There’s a whole chapter of Walled Culture the book (free digital versions available) devoted to the serious attack on libraries and their traditional functions that is being carried out by major publishers. The latter are using digital copyright law to take advantage of the shift to eBooks by moving from one-off sales to a recurrent licensing model. The Knowledge Rights 21 (KR21) group are also concerned by what is happening here:
As publishers have moved away from selling physical works outright to offering licences for access, exceptions and limitations in copyright law risk being overridden by licence terms.
Libraries have as a result lost their right to buy books, maintain their collections, and even undertake basic library functions such preservation and lending books between libraries. Issues such as publishers refusing to offer licenses, unsustainable prices many times higher than the that for the equivalent paper book or CD, titles not available digitally, and even loss of collection items purchased are not uncommon.
In order to combat this loss and protect libraries, KR21 has drawn up an eBook pledge:
calling on publishers to sign up and adopt a set of principles laid out therein, while of course continuing to support more user-friendly models, including open eBooks. We also call on libraries and consortia to adopt the eBook pledge principles when negotiating with publishers. By making these principles part of the agreements they sign, including the rights to acquire titles, engage in collection development, preserve collections, and lend to the public and other libraries, libraries can continue to be beacons for the dissemination of knowledge in the 21st Century.
To make all eBooks available to libraries to preserve and to lend to the public directly or via inter-library loan, as soon as they are available to the public.
To make all eBooks individually purchasable by libraries outside of bundles.
To offer pricing for the Digital File on a “one copy one user” basis that is the same or similar to the price of the paper copy of the book, where available.
To allow all registered users of the library to access eBooks onsite and off.
To not withdraw titles during the subscription period, and with at least 12 months prior notice to both libraries and authors, unless required due to an unforeseen legal reason.
To provide authors with appropriate remuneration for the lending of their works by libraries.
The last of these brings up an important point that I’ve not seen discussed elsewhere. Along with all the serious problems that many publishers are creating for libraries with the shift to eBooks, it turns out that authors too are suffering. As KR21 writes:
according to one study, many European authors of fiction and other trade titles are not paid royalties by their publishers for the licences sold to libraries.
Authors already get a pretty raw deal from publishers, and it’s unacceptable that the rise of eBooks seems to be exacerbating that. Any publisher that values authors and regards itself as helping to nurture culture, rather than simply feeding off it, should be signing up to the new Library eBook Pledge. Sadly, at the time of writing, few have.
Earlier this week there was finally a hearing in the case brought by the big book publishers to kill off libraries. That, of course, is not how the publishers describe the lawsuit, but it’s absolutely what the lawsuit is about.
We’ll get to some of the details in a moment, but we’ve joked in the past that if libraries were new today there’s no way that book publishers would let them exist. In some ways they’re a legacy holdover from before publishers had that much power. The attack on controlled digital lending (CDL) more or less proves this.
As much as publishers like to claim they “love libraries,” their actions here speak quite clearly that they would destroy them if they could. Controlled digital lending is no different from how a library lends out books today. In both cases, it gets a physical copy of the book (either through purchase or donation), and then proceeds to lend out that copy. With a physical library it’s literally that physical copy. With CDL it’s a scan of that book, but the scan is tied to the physical copy, so that if a digital copy is loaned out, no one else can take out another copy.
Every part of that has been deemed legal. Copyright law already has first sale rights, written directly into the law and allow for the lending or reselling of copyright-covered works without a license or permission. Similarly libraries are given explicit rights to make copies, so long as those collections are made available to the public. On top of that, courts have determined, multiple times, that book scanning itself is fair use for libraries.
So, literally each separate component of what is happening with Controlled Digital Lending has already been deemed to be legal and exactly what we expect libraries to do.
To counter this, publishers (and their supporters, which unfortunately include some authors) argue that (1) this interferes with the market for licensed ebooks, and (2) that there is a real difference in lending out the digital scans: that they don’t deteriorate the way that physical books do.
There are simple answers to both of these. First, (1) is a preposterous argument because (yet again) you could say the exact same thing for regular, existing libraries. The question is not must copyright enable any market. It’s whether or not copyright allows certain behaviors, and here it absolutely does. And that doesn’t even get into the fact that the big publishers have turned licensed ebooks for libraries into an extortionate, nonsense scheme to effectively block libraries from lending ebooks at all. If anything, what’s happened in the market for licensed ebooks to libraries actually helps to prove why we need controlled digital lending in the first place.
As for (2) that argument is also garbage for a number of reasons, most notably that official ebooks are just generally way more useful than the scanned ebooks anyway. The formatting is better, they’re designed to work better on ebook readers which provide additional features. In almost every case, scanned CDL books are a second-best choice compared to what else is available. In other words, it’s most likely only used when other options aren’t readily available.
Update: After this post was written, but before it was published, one of the authors of this book published a post on Facebook saying that the copyright license text discussed below was a mistake and was removed in future copies. I’m leaving the overall text here to note the kind of attitude, but will note that they disclaim it (though their explanation does not make much sense, as I can’t see why a “formatter” would add text, or why its “intention” made any sense either. I have removed the images of used copies for sale at the end of this article, however. Either way, here is the original text which is still representative of how some people view copyright: But, again, the legacy book publishing world is really admitting they hate libraries. Somewhat incredibly-timed, the same day as the hearing in this lawsuit, a tweet went viral highlighting a laughably wrong copyright statement from a “dark fantasy romance series” called “Zodiac Academy.” The verbiage on the copyright page is so over the top that it made me wonder if it was parody:
It reads:
This book is licensed for your personal enjoyment only.
This book may not be re-sold or given away to other people. If you would like to share this book with another person, please purchase an additional copy for each recipient. If you’re reading this book and did not purchase it, or it wasn’t purchased for your use only, then please return to your favorite book retailer and purchase your own copy. Thank you for respecting the hard work of this author.
All rights reserved.
That’s not how any of this works. The very next line says “This is a work of fiction” which is supposed to apply to the book itself, but could accurately be used to describe the “license” claims above it. A license for written works is limited to what the author can claim under copyright law, and as noted above, none of what is claimed here is allowed under copyright law, meaning that this license itself is a form of copyfraud: it attempts to limits a users’ own rights through deception regarding the actual limits of copyright law.
This particular bit of nonsense has shown up on Reddit in the past as well, but went even more viral this time, and at a perfect time to highlight just how much the modern publishing industry absolutely would destroy libraries if given the opportunity.
And that brings us to the hearing. You never quite know how a judge is going to rule, and from the descriptions of the arguments in court it sounds like Judge John Koeltl asked tough questions of both sides. He challenged the publishers to explain if they had any evidence that the Internet Archive’s Open Library caused them any harm (as their own bottom lines grew massively after it was opened).
However, he also questioned whether or not the Internet Archive really has the right to make copies. The answer to that question should be obviously yes, based on the law and the case law on this matter, but you never know how judges will rule. The publishers, for their part, tried to argue away their successful pandemic run by arguing… they should have made even more money:
During this same time, however, the book publishing industry experienced so much demand that revenues rose by 12 percent, amounting to a $3 billion spike in sales by 2021, Publishers Weekly reported. Because publishers profited when the National Emergency Library was made available, Koeltl pushed back on McNamara, asking how to reconcile the surge in profits with allegations of harm caused.
McNamara seemed to suggest that publishers would have been further enriched if not for IA providing unprecedented free, unlimited e-books access. She also told Koeltl that publishers suing—Hachette, HarperCollins, Penguin Random House, and Wiley—are concerned that there are already some libraries avoiding paying e-book licensing fees by partnering with IA and making their own copies. If the court sanctioned IA’s digitization practices and thousands of libraries started digitizing the books in their collections, the entire e-book licensing market would collapse, McNamara suggested.
But, uh, the same argument could be easily made against existing libraries. And yet, we treasure them and they’ve done nothing to destroy the book market (and much to help it!). The lawyer for the publishers also trotted out this debunked nonsense:
“Free is an insurmountable competitor,” the publishers’ complaint said.
I mean, we’ve been hearing that stupid line for ages, and it’s never been true. As I noted nearly two decades ago, saying you can’t compete with free, is actually an admission that you can’t compete at all. As noted above, there is a qualitative difference between scanned ebooks and licensed ones, but the publishers don’t even seem to recognize this, which is incredible.
There’s also this nonsense from former Copyright Office boss, now publisher top lobbyist, Maria Pallante (who Ars bizarrely describes as “a chief executive” rather than the chief executive):
A chief executive of the Association of American Publishers, Maria Pallante, told The Wall Street Journal that if IA’s conduct “is normalized, there would be no point to the Copyright Act.”
That’s utter nonsense. Again, apply that same reasoning to libraries. What the Internet Archive is doing here is not only blessed by the Copyright Act, it’s no different than what libraries already do.
Either way, now we wait. Whatever outcome in this case, it will surely be appealed, and that’s where the real battle will happen. Hopefully Judge Koeltl starts things off on the right foot.
Square Enix, the game studio behind famous video game franchises like the Final Fantasy series, is well known to be a big believer in intellectual property enforcement. Just on our pages alone, we’ve talked about the times they struck out against folks selling replica swords from its games, or fan-made productions featuring Square IP in them. As we’re always careful to mention, Square Enix can do this, but it doesn’t mean it should or has to handle its intellectual property concerns in the most draconian manner possible.
Plus, it’s always fun when the shoe is suddenly on the other foot. And that may be exactly what we’re seeing when some gaming sleuths uncovered at least one asset in Crises Core – Final Fantasy 7 – Reunion that appears to have a washed out Getty watermark over it.
During chapter eight of the game, you’ll enter a Shinra mansion. In this very nice-looking and opulent home you’ll find many fancy paintings hanging on the walls. Look closely and you’ll discover these are real paintings. Look a little closer and you’ll clearly see where Square Enix grabbed the art from.
You can see the Getty watermark nearly dead center in the image. Now, did someone at Square properly license this image? Maybe, though it would be weird for them to have used the watermarked version if it did. More likely some Square employee somewhere in the development of the game needed an image depicting art, grabbed this one, and perhaps thought it would never get found out.
It appears that whoever grabbed this image from Getty—and possibly didn’t pay to license it, as the watermark is still there—stretched it out and cropped most of its top to make it fit in the frame. And this isn’t a one-off error. The resulting painting appears at least three times in this area of the game complete with the Getty watermark. Whoops!
Whoops in multiple ways. First, this can open the company up to a lawsuit if it turns out the image was never licensed. Second, it does at least some reputational damage for any future attempts by Square to claim itself to be a true believer in copyright enforcement.
But what it means perhaps more than anything is to serve as yet another reminder for just how easy it is to infringe on intellectual property rights. It’s all too often the pot becomes the kettle.
You may recall that, back in August, we wrote about the bizarre situation of a company called “Business Casual” and its CEO, Alex Edson. Business Casual makes highly produced videos. It made a few on historical topics, including taking some public domain images and modifying them significantly to make “paralax images” that added a sort of 3D feel. Edson/Business Casual claim (credibly!) that RT Arabic, the Arabic language wing of Russia Today, owned by TV-Novosti, copied parts of some of their videos. There were some DMCA claims he filed and then a lawsuit against TV-Novosti.
All that is… perfectly reasonable?
But then, for unclear reasons, Edson decided to sue YouTube/Google as well, claiming direct infringement among other things. That lawsuit did not go well. Not well at all.
It got much more bizarre over the summer, because Edson’s lawyer, Ron Coleman (who these days seems to specialize in fighting ridiculously bad culture war lawsuits which have no chance of success) kept filing for delays on filing for permission to file an amended complaint, saying that Edson was dealing with debilitating health problems. But… the very day that he filed the third such “Edson’s ill, we need more time,” motion (directly stating that Edson “is in agonizing pain and cannot function at this time“), a very healthy looking Edson was releasing a two hour long video on YouTube (complete with a very bad Putin impersonator) explaining — poorly — some details of copyright law, and claiming that YouTube is an “anti-American” company. He also claims, in truly dramatic fashion, that YouTube’s lawyers are “pathological liars” among other things.
While YouTube’s lawyers alerted the judge to this video, the judge ignored it and still granted the extension. Coleman eventually got around to submitting the actual filing. And, right before Thanksgiving the judge ruled on it — again highlighting how truly bad the legal arguments being made are.
First, Edson/Business Casual argue that YouTube failed to apply its “repeat infringer” policy to TV-Novosti by not suspending the account (or rather, suspending it only briefly). But, as the judge notes, the DMCA’s repeat infringer policy requirement (DMCA 512(i)), are only about whether or not a website is eligible for the DMCA’s safe harbors. It’s not its very own cause of action. But Coleman seems to think it is. The judge disabuses him of this:
Plainly, the plaintiff here is attempting to assert an
independent claim against YouTube for its alleged failure to
discontinue TV-Novosti’s account in accordance with its Repeat
Infringer Policy. Lest there be any doubt on this point, the
plaintiff asserts in its motion papers that YouTube’s failure to
“terminate the accounts of repeat infringers . is why we are
here.” Pl.’s Reply at 1. But as this Court already made clear,
Business Casual “misconstrues the safe harbor provisions of the
DMCA and how [those provisions] interact with the other federal
copyright laws.” First Opinion, 2022 WL 837596, at *5. The DMCA
does not establish an affirmative cause of action. Rather, the
DMCA provides internet service providers (“ISPs”) with potential
“safe harbor” defenses that will shield ISPs from liability for
copyright infringement so long as certain statutory criteria,
including the maintenance of a policy for terminating “repeat
infringers,” are met. See Arista Records LLC v. Usenet.com,
Inc., No. 07-cv-8822, 2008 WL 4974823, at *4 (S.D.N.Y. Nov. 24,
2008); Martin v. Tumblr, Inc., No. 15-cv-8338, 2017 WL 11665339,
at *4 (S.D.N.Y. Feb. 10, 2017) (DMCA provision “does not create
a right of action, but rather creates a defense to liability, or
safe harbor”); see also 17 U.S.C. § 512(i)(l)(A) (an ISP will
qualify for the “limitations on liability established by this
section . only if the [ISP] . has adopted and reasonably
implemented” a “policy that provides for the termination” of
“repeat infringers”). Put differently, an ISP’s compliance with
the DMCA’s safe harbor provisions does not come into play until
a plaintiff pleads a viable copyright infringement claim against
the ISP in the first instance, at which point, the ISP may
assert its eligibility for a safe harbor as a defense to
liability. See Arista Records, 2008 WL 4974823, at *4 (DMCA’s
“limitations of liability apply if the provider is found to be
already liable under existing principles of law”).
In short, Business Casual cannot transform the DMCA’s
prerequisites for a safe harbor defense into the basis for an
affirmative claim against YouTube. That is not how the statute
was written, and it is not for the Court to permit a cause of
action that Congress did not create. The allegations concerning
YouTube’s failure to terminate TV-Novosti’s channels would be
relevant here only if the plaintiff had first pleaded a
plausible claim for copyright infringement, thereby shifting the
burden to YouTube to establish its entitlement to a DMCA safe
harbor defense.
But… therein lies a problem. Because there is no plausible claim of liability for YouTube. There may well be a plausible claim against TV-Novosti, but that doesn’t magically make YouTube liable as well. Indeed, this case is complicated by the fact that Business Casual uploads its videos to YouTube granting YouTube a license to them. That doesn’t mean that TV-Novosti gets a license, but it does mean that suing YouTube for infringement (especially direct infringement) makes no sense, as it already has a license to the work, and therefore cannot be infringing:
In any event, the plaintiff’s Amended Complaint fails to
state a claim for direct copyright infringement because it is
devoid of allegations casting doubt on the existence, validity,
or enforceability of the License. As noted in the First Opinion,
“it is a hallmark principle of copyright law that licensors may
not sue their licensees for copyright infringement,” Jasper v.
Sony Music Ent., Inc., 378 F. Supp. 2d 334, 339 (S.D.N.Y. 2005),
and here, Business Casual granted to YouTube a broad License to
“use,” “reproduce, distribute, prepare derivative works [from],
display, and perform” the content in Business Casual’s YouTube
videos, see First Opinion, 2022 WL 837596, at *5. Accordingly,
under the plain language of the License, Business Casual cannot
hold YouTube directly liable for hosting or displaying video
content that Business Casual has uploaded to YouTube’s platform.
That would include the hosting or displaying of the copyrighted
video segments that appeared on TV-Novosti’s YouTube channel,
because Business Casual had authorized YouTube to display those
segments when it uploaded the Rockefeller and J.P. Morgan Videos
to YouTube.
Business Casual tried to argue that nothing in the license allowed YouTube to then license that work to TV-Novosti, but as the judge explains, that’s not how any of this works.
But this argument misunderstands the
import of the License and the nature of YouTube’s license
defense. The relevant question here is not whether YouTube was
entitled to authorize TV-Novosti’s use of Business Casual’s
copyrighted video content. Rather, the question is whether
YouTube’s use of the plaintiff’s content — here, the display of
copyrighted video segments that Business Casual had previously
uploaded to YouTube — fell within YouTube’s broad rights as the
licensee of the plaintiff’s YouTube videos. As discussed above,
the License does cover that use.
What about contributory or vicarious infringement? No, those don’t fly either. Those things require at least some level of knowledge or profiting off of the infringement by YouTube, which is not shown at all.
Like the Original Complaint, the Amended Complaint contains
no allegation that YouTube knew of the allegedly infringing TVNovosti videos before Business Casual lodged its DMCA takedown
notices. To the contrary, the Amended Complaint alleges that TVNovosti manipulated the video content for the precise purpose of
evading YouTube’s detection. Moreover, because YouTube promptly
and permanently removed the First, Second, and Third RT Videos
from its platform once it received the plaintiff’s DMCA notices,
the Amended Complaint does not permit an inference that YouTube
acted in concert with TV-Novosti.
The Amended Complaint also fails to state a claim for
vicarious infringement. To hold a defendant vicariously liable
for another party’s infringing act, a plaintiff must allege
plausibly that the defendant “profit[ed] from [the] direct
infringement while declining to exercise a right to stop or
limit it.” Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd.,
545 U.S. 913, 930 (2005). In this case, the plaintiff’s
allegations foreclose an inference that YouTube declined to
exercise its right to stop TV-Novosti’s alleged infringement.
To the contrary, the allegations indicate that YouTube removed
the First, Second, and Third RT Videos, and thereby stopped the
alleged infringement, shortly after Business Casual notified
YouTube of its copyright concerns.
One other point that the Business Casual complaint kept making is that it took YouTube 23 days to remove one of the videos after receiving one of its DMCA takedown notices. This is used to argue that YouTube wasn’t expeditiously removing infringing works. But, this is presented out of context. As the judge makes clear:
Finally, the Amended Complaint takes issue with the fact
that YouTube removed the Second RT Video 23 days after receiving
the plaintiff’s second DMCA notice. To the extent the plaintiff
intends to suggest that the length of this 23-day period renders
YouTube secondarily liable for TV-Novosti’s infringement, such
an argument is meritless. As before, Business Casual “has not
pointed to any authority” suggesting that YouTube was obligated
to investigate Business Casual’s complaint on “a more compressed
timeline.” First Opinion, 2022 WL 837596, at *4. Moreover, the
new allegations in the Amended Complaint indicate that YouTube
spent the 23-day period actively communicating with Business
Casual and evaluating the alleged infringement, see Am. Compl.
tt 118-119, 123-126, foreclosing any inference that YouTube
simply sat back and allowed the alleged infringement to occur.
Accordingly, the purported delay in YouTube’s removal of the
Second RT Video does not support a contributory or vicarious
infringement claim against YouTube.
In other words, while it did take 23 days, much of that was spent with YouTube communicating back and forth with Business Casual to make sure the work was actually infringing. That’s not ignoring infringement, it’s making sure that it’s not incorrectly taking down non-infringing videos.
Of course, Business Casual immediately appealed, and copyright cases can be a bit of a crapshoot in the appeals court, including the 2nd Circuit. But this seems like a fairly slam dunk bullshit case by someone who does not appear to understand the fundamentals of copyright law, but seems more focused on creating a stupid culture war by misstating how copyright works.
Plenty of people have raised concerns that Donald Trump’s sketchy new social media site, Truth Social, is just a lightly reskinned Mastodon, which is violating Mastodon’s fairly strict AGPLv3 license. As we had previously discussed, the aggressive (and sloppy) terms of service for the site claim that the code is proprietary, and even claims that “all source code, databases, functionality, software, website designs, audio, video, text, photographs, and graphics on the Site (collectively, the ?Content?) and the trademarks, service marks, and logos contained therein (the ?Marks?) are owned or controlled by us or licensed to us…”
Of course, part of the reason that Mastodon uses such a license is to encourage others to take the code and build on it if they abide by the terms of the license. And the nature of Mastodon’s license is that if you use it, you must make the complete source code available of what you build with it. The key bit of the license:
You may convey a work based on the Program, or the modifications to
produce it from the Program, in the form of source code under the
terms of section 4, provided that you also meet all of these conditions:
a) The work must carry prominent notices stating that you modified
it, and giving a relevant date.
b) The work must carry prominent notices stating that it is
released under this License and any conditions added under section
7. This requirement modifies the requirement in section 4 to
“keep intact all notices”.
c) You must license the entire work, as a whole, under this
License to anyone who comes into possession of a copy. This
License will therefore apply, along with any applicable section 7
additional terms, to the whole of the work, and all its parts,
regardless of how they are packaged. This License gives no
permission to license the work in any other way, but it does not
invalidate such permission if you have separately received it.
d) If the work has interactive user interfaces, each must display
Appropriate Legal Notices; however, if the Program has interactive
interfaces that do not display Appropriate Legal Notices, your
work need not make them do so.
It’s not clear that any of these conditions have been met. So, now the Software Freedom Conservancy has given Trump 30 days to bring the code into compliance — specifically by providing the source code to Truth Social to the early users who were able to sign up — or, under the license terms, Trump’s “rights in the software are permanently terminated.”
Early evidence strongly supports that Trump’s Group publicly launched a
so-called ?test site? of their ?Truth Social?
product, based on the AGPLv3’d Mastodon
software platform. Many users were able to create accounts and use it
? briefly. However, when you put any site on the Internet licensed
under AGPLv3, the AGPLv3
requires that you provide (to every user) an opportunity to
receive the entire Corresponding Source for the website based on that code.
These early users did not receive that source code, and Trump’s Group
is currently ignoring their very public requests for it. To comply with this important FOSS license,
Trump’s Group needs to immediately make that Corresponding Source available to all who used the site today while it was live.
If they fail to do this within 30 days, their rights and permissions in the software are automatically and permanently
terminated. That’s how AGPLv3’s cure provision works ? no exceptions ?
even if you’re a real estate mogul, reality television star, or even a
former POTUS.
I and my colleagues at Software Freedom Conservancy are experts at
investigating non-compliance with copyleft license and enforcing those
licenses once we confirm the violations. We will be following this issue
very closely and insisting that Trump’s Group give the Corresponding Source
to all who use the site.
I think that’s called being put on notice. It will be interesting to see how Trump responds — and what happens next.
As the open source world has grown, so have concerns about the context in which openly licensed items are used. While these concerns have existed since the beginning of the open source movement, today?s larger and more diverse movement has brought new urgency to them. In light of this revived interest within the community, the time may be ripe to begin encouraging experimentation with open source licensing again.
How We Got Here
While the history of open source software is long and varied (and predates the term open source software), for the purposes of this blog post its early evolution was driven by a fairly small group of individuals motivated by a fairly homogeneous set of goals. As the approach became more popular, the community developed a wide range of licenses designed to address a wide range of concerns. This ?First Cambrian Explosion? of open source models and software licenses was a time of experimentation within the community. Licenses varied widely in structure, uptake, and legal enforceability.
Eventually, the sprawling nature of this experimentation began to cause problems. The Free Software Foundation?s Free Software Definition and the Open Source Initiative?s Open Source Definition were both attempts to bring some order to the open source software world.
In the specific context of licensing, the Open Source Initiative began approving licenses that met its criteria. Soon thereafter, it released a License Proliferation Report detailing the challenges created by this proliferation of licenses and proposing ways to combat them.
These activities helped to bring order and standardization to the world of open source licensing. While OSI continues to approve licenses, for well over a decade the conventional wisdom in the world of open source has been to avoid creating a new license if at all possible. As a result, for most of this century open source software license experimentation has been decidedly out of style.
Largely for the reasons described in the License Proliferation Report, this conventional wisdom has been beneficial to the community. License proliferation does create a number of problems. Standardization does help address them. However, in doing so standardization also greatly reduced the amount of license experimentation within the community.
Reduced experimentation means that concerns incorporated into approved licenses (access to modifications of openly licensed code) have been canonized, while concerns that had not been integrated into an approved license (restrictions on unethical uses of software) at the moment of formalization were largely excluded from consideration within the open source community.
What Changed
What has changed since the move towards codification of licenses? The open source software world has gotten a lot bigger. In fact, it has gotten so much bigger that it isn?t just the open source software world anymore. Creative Commons – today a towering figure in the world of openness – did not even exist when the Open Source Initiative started approving licenses. Now the open world is open source hardware, and Creative Commons-licensed photos, and open GLAM collections, and open data, and all sorts of other things (this is a whole other blog post). The open source world has moved beyond early debates that questioned the fundamental legitimacy of open source as a concept. Open source has won the argument.
An expansion of applications of open source has lead to an expansion of people within open source. Those people are more diverse than the early open source software proponents and are motivated by a wider range of interests. They also bring with them a wider range of concerns, and a wider range of relationships to those concerns, than early open source adopters.
What is Happening Now
This broader community does not necessarily share the consensus about how to approach licensing that was developed in an earlier period of open source. They bring a range of viewpoints that did not exist in the earlier days of open source software into the open source community itself. They are also applying open source concepts and licenses to a range of applications that were not front of mind – or in mind at all – during the drafting of today?s canonical licenses.
Unsatisfied with the consensus rules that have delivered us the existing suite of (incredibly successful) licenses, parts of the community have begun experimenting again. Veteran open source lawyers are rewriting licenses with public understandability in mind. Community members are transforming their interpretation of open source development into licences that invite collaboration without intending to adhere to the open source definition. Some of theselicenses are designed to address concerns traditionally excluded from the scope of open source licenses. I am directly involved in the ml5.js attempt to do just that.
The creators of these experiments are responding to a standardized approach to licensing that does not fully accommodate their needs and concerns. In some cases the standardized approach does not accommodate these concerns because the community litigated including them in the past and decided it could or should not be done. However, even in those cases, that debate happened within a very different community in at least somewhat different contexts. The conclusions arrived at then are not necessarily valid for the broader world that open source finds itself inhabiting.
In light of that, it may be time to begin encouraging experimentation in open source licensing again. Encourage people to test out new approaches by applying them to real world problems. In some cases, the decisions made in the past will prove to be robust and sustainable. In others, a new debate will reveal the decisions? shortcomings. In both cases, the open source community will be stronger by being tested from within.
Coda: Is This Post Just a Lawyer Advocating for Lawyers to Have More Fun?
Throw out the old ways of doing things! Try something new! Experiment! Is this just a call for lawyers to have fun by screwing around with exotic licensing concepts at the expense of everyone else?s stability (and sanity)?
It could be. But I don?t really think so. The thing about lawyers (as a group – there are always exceptions) is that novelty and instability makes us nervous. Things that are tried and true will probably work. That means we do not have to worry about them. New things – who knows what will happen to them? That uncertainty makes lawyers nervous.
That is part of the reason why lawyers like today?s conventional wisdom. The canonical set of open source licenses have more or less worked for decades. It is unlikely that they will explode, and it is even less likely that they will explode in the face of the lawyer who uses them on any given project. In contrast, any lawyer who writes their own license is setting themselves up for a period of anxiety, waiting to discover what they missed or how things will go wrong.
Of course, some lawyers do think it is fun to cook up new open licenses. And maybe this post is a call for them to do more of it. But, on balance and as a whole, introducing new licenses into the world of open source will probably cause open source lawyers more anxiety than joy.
I think that anxiety is probably worth it. But that will be far from a universally held position.
Long time copyright watchers know that Metallica sullied its reputation with tons of fans when it was the first band to sue the file sharing upstart Napster back in 2000 (and also sued three universities for “not blocking Napster”). The band’s drummer, Lars Ulrich, became an outspoken critic of file sharing and the internet, the early face of super wealthy musicians whining about the internet changing the way they did things, leading to the classic Money Good! Napster Bad! meme.
Over the years, Metallica has tried to do more to “embrace” the internet, but almost every time, fans jump up to remind them about what assholes they were towards the early internet experience.
And that brings us around to Friday evening, when Metallica was set to play a streamed “live” show to kick off BlizzCon (an event for video game company Blizzard). The event was streamed live on Twitch, which has had some copyright problems of late. It appears that as Metallica was playing, and the Twitch Gaming channel was streaming the concert, someone realized that there might be a copyright problem. As first called out by Rod Breslau, the channel inserted 8-bit folks music over Metallica’s live performance to avoid a situation that, uh, Metallica might sue over.
the current state of Twitch: the official Twitch Gaming channel cut off the live Metallica concert to play 8bit folk music to avoid DMCA pic.twitter.com/sCn56So8Ee
You can see a fun YouTube video of when the switch happens and it’s as glorious as it is stupid:
Watching Lars “rock out” to 8-bit folk music… is really quite something:
As plenty of people pointed out, Metallica and Lars are a big part of the reason that the internet is so, well, twitchy, in trying to take down copyright-covered content these days, so this bit of idiocy demonstrating just how broken copyright is couldn’t have happened to a more deserving group.
Last year we wrote about what we called the “dumbest gotcha story of the week,” involving the music annotation site Genius claiming that Google had “stolen” its lyrics. The only interesting thing about the story is that Genius had tried to effectively watermark its version of the lyrics by using some smart apostrophes and some regular apostrophes. However, as we noted, the evidence that Google “copied” Genius just wasn’t supported by the facts — and even if they had copied Genius, it’s unclear how that would violate any law. You can read that post for more details, but the simple fact is that a bunch of sites all license lyrics and have permission for them — and many use a third party such as LyricFind to supply the lyrics. But how those lyrics are created is… however possible. Even as sites “license” lyrics from publishing companies, those companies themselves don’t have their own lyrics. So basically lyric databases are created however possible — including having people jot down what they think lyrics are… or by copying other sites that are doing the same. And there’s nothing illegal about any of that.
And yet, for reasons that are beyond me, last December, Genius sued both Google and LyricFind over this. As we noted at the time, it was one of the dumbest lawsuits we’d seen in a while, and it would easily fail. And that is exactly what has happened. The lawsuit was removed from NY state court to federal court, and while Genius tried to send it back, the judge not only rejected that request, but she dismissed the entire lawsuit for failure to state a claim (that’s legal talk for “wtf are you even suing over, that doesn’t violate any law, go home.”)
There were a bunch of issues that Genius tried to raise, but all of them were pretend issues. As we noted all along, Genius has no copyright interest in the lyrics (indeed, it has to license them too — and, amusingly, in its early days, songwriters accused Genius of being a “pirate” site for not licensing those lyrics…). And so Genius tried to make a bunch of claims without arguing any copyright interest, but these were all really attempted copyright claims in disguise, and the court rightly pointed out that copyright pre-empts all of them.
Breach of contract? Nah, copyright pre-empt’s that:
Plaintiff?s breach of contract claims are nothing more than claims seeking to enforce the copyright owners? exclusive rights to protection from unauthorized reproduction of the lyrics and are therefore preempted. The parties agree that Plaintiff is not the owner of the copyrights to any of the lyrics it transcribes, and Plaintiff concedes that it licenses lyrics from the copyright owners…. Although Plaintiff describes the rights it seeks to enforce as ?broader and different than the exclusive right existing under the Copyright Act,? based on ?the substantial investment of time and labor by [Plaintiff] in a competitive market,? … and asserts breach of contract claims based on alleged violations of Plaintiff?s Terms of Service, Plaintiff?s own ability to transcribe and display the lyrics on its website arises from the licensing rights Plaintiff has in the lyrics….
[….]
Plaintiff?s argument is, in essence, that it has created a derivative work of the original lyrics in applying its own labor and resources to transcribe the lyrics, and thus, retains some ownership over and has rights in the transcriptions distinct from the exclusive rights of the copyright owners…. This argument is consistent with the treatment of derivative works under federal copyright law….
Plaintiff likely makes this argument without explicitly referring to the lyrics transcriptions as derivative works because the case law is clear that only the original copyright owner has exclusive rights to authorize derivative works….
Even accepting the argument that Plaintiff has added a separate and distinct value to the lyrics by transcribing them such that the lyrics are essentially derivative works, because Plaintiff does not allege that it received an assignment of the copyright owners? rights in the lyrics displayed on its website, Plaintiff?s claim is preempted by the Copyright Act because, at its core, it is a claim that Defendants created an unauthorized reproduction of Plaintiff?s derivative work, which is itself conduct that violates an exclusive right of the copyright owner under federal copyright law.
Unjust enrichment? Yup. Pre-empted by copyright law. In that case, Genius had pointed to one case that showed an unjust enrichment claim avoided pre-emption, but the court points out that that case was quite different.
While the court in CVD Equipment Corp. listed deception as an extra element sufficient to avoid preemption, the Court finds, based both on the facts in that case and the Second Circuit decisions cited in support, that the decision in CVD Equipment Corp. was based on the defendant?s alleged abuse of a fiduciary relationship, which is not present in this case. The factual allegations in CVD Equipment Corp., described above, clearly supported a claim that the defendants had unjustly enriched themselves by abusing a fiduciary relationship…. Moreover, the two Second Circuit cases the district court relied on in making its ruling further support the conclusion that the basis for the court?s holding was not that the plaintiffs had alleged ?deception,? but rather, that they had alleged the abuse of fiduciary relationships. In Kregos, cited by the court in CVD Equipment Corp., in finding that the plaintiff?s unfair competition claim was preempted, the Second Circuit stated that ?unfair-competition claims based upon breaches of confidential relationships, breaches of fiduciary duties and trade secrets have been held to satisfy the extra-element test and avoid § 301 preclusion.? … Similarly, in Computer Associates International, Inc., also cited by the court in CVD Equipment Corp., the Second Circuit noted that the ?state law rights that . . . satisfy the extra element test, and thus are not preempted by section 301 . . . include unfair competition claims based upon breaches of confidential relationships, breaches of fiduciary duties and trade secrets.?… In contrast, in this case, Plaintiff has not alleged that Defendants abused a confidential or fiduciary relationship.
Unfair competition? Sorry, nope. Pre-empted by copyright.
Plaintiff?s unfair competition claims are preempted by the Copyright Act. Plaintiff alleges that Defendants ?misappropriated content from [Plaintiff?s] website,?… in ?an unjustifiable attempt to profit from [Plaintiff?s] expenditure of time, labor and talent in maintaining its service,?… Plaintiff has not alleged that Defendants breached any fiduciary duty or confidential relationship, or that Defendants misappropriated Plaintiff?s trade secrets. Instead, Plaintiff?s claims are precisely the type of misappropriation claims that courts have consistently held are preempted by the Copyright Act….
Plaintiff?s claims are essentially ?reverse passing off? claims, as Plaintiff alleges that Defendants copied Plaintiff?s work product ? song lyrics displayed on its website ? and attempted to pass them off as either, in LyricFind?s case, its own work product or, in Google?s case, either its own work product or work product it was licensed to display…. Unfair competition claims involving allegations of reverse passing off are preempted by the Copyright Act.
How about “bad faith” claims under NY state law? Here, we see the zombie of the never ending SCO v. IBM case, which Genius sought to use in support. But, there’s a problem. That case was in the 10th Circuit. This case is in the 2nd.
The Tenth Circuit?s decision in SCO Group, Inc. is directly contradicted by caselaw in this Circuit, discussed above, finding that New York unfair competition claims alleging misappropriation of copyrightable works are preempted by the Copyright Act. Regardless of how the Tenth Circuit interpreted the ?bad faith? element of New York unfair competition claims, in this Circuit, ?bad faith? on its own is not sufficient to avoid preemption ? if it were, unfair competition claims under New York law would never be preempted.
Unfairness under California law? Pre-empted. Easily.
The Second Circuit has held that ?[n]o matter how ?unfair?? a defendant?s alleged conduct is, ?such unfairness alone is immaterial to a determination whether a cause of action has been preempted by the Copyright Act.?
Deceptive, unethical, and immoral conduct? By this point you can feel the judge getting bored of having to repeat herself.
Courts in this Circuit have found that deception is not an extra element that saves an unfair competition claim from preemption.
And thus, the case is tossed completely.
Given that the Court finds that all of Plaintiff?s state law claims are preempted by the Copyright Act, and Plaintiff has not asserted any federal law claims, the Court dismisses the Complaint for failure to state a claim.
Don’t try to pretend that you have a pseudo copyright in content you have no copyright rights over.
Yet another reminder that copyright is really, really broken. As you may have seen, there have been a few viral videos making the rounds of people locked down in apartment buildings deciding to hold impromptu music performances from balconies. When the first of these came out, I had joked that it would only be a matter of time until some music collection society called these an unlicensed public performance and demanded royalty payments. Thankfully, that has not happened, though in Spain, a copyright professor did tell a journalist that those singing from the balconies should first get a license (relying on Google translate here…):
Singing songs from the window or the balconies on the terraces, as seen in Spanish houses these days during the confinement due to the coronavirus pandemic, could violate the intellectual property rights of their authors. This is collected by information from Europa Press. In it, Pablo Velasco Quintana, an expert in intellectual property at the CEU San Pablo University, it is necessary to “request authorization” for a “communication to the public”, whether or not it is “profitable” , since, according to the law, the author is the only one that it can “authorize or prohibit” “reproduction”, “transformation” and “communication”.
Thankfully, the Spanish collection society SGAE (which has a bit of a history of corruption) felt the need to come out and clarify that no license was necessary and that it was actually encouraging people to sing in these trying times:
The General Society of Authors and Editors (SGAE) encourages in a statement to the entire population to continue singing from the balconies, from the windows, or from any place where confinement allows it during the state of Alarm to stop the spread of the coronavirus.
“Because singing has no cost, but it is invaluable, especially for those who directly suffer from the virus or for those who fight on the front line against its consequences,” he says.
According to the SGAE, the songs that, every night, unite millions of citizens are part of the collective memory of the Spanish and function as a link that reinforces the state of mind.
I’m glad that SGAE seems to recognize that now is not the time to nickel and dime people on lockdown in their homes for entertaining their neighbors with songs — but just the fact that some experts in the field worried about this possibility, likely means that there were chilling effects from copyright, and some chose to avoid this form of social distance bonding among their neighbors.
While it’s good that it’s been made clear no license is needed, the fact that people even thought about it is a real condemnation of just how terrible copyright maximalism is. It has infected peoples’ brains to the point that they were uncomfortable with the idea of singing in even these conditions, and that’s truly messed up.
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:
In order to avoid legal complications, I?ve gone down the rabbit hole searching through volumes of short stories in the public domain for appropriate content for families and have come up empty.
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:
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.
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.
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.
