Films, a confused 6th Circuit appeals court made a bunch of nutty comments in a ruling, including "Get a license or do not sample. We do not see this as stifling creativity in any significant way." That case, which didn't even look at the fair use issue, effectively wiped out another legal defense against accusations of copyright infringement, known as "de minimis use." The court's bizarre ruling contradicted plenty of others in basically saying there's no such thing as de minimis use because each sampled note has value or it wouldn't have been sampled. This tautological reasoning is directly in that awful ruling:
Why is there no de minimis taking...? ... [E]ven when a small part of a sound recording is sampled, the part taken is something of value.(11) No further proof of that is necessary than the fact that the producer of the record or the artist on the record intentionally sampled because it would (1) save costs, or (2) add something to the new recording, or (3) both. For the sound recording copyright holder, it is not the “song” but the sounds that are fixed in the medium of his choice. When those sounds are sampled they are taken directly from that fixed medium. It is a physical taking rather than an intellectual one.
And while this ruling has been troubling copyright and music sampling folks for ages, no one seemed willing to challenge it. But, a few years back, we wrote about VMG Salsoul suing Madonna over her hit song "Vogue," claiming it used a sample from the VMG Salsoul song "Chicago Bus Stop." You can listen to both tracks and I assure you that you will not see any similarities, because they're totally different. In fact, VMG claimed that part of the reason it took 20 years to sue over this was because Madonna "hid" the sample -- which (to us, at least) raised serious questions about how it could be copyright infringement at all. In our article, we noted the mess in the 6th Circuit and the fear of others testing that ruling, but the Madonna case went forward (in the 9th Circuit, rather than the 6th) and Madonna won, and has now won again on appeal, with the court flat out rejecting the Bridgeport ruling in the 6th Circuit, and saying that de minimis use exists in sampling:
We reject that interpretation of § 114(b). Bridgeport
ignored the statutory structure and § 114(b)’s express
limitation on the rights of a copyright holder. Bridgeport also
declined to consider legislative history on the ground that
“digital sampling wasn’t being done in 1971.” ... But the state of technology is irrelevant to interpreting
Congress’ intent as to statutory structure. Moreover, as
Nimmer points out, Bridgeport’s reasoning fails on its own
terms because contemporary technology plainly allowed the
copying of small portions of a protected sound recording....
Close examination of Bridgeport’s interpretive method
further exposes its illogic. In effect, Bridgeport inferred from
the fact that “exclusive rights . . . do not extend to the making
or duplication of another sound recording that consists
entirely of an independent fixation of other sounds,”
... the conclusion that
exclusive rights do extend to the making of another sound
recording that does not consist entirely of an independent
fixation of other sounds. As pointed out by Nimmer,
Bridgeport’s interpretive method “rests on a logical fallacy.” ...
A statement that rights do not extend to a particular circumstance does not automatically mean that the
rights extend to all other circumstances. In logical terms, it
is a fallacy to infer the inverse of a conditional from the
The ruling also rejects that weird "physical taking" line quoted above as a reason to ignore de minimis use as a defense against infringement:
We disagree for three reasons. First, the possibility of a
“physical taking” exists with respect to other kinds of artistic
works as well, such as photographs, as to which the usual de
minimis rule applies.... A
computer program can, for instance, “sample” a piece of one
photograph and insert it into another photograph or work of
art. We are aware of no copyright case carving out an
exception to the de minimis requirement in that context, and
we can think of no principled reason to differentiate one kind
of “physical taking” from another. Second, even accepting
the premise that sound recordings differ qualitatively from
other copyrighted works and therefore could warrant a
different infringement rule, that theoretical difference does
not mean that Congress actually adopted a different rule.
Third, the distinction between a “physical taking” and an
“intellectual one,” premised in part on “sav[ing] costs” by not
having to hire musicians, does not advance the Sixth Circuit’s
view. The Supreme Court has held unequivocally that the
Copyright Act protects only the expressive aspects of a
copyrighted work, and not the “fruit of the [author’s] labor.”
... Indeed, the Supreme Court in Feist explained at
length why, though that result may seem unfair, protecting
only the expressive aspects of a copyrighted work is actually
a key part of the design of the copyright laws....
Accordingly, all that remains of
Bridgeport’s argument is that the second artist has taken
some expressive content from the original artist. But that is
always true, regardless of the nature of the work, and the de
minimis test nevertheless applies.
And thus, the 9th Circuit directly admits that it's creating a circuit split, which makes it much more likely that the Supreme Court may take up the issue:
Because we conclude that Congress intended to maintain
the “de minimis” exception for copyrights to sound
recordings, we take the unusual step of creating a circuit split
by disagreeing with the Sixth Circuit’s contrary holding in
Bridgeport. We do so only after careful reflection because,
as we noted in Seven Arts Filmed Entertainment Ltd. v.
Content Media Corp.,..
“the creation of a circuit split would be particularly
troublesome in the realm of copyright. Creating inconsistent
rules among the circuits would lead to different levels of
protection in different areas of the country, even if the same
alleged infringement is occurring nationwide.” ... We
acknowledge that our decision has consequences. But the
goal of avoiding a circuit split cannot override our
independent duty to determine congressional intent.
Otherwise, we would have no choice but to blindly follow the
rule announced by whichever circuit court decided an issue
first, even if we were convinced, as we are here, that our
sister circuit erred.
It also notes, as we did, that no one would ever be able to tell that the Madonna song sampled Bus Stop:
After listening to the recordings, we conclude that a
reasonable jury could not conclude that an average audience
would recognize the appropriation of the composition.
Furthermore, the fact that the sample was modified helps Madonna's case:
The horn hit itself was not copied precisely. According
to Plaintiff’s expert, the chord “was modified by transposing
it upward, cleaning up the attack slightly in order to make it
punchier [by truncating the horn hit] and overlaying it with
other sounds and effects. One such effect mimicked the
reverse cymbal crash. . . . The reverb/delay ‘tail’ . . . was
prolonged and heightened.” Moreover, as with the
composition, the horn hits are not isolated sounds. Many
other instruments are playing at the same time in both Love
Break and Vogue.
The ruling even notes that VMG Salsoul's own expert "misidentified" the source of the sampled note, showing that even their own expert couldn't correctly understand what was sampled here (oops). And in the end, the court supports de minimis use:
We hold that the “de minimis” exception applies to
actions alleging infringement of a copyright to sound
Separately, the court did overturn the district court awarding attorneys' fees in the case, saying that the lawsuit was not "objectively unreasonable" in light of Bridgeport, even if that case was disputed by many.
There is also a really confused dissent by Barry Silverman that goes along the "copyright is a property right and any infringement on that right is bad" line of thinking:
The plaintiff is the owner of a copyright in a fixed sound
recording. This is a valuable property right, the stock-intrade
of artists who make their living recording music and
selling records.... It is no
defense to theft that the thief made off with only a “de
minimis” part of the victim’s property.
And then there's this:
True, Get a license or do not sample doesn’t
carry the same divine force as Thou Shalt Not Steal, but it’s
the same basic idea. I would hold that the de minimis
exception does not apply to the sampling, copying, stealing,
pirating, misappropriation – call it what you will – of
copyrighted fixed sound recordings. Once the sound is fixed,
it is tangible property belonging to the copyright holder, and
no one else has the right to take even a little of it without
It's kind of horrifying when an appeals court judge doesn't know the difference between theft and infringement. Thankfully, he's in the minority.
Either way, this circuit split increases the chances of the Supreme Court weighing in. That could be good in finally getting the 6th Circuit precedent destroyed. Or... it could be bad in that this particular Supreme Court seems to almost always get copyright cases wrong, meaning it could affirm the 6th Circuit interpretation and dump the 9th's, once again doing serious harm to sampling as an art form.
Meanwhile, however, over in Germany, they've taken a much more enlightened view on all of this in a similar case involving Kraftwerk whining about a hip hop song sampling some of its music. The German Bundesverfassungsgericht (German federal constitutional court) has given a big okay to samples by noting that their artistic merit outweighs the copyright issue:
If the artist’s freedom of creative expression is measured against an interference with the right of phonogram producers that only slightly limits the possibilities of exploitation, the exploitation interests of the phonogram producer may have to cede in favour of artistic dialogue.
The ruling basically tries to balance the right to "artistic freedom" with copyright law, and basically argues that in cases where those doing sampling aren't doing any real harm to the original copyright holder, the artistic freedom should win out. The court rejects the idea that using a short sample interferes with the copyrights of the original:
The presumption by the Federal Court of Justice that even the inclusion of very brief sound sequences constitutes an interference with the plaintiffs’ right to protection as phonogram producers if the used sequence can be reproduced so as to sound like the original, does not take sufficient account of the right to artistic freedom. Where a musical artist who intends to use samples to create a new work does not want to refrain from including a sample in his new piece of music, the strict interpretation of free use by the Federal Court of Justice puts him in the position of having to decide whether to obtain a sample license from the phonogram producer or to reproduce the sample himself. In both cases, however, the freedom of artistic activity and hence also the further cultural development would be restricted.
Just because you can license some samples doesn't fix the situation:
Emphasising the possibility to obtain a license does not provide an equivalent degree of protection of the freedom of artistic activity: A right to be granted a license to use the sample does not exist; due to his right of disposal, the phonogram producer may deny a licensing without having to give reasons and irrespective of the readiness to pay for the use of the sample. The phonogram producer is entitled to demand the payment of a license fee for the use of the sample, the amount of which he is free to determine. The process of granting rights is extremely difficult in case of works which assemble many different samples in a collage-like manner. These problems are only solved insufficiently by existing sample databases and service agencies that assist musical artists in the process of sample clearing.
In other words, the German approach here is a big, big deal, recognizing that sampling is a form of artistic expression, and requiring licenses for it stifles creativity and musical expression. This is a much bigger deal than the US situation, where we're still arguing over de minimis use (and not even fair use!). Meanwhile, over in Germany they're directly looking to enable more artistic freedom.
The weird saga of the insanely thin-skinned Turkish President Recep Tayyip Erdogan continues. As you'll recall, he's on a legal crusade against a German comedian who recited a purposely ridiculous insulting poem about Erdogan on TV (as a response to the stories about Erdogan's thin skin). Erdogan's lawyers found a little used (and little known) "lese majeste" law on the German legal books that makes it a crime to insult representatives of foreign nations. The comedian, Jan Bohmermann, admits that the poem in question was over the top, but that was the point. When you hear about a foreign leader spending so much effort on trying to sue anyone who insulted him, no matter how slight, it's actually pretty tempting to add to the pile of insults.
In Tuesday's ruling the court found that "Erdogan does not have to put up with the expression of certain passages in view of their outrageous content attacking (his) honour."
Why not? While it may sound flip, it's a serious question. He's the leader of a country of almost 80 million people. Shouldn't we be at least a little concerned that he apparently turns into a cowering puddle of emotions the second people make fun of him? Most people put up with other people insulting them just fine, and we aren't leaders of a major nation state. Why is a German court so willing to toss out any basic free speech rights around satire just to please a foreign leader who can't take a joke?
The court didn't ban the entire poem, but even just picking what can and can't be said seems like a ridiculous thing for a court to be involved with at all:
The court ruled that only six lines of the 24-line poem by German comedian Jan Boehmermann could be recited, offering the Turkish leader a partial legal victory.