by Mike Masnick
Tue, Aug 14th 2012 8:24pm
by Leigh Beadon
Tue, Jun 26th 2012 3:06pm
from the fair-dealing dept
Close on the heels of Canada's recent copyright reform bill (which despite significant problems also contains some fantastic language that carves out important new exceptions to copyright) the Federal Court of Canada has issued a significant ruling that answers some key questions about copyright online. The decision is in a lawsuit filed by Richard Warman and the National Post against the operator of a forum, and looks at two main points: the right to quote news articles, and the right to link to a photo. On the first question, the court made it clear that even a several-paragraph quote is protected, on not just one but two levels:
While the first claim (Warman's article) was dismissed on the basis that it took too long to file the lawsuit, the legal analysis on the National Post claim involving an article by Jonathan Kay assesses the copyright implications of posting several paragraphs from an article online. In this case, the article was 11 paragraphs long. The reproduction on the Free Dominion site included the headline, three complete paragraphs and part of a fourth. The court ruled that this amount of copying did not constitute a "substantial part" of the work and therefore there was no infringement. The court added that in the alternative, the reproduction of the work was covered by fair dealing, concluding that a large and liberal interpretation of news reporting would include posts to the discussion forum. The decision then includes an analysis of the six factor test and concludes that the use was fair.
Both aspects of that part of the ruling are clear and could have a huge impact on copyright licensing in Canada. Perhaps most notably, as Michael Geist also points out, it raises even more serious questions about the disastrous situation surrounding Access Copyright negotiations at Canadian colleges and universities, and makes the already terrible deal (which many schools are signing on to) look even worse. Unfortunately, since the AUCC all but abandoned its members in those negotiations, many schools will have a hard time benefitting from this ruling—but for those universities that have decided to reject the deal and fight the good fight, the ruling represents a substantial boon to their position.
On the subject of linking to a photo, the decision lays down a third important standard, and is again unequivocal about doing so:
The third claim involved a link to a photograph posted on the photographer's site. The court had no trouble concluding that the link was not copyright infringement, rightly noting that the photographer authorized the communication of the work by posting it on his website. This finding should put an end to claims that linking to copyright materials somehow raises potential legal risks. The Supreme Court of Canada has already ruled against attributing defamation to such links and now the Federal Court has concluded that links cannot be said to constitute unauthorized communication and therefore infringement.
To many of us, that's just common sense: putting something on the internet constitutes a public invitation to link to it. But for years, time and time again we've seen courts and companies around the world attempt to claim that linking is infringement, or otherwise not allowed. And, indeed, this also has serious implications for the Access Copyright agreement, which has schools paying licensing fees and obeying rules for linking to material, despite it becoming clearer and clearer that copyright does not cover these activities.
All told, this is an excellent decision, and offers further proof that Canada has the very real potential to move copyright law in a positive direction. There are still lots of battles to be fought, but there's also a genuine emphasis on the rights of users (especially in the courts) that can hopefully be harnessed and nurtured more and more over time.
by Mike Masnick
Mon, Jun 4th 2012 6:45am
AOL Threatens Blogger With Copyright Infringement Charge... For Doing The Exact Same Thing AOL Has Done On A Large Scale
from the shameful dept
Enter, Maryland Juice. A local Maryland blog, which recently had a post about some happenings in Montgomery County, which included relatively large excerpts of parts of an article from Patch, another property owned by AOL. It also included an image from the article. The Maryland Juice article included a significant amount of commentary about the article and, in particular, the photo, which was used to illustrate the point (that it was not a representative sample of county residents at the local meeting). And, yet... AOL lawyers sent a cease and desist letter:
As owner of the Content, AOL has the obligation to prevent the improper use of its proprietary material. Before pursuing any additional avenues to remove the Infringing Content, we are demanding that MarylandJuice.com take immediate steps to remove Patch’s image and either 1) display no more than a 1-2 sentence snippet of this Content, with credit explicitly given as well as a link back to the full article available at http://wheatonmd. patch.com/articles/proposed-rule-change-for-accessory-apartments-meets-opposition ; or 2) remove and disable access to all Infringing Content, and agree to never repost or use the Infringing Content or any other AOL Content, absent compliance with the third-party use guidelines identified above.David, the Maryland Juice blogger, explains how excerpting, discussing and linking is all part of being neighborly online, and tells AOL to shove off, claiming fair use. Of course, you know who should know an awful lot about this kind of thing? Yeah, AOL and HuffPo. You see, a few years ago, when HuffPo tried to do its own "hyper local site," it was accused of doing more or less the exact same thing (but with less commentary, and more copying):
But, apparently, when someone does it to AOL, it's no longer okay? Now that's hypocritical.
And seeding HuffPo Chicago is a scheme whereby the publication takes some — in many cases all — of the content from another site, with a link back to the original.
The result is quick and easy traffic for the new Chicago edition, since the publication ends up catching some Google searches for keywords contained in the (Chicago-related) articles it takes. HuffPo already has good Google PageRank, so its own version of the content floats to the top of the results, even though it was not the original source.
HuffPo's justification, at least when the publication was pulling this crap with us, taking the entirety of our RSS feeds, was that the reprinted posts were good promotion, since they included (a totally buried) backlink to the original content on our site.
by Mike Masnick
Wed, May 30th 2012 11:31pm
newspaper licensing ireland
from the uh,-no dept
"a licence is required to link directly to an online article even without uploading any of the content directly onto your own website"The lawyer representing Women's Aid smartly posted its own reply publicly asking NLI to "specify the statutory basis of this claim." It also notes the pricelist, including the fact that NLI seems to think that linking to between one and five articles requires €300 annually. Furthermore, the letter notes the terms of service on various news websites that allow linking -- even though this is really besides the point, since copyright law does not forbid linking in the first place.
by Mike Masnick
Mon, Apr 23rd 2012 10:10am
from the warning-signs dept
by Mike Masnick
Thu, Apr 12th 2012 11:15am
from the what-happens-when-you-have-no-one-technological-on-staff dept
“It is true that service providers are not required to police their sites for infringement, but they are required to investigate and respond to notices of infringement—with respect to content and repeat infringers,”Now, it is absolutely true the DMCA requires that a site have a policy for terminating repeat infringers. But it does not go so far as to say that they then need to proactively "investigate" content related to repeat infringers as the court stated. EFF and Public Knowledge filed amicus briefs pointing out how this is not clear at all, and is quite problematic, since sites don't quite know what is and what is not infringing. This is a big issue, because the sheer vagueness of the law leaves plenty of sites exposed -- and as we recently noted, the way the DMCA (stupidly) works, is that if you fail to meet each and every complex condition of the safe harbors, you can lose them all entirely. That's ridiculous, but that's how the law is set up.
Google and Facebook also weighed in on the case, bringing up some of the same points, but raising the bigger issue of the pure insanity that Flava Works (and the judge!) appear to think that an embed/link is the same thing as hosting the content yourself. This case is in the 7th Circuit, but over in the 9th Circuit, there is a perfectly reasonable and logical decision in one of the many Perfect 10 cases, which establishes the totally common sense "server test." Basically, it's this: is the content distributed from your server? No? Then you're not the one guilty of direct infringement. This makes sense because it's correct. Anyone with even an ounce of technological knowledge understands that embedding a video is not the same as hosting a video. So, that's what Google and Facebook explained to the appeals court.
So what did the MPAA in its luddite-soaked haze have to say about all of this? Yeah, it sarcastically dismisses common sense and launches itself headlong into crazy land by insisting that it's the folks who think the server test is reasonable who are out to lunch:
"Even assuming that Amazon.com’s novel 'server test' applied to the display right (and it should not), the statutory language clearly precludes application of that test to the separate performance right. myVidster users who posted embedded links to video streams directly infringed the performance right even though they did not necessarily possess a copy of the infringed work."I realize that the MPAA isn't known for having any technological capability whatsoever, but it has to be said: this is just flat out wrong. Embedding does not directly infringe the performance right. They're linking to someone else's server entirely. That host may directly infringe the performance right, but the person who embeds/links to it cannot. Because they have no control over the work at all. They literally are writing an insanely short line of text (or, more likely, copying that tiny line of text) that literally just points your browser to some other server. That's it. When merely pointing someone to another server is seen as direct infringement of a performance right, we've got serious problems.
And it doesn't end there (of course). The MPAA also tries, again, to pretend that the DMCA requires proactive filtering. They complain that MyVidster:
... willfully blinded itself to infringements by failing to take steps, like filtering, to identify re-postings of the same infringing links that Flava had already identified.Yes, the MPAA is trying to lie and back its way into a proactive requirement for sites to monitor by saying that failing to filter is "willfully blinding." That's wrong. It's obnoxiously wrong. It's the MPAA trying to rewrite the DMCA and add in SOPA filtering requirements on the fly, even though its lawyers already know this argument has failed over and over again. The MPAA just seems to believe if it keeps saying it, maybe it'll find a clueless court to agree.
This is what's so pitiful about the MPAA. When they lose, they don't realize they were wrong, they just keep arguing the same damn thing in court over and over again, and act shocked that anyone might argue otherwise, even though they've lost this argument in court over and over again.
by Mike Masnick
Tue, Feb 7th 2012 1:49pm
from the rev-up-those-numbers dept
- Okay, let's start with the obvious one: you don't need, have never needed and will never need a license to link to another website. Sorry. It's just ridiculous to even contemplate such a thing -- especially in this day and age.
- Yes, okay, so we've heard a few stories of sites doing similar things in the past... but they were either wacko sites run by nutty people, or they happened a decade or more ago, before people understood the web. Well, or a government-connected bureaucracy. That this would be a giant retailer in 2012 requiring such a license to link? That's just insane.
- Note that they have not one, but three separate licenses to link. The other two are much more about if you're using logos or other trademarks, which is only slightly more understandable (though there are plenty of situations under which you wouldn't need a license to use their logo or marks either...). But this highlights the key insanity. If it had just been one license that talked about logo/mark usage, they may have been able to claim that's really all they meant. But here, they've specifically carved out the situation under which no logo/mark is being used. In other words, they've deliberately carved out the situation in which no license would ever be needed.... and then offered up a license for that. That's insane.
- The only way to send the signed license in is to fax it. Yes. The only way. For a license about internet links. Is to fax it. Fax. That's insane.
- Lowe's insists that it can terminate this license for any reason. Except... um... such a license is not valid and anyone can link to them. So, terminate away.
- When Anderson contacted Lowe's PR about this, rather than taking down the bogus license or just running and hiding in shame for being digitally clueless, the company stood by the license:
"Managing link agreements is part of protecting our brand," is the polite reply I received. "The process we have in place to handle links to lowes.com is a business decision."Let's be clear about this: nothing in that statement makes one iota of sense. It's pure insanity. Managing link agreements does nothing to protect your brand, because it's licensing something that doesn't require a license because you have no control over it. At all. In fact, it's the opposite of protecting your brand, because it makes your brand, and your entire company, look clueless. Also, it may have been a "business decision," but it's one that makes no sense, carries no legal weight, and makes the company seem entirely ridiculous.
by Mike Masnick
Mon, Feb 6th 2012 5:50am
from the insanity-of-today's-copyright-laws dept
This leads to a simple fear. If he merely pointed people to the location of these completely legal versions of the work, he would now be just as "guilty" as Richard O'Dwyer under the interpretation of the US Justice Department. After all, he is using a .com domain (American property, according to the stretched interpretation of the DOJ) to link to works that technically infringe in both the UK -- where he is -- and the US, where the DOJ has suddenly become the US entertainment industry's private police force.
This is creating a truly chilling effect on speech around the globe. The public domain is the public domain for a purpose, and it's somewhat insane to think that US actions are now chilling the mere discussion of where public domain works in other countries can be obtained completely legally in those countries.
by Mike Masnick
Mon, Dec 12th 2011 7:35am
from the let's-see-what-they-find-out dept
It looks like he may be getting other reminders as well. Senator Ron Wyden told Wired that he intends to start asking significant questions about Operation In Our Sites, and it doesn't sound like he's going to give up easily:
“I expect the administration will be receiving a series of FOIA [Freedom of Information Act] requests from our office and that the senator will have very pointed questions with regard to how the administration chooses to target the sites that it does,” said Jennifer Hoelzer, a Wyden spokeswoman. She said the senator was “particularly interested in learning how many secret dockets exist for copyright cases. There doesn’t seem to be an obvious precedent or explanation for that.”I'll certainly be interested to see what they turn up.
by Mike Masnick
Wed, Oct 19th 2011 7:04am
from the political-maneuvering dept
However, while the existing law stands, it's a bit surprising to see that one Spanish court has gone completely in the other direction and found the operators of a couple sites to be guilty of criminal copyright infringement, for which they may face a year in jail, in addition to fines. The lawyer for one of the guys suggests that this ruling is a result of politics, not the law. It's hard not to think that way given how it appears to fly in the face of most other decisions in Spain. I would imagine that there's still going to be an appeal in the case before it's really settled.