WIPO Didn't Want The Pirate Party To Observe Its Efforts, But Happy To Include A Group Whose Mission Is To Battle Space Lizards

Copyright

from the say-what? dept

You may recall five years ago how WIPO — the World Intellectual Property Organization, a UN body that is famous for its maximalist and expansionary approach to intellectual property — delayed and then rejected the Pirate Parties International request to become an “observer.” As we noted, the “observer” process is more or less a formality, and it’s pretty common to see everyone who applies get approved. So it was a bit odd that WIPO rejected the Pirates.

And it’s even odder when you consider just who WIPO allowed in this year. As noted by Intellectual Property Watch, one of the organizations whose application was rubber-stamped this year to become a WIPO observer is that of the generically named “IP Centre.” However, that group’s website at the time that it was granted observer status claimed the following as its mission:

Our mission

As a global conspiracy investigation institution with a pioneering awareness raising model, our mission is to create an environment that brings together open-minded people, cultures and ideas from around the world, in order to free individuals and organizations from space lizards? control.

Let me just repeat that again. WIPO — which rejected the application of a political party for whom intellectual property is a central plank in its platform — instead approved a group whose stated mission on its website was to free us from “space lizards’ control.”.

Space. Lizards.

The webpage has since been changed to some boring boilerplate, but here’s what it looked like before:

It’s entirely unclear what happened here, though a charitable explanation is someone posted some jokey text when the website was first being designed, and no one ever checked out the website to see what was there (or no one read enough to care) until this whole situation happened, at which time the organization got a bit more serious about its mission. However, it still does raise some questions about the due diligence of WIPO folks.

Though, conceivably, perhaps WIPO is just too busy fighting space lizards to read that carefully.

Filed Under: copyright, space lizards, wipo

New Organization Formed In South Africa To Promote The Rights Of Creators And Support Intelligent Copyright Reform

Copyright

from the fair-use-is-only-fair dept

Over the years, Techdirt has written about some pretty bad stuff happening in South Africa on the copyright front. For example, there was the Business Software Alliance using made-up figures in an attempt to revise copyright law in its favor. The South African music rights organization tried to put public domain works under copyright. And — most insane of all — the South African recording industry association ran a stupid “anti-piracy” campaign called “Shoot the Pirate”, which resulted in actual violence. So it makes a pleasant change to report on some good news from the country. A new organization of creators has been formed to press for a more balanced copyright system in South Africa. They call themselves ReCreate, although apparently the group has no connection with the similar US organization Re:Create. Here are the South African ReCreate’s basic principles:

ReCreate exists to promote the interests of South African creatives with regards to copyright legislation.

As much as we are creators, we are users of existing cultural products. Currently our work can be blocked through censorship by those who claim to own our culture. Moreover we often do not not own the work we create. And many of us have been disadvantaged by an exploitative system which fails to pay us for our work.

Growing the digital economy requires innovation. South Africa is at a disadvantage to other countries with flexible copyright laws that support creativity.

We call on Government to include in the ongoing copyright reform three key issues to enable us to create the next generation of South African content for the world.

An update about the South African copyright reform currently underway can be found on the infojustice.org site. There’s also an opinion piece in South Africa’s Mail & Guardian written by some of ReCreate’s founders, in which they explain some of the problems they face under current copyright legislation, and the fair use rights they need to help them produce new works in the digital world:

Parody and satire

Incidental use of background content

Use of works in public places

Digital archival

Creation of educational works

Non expressives uses on the Internet, including indexing, data mining and search

Re-mixing, transforming and re-interpreting

Creation of accessible copies for people with disabilities

Adaptation to future technology

However, according to another post on infojustice.org, the South African Department of Arts and Culture has come out against introducing fair use, claiming:

Fair use by its nature is open-ended and it creates uncertainties in the management of rights. If adopted, this model will permit uncontrollable and unreasonable access to copyright materials resulting into reduction of real income for copyright owners.

Although it’s disappointing to see this kind of tired old FUD being spread, it’s great to see artists standing up for themselves like this in South Africa. For too long, the copyright companies have claimed to represents artists while doing precious little to help them create new works or earn a decent living. The founding of ReCreate is a hopeful sign that things may be about to change.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: archival, copyright, creativity, fair use, innovation, parody, recreate, remix, satire, south africa

The Monkey Selfie Lawsuit Will Never, Ever Die: Appeals Court Judge Wants A Do Over

Copyright

from the fucking-9th-circuit dept

Last fall, I joked (no, really, it was a fucking joke!) that the monkey selfie saga “will never, ever be over.” I stand by that prediction, even if Cathy Gellis wrote here last month with what she falsely believed was “the last update from the monkey selfie case”. She wrote that because the 9th Circuit — after rejecting a problematic settlement between PETA and photographer David Slater because Naruto, the apparent monkey in the middle had clearly not approved of any settlement — had clearly and decisively rejected PETA’s ridiculous argument. The court found no reason to believe that PETA (being a “next friend” of the monkey) should get the monkey’s copyright for taking the selfie. The court said — as we’ve said from the very beginning — that monkeys don’t get copyright.

Several provisions of the Copyright Act also persuade us against the conclusion that animals have statutory standing to sue under the Copyright Act. See Davis v. Mich. Dep?t of Treasury, 489 U.S. 803, 809 (1989) (?It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.?). For example, the ?children? of an ?author,? ?whether legitimate or not,? can inherit certain rights under the Copyright Act. See 17 U.S.C. §§ 101, 201, 203, 304. Also, an author?s ?widow or widower owns the author?s entire termination interest unless there are any surviving children or grandchildren of the author, in which case the widow or widower owns one-half of the author?s interest.? Id. § 203(a)(2)(A). The terms ?children,? ?grandchildren,? ?legitimate,? ?widow,? and ?widower? all imply humanity and necessarily exclude animals that do not marry and do not have heirs entitled to property by law. Based on this court?s decision in Cetacean and the text of the Copyright Act as a whole, the district court did not err in concluding that Naruto?and, more broadly, animals other than humans?lack statutory standing to sue under the Copyright Act.

And thus, the case was over. Done. Over. Complete. Closed. But, no. This is the monkey selfie case and it will never, ever end.

On Friday, the case came back to life. The court declared that another judge in the 9th Circuit is requesting that the court rehear the case en banc. This means that rather than just a typical 3 judge panel, an 11 judge panel would rehear the case (in other circuits, en banc often means all the judges, but the 9th is so big, they just go with 11). Often one of the parties in a case will ask for a case to be reheard en banc. In this case, it was a judge. This happens, though rarely. This doesn’t mean the case will get heard again. There needs to be a vote. But, in the meantime, the court is asking the various parties to file briefs on whether or not the case should be reheard.

We’re unlikely to find out who made this request, but it’s worrisome that there’s a judge who thinks the case should be reheard. It certainly suggests there’s a judge who believes animals can get copyright. Indeed, it suggests that there may be a judge in the 9th Circuit who believes the important Cetacean case — which was crucial to this ruling in that it says that without it being expressly noted by Congress, animals do not get the right to sue in court — may not be good law.

And while that may not seem like a big deal it could be a very big deal — and not just for the likes of PETA deciding to go around suing everyone on behalf of animals, but because a change in such a case might impact a totally different, but increasingly important area of law: whether works created by artificial intelligence will get covered by copyright law.

Hopefully, the 9th circuit is not taken in by this one judge and decides not to rehear the case en banc — or if, monkeys forbid, that it does decide to continue this monkey business, it upholds the original ruling by the appeals court. Either way, it feels like this case is cursed. The curse of the monkey selfie.

Filed Under: 9th circuit, copyright, david slater, en banc, monkey selfie, naruto

Forget The GDPR, The EU's New Copyright Proposal Will Be A Complete And Utter Disaster For The Internet

Copyright

from the wake-up-folks dept

Today is GDPR day, and lots of people are waking up to a world in which EU regulations are having a widespread (and not always positive) impact on how the internet works. As we’ve detailed over the past couple of years, while there are many good ideas in the GDPR, there are also many ridiculously bad ones, combined with poorly thought out drafting, and we’re already seeing some of the fallout from that. But, believe it or not, there’s an even larger threat from the EU looming, and it’s received precious little attention: the EU’s new copyright reform proposal is set to be voted on next month and it will truly be disastrous to the internet. As it currently stands, it will require widespread censorship in the form of mandatory filtering and also link taxes that have already been shown to be harmful to news.

European Parliament member Julia Reda is sounding the alarm and asking people to speak out. As she notes, many of the folks now freaking out about the GDPR wish they got involved over two years ago when it was being debated. And if you’re concerned about how problematic this new copyright reform will be for the internet, now is the time to speak out (yes, even if you’re not in the EU):

On the topic of copyright, you NOW have the chance to have an influence ? a chance that will be long lost in two years, when we?ll all be ?suddenly? faced with the challenge of having to implement upload filters and the ?link tax? ? or running into new limits on what we can do using the web services we rely on.

In stark contrast to the GDPR, experts near-unanimously agree that the copyright reform law, as it stands now, is really bad. Where in the case of the GDPR the EU institutions pushed through many changes against the concerted lobbying efforts of big business interests, in the copyright reform they are about to give them exactly what they want.

Parliament and Council have had over a year and a half to fix the glaring flaws of the Commission proposal ? but despite their growing complexity, the latest drafts of both institutions fail to meet basic standards of workability and proportionality

Reda’s post goes on to detail the many, many problems of the current copyright proposal — in which merely linking to a news site may require paying money (link tax) and where concerns about how that might negatively impact the entire internet are being woefully ignored. Perhaps even worse is the mandatory filtering idea. The big record labels and movie studios have, of course, been pushing for this kind of thing for years to get back at Google (mainly) and Facebook (a little bit). But, here’s the thing: both Google and Facebook already have those filters (and spent tens of millions of dollars on them). This kind of law fucks over everyone else.

And, it’s actually even worse than a mandatory filtering rule — because the EU realized that such a rule would violate other EU laws. So, instead, it decided to hack away at intermediary liability protections to make mandatory filtering necessary:

Make platforms directly liable for all copyright infringements by their users, and then offer that they can avoid that unreasonable liability if they can show they?ve done everything in their power to prevent copyrighted content from appearing online ? namely, by deploying upload filters (Article 13, paragraph 4). Which remain totally optional, of course! Wink, wink, nudge, nudge.

Tragically, the only remaining point of disagreement in Council is whether this proposal is bad enough, or should be made worse.

We’ve already spent years explaining how this will lead to widespread censorship online, but it will also be a disaster for basically all of the non-Google/Facebook platforms out there. Mid-size companies like Github have already talked about how this could effectively destroy its ability to operate, and lots of other sites would be impacted as well. Any kind of forum site would be at serious risk. Reddit, Pinterest, Twitch, Imgur, WordPress, Medium, Vimeo. This would create massive liability for all of those sites, making it nearly impossible for many of them to function in the EU.

Reda notes that a new draft could make this situation even worse in noting that even having filters won’t be enough to avoid liability:

Mr Voss? latest draft expands the scope of the censorship machines proposal to all web platforms (a) whose purpose is to ?give access to copyrighted content uploaded by users? and which (b) ?optimise? that content. What counts as optimising? Among a long list of actions, we find that ?displaying? the uploads already makes platforms legally liable for any copyright infringement they may include (Recital 37a).

And in his version, web services can?t even avoid liability by implementing upload filters. To protect themselves from being sued, they would need to get licenses from all rightsholders that exist on the planet before allowing user uploads to go online, just in case the upload may contain (parts of) any of their works.

He also claims that checking every new user upload for whether it includes one of hundreds or thousands of specific copyrighted works somehow does not constitute ?general monitoring? (Recital 39), which would be forbidden ? now that?s some wishful lawmaking.

As Reda also points out, most of the EU member states appear to be supportive of these horrible ideas (or even pushing to make it worse). What now stands between this horrible law making a mess of the internet is just the EU Parliament which is currently scheduled to vote on this in late June (probably the 20th or 21st). If you are in the EU now is absolutely the time to speak up. If you’re outside the EU, it also would help to speak up and let the EU Parliament know that this is a horrible idea that will have significant problems for the wider internet, free speech and innovation.

Filed Under: axel voss, censorship, copyright, eu, eu parliament, intermediary liability, julia reda, link tax, mandatory filters

The Demise Of Copyright Toleration

Copyright

from the permissionland dept

In the Supreme Court oral argument (p. 12) of MGM Studios, Inc. v. Grokster, Ltd, Don Verrilli, attorney for the Recording Industry Association and other content owners, raised eyebrows:

“The record companies, my clients, have said, for some time now … that it’s perfectly lawful to take a CD that you’ve purchased, upload it onto your computer, put it onto your iPod.”

Counsel for these content owners seemed to be acknowledging, before our highest court, that if you copy a prerecorded song into a more convenient format strictly for your own use it is a fair use under Section 107 of the Copyright Act. But less than a year later they explained away the statement that the Court transcript had “attributed” to their attorney. In a filing with the Copyright Office in the 2006 round of use exemptions under the Digital Millennium Copyright Act, counsel for a group of content owners, including the RIAA, said (n.46, emphasis added):

“Nor does the fact that permission to make a copy in particular circumstances is often or even routinely granted, necessarily establish that the copying is a fair use when the copyright owner withholds that authorization. In this regard, the statement attributed to counsel for copyright owners in the MGM v. Grokster case is simply a statement about authorization, not about fair use.”

Although denying fair use, these content owners were acknowledging a larger truth about copyright, the Internet, and even the law in general: It works largely due to toleration. Not every case is clear; not every outcome can be enforced; and not every potential legal outcome can be endured. Instead, “grey area” conduct must be impliedly licensed, or at least tolerated.

Counsel then or now could not have cited a single court holding on whether the private, noncommercial recording of a song is a lawful fair use. Long before the Supreme Court in Sony Corp. of America v. Universal City Studios, Inc. said that video home recording from broadcasts as a fair use, the music industry could have pursued consumers for home audio recording from vinyl records. But the risk of losing and establishing a bad precedent was too great.

Toleration endured because fair use, and the practicalities of enforcement, had to be endured by content owners. They recognized that their own creative members also relied on fair use in adapting and building on the works of contemporaries as well as earlier generations. They also realized that offending consumers by suing them might not be a good idea – a reason (in addition to the possibility of losing) why the Sony plaintiffs dropped the individual consumer defendants they had originally named.

But one of the virtues of fair use is that it often points to directions that authorized users had failed to notice. And once “the street” has shown the way, the content owners cite the new genre as a form of “derivative work” – and seek to monetize it. The Supreme Court, in the course of protecting a parody of Pretty Woman in Campbell v. Acuff-Rose Music, Inc., left the door to this grey area wide open:

“The market for potential derivative uses includes only those that creators of original works would in general develop or license others to develop.”

Those with a stake in precedents still approach this door with caution. But the emergence of Internet search and tagging, social media, and troll lawyers has meant that the climate of toleration may be ending, as the door to grey areas is being forced closed.

• First came the patent trolls – plaintiffs who essentially buy the right to sue, with little to lose from any adverse precedent. They find, sue, and harass entrepreneurs, retailers and consumers, as leverage for settlements.

• Then came the copyright trolls – rights aggregators and their lawyers who find web and social media postings and links that were posted under assumptions of fair use, rights holder marketing encouragement, or toleration. Consumer defendants are accustomed to seeing such posts by rights holders themselves; they assume that any complaint about their own use must be spam.

• Classic copyright “troll” clients have been pornographers. But rights aggregators and their attorneys have now branched out to, and beyond, making deals with individual photographers and cartoonists who seek to further monetize their work. At least one has signed up major music publishers as clients and moved from harassing school and college marching bands and choirs to threatening symphony orchestras. They threaten to sue over commissioned or in-house arrangements as derivative works, in need of an additional license beyond blanket performance rights – a grey area long respected and tolerated by the music industry. (A strict interpretation of such a “right” would mean the end of academic and group member jazz arranging of copyrighted works.)

Now to apply the coup de grace to implied license and toleration comes the CASE Act – “Copyright Alternative in Small-Claims Enforcement Act of 2017 – H.R. 3945, before the House Judiciary Committee. It disregards grey areas and would destroy the toleration that has made copyright viable in the face of swiftly changing times and technologies. It would set up “commissioners” within the Copyright Office to rule on “small claims” cases without precedent or appeal on the merits to any court. Yet “statutory damages,” pursued at the discretion of the plaintiff, could still reach $30,000.

Techdirt recently reviewed here what a bad idea this bill is. It is also probably unconstitutional. But a larger issue is what such a law would say about copyright, and about grey areas and tolerance. It denies the existence and necessity of each. This may be the biggest reason why this bill should never become law.

Guest contributor Robert S. Schwartz practices law at Constantine Cannon LLP. The views expressed are his own.

Filed Under: case act, copyright, copyright toleration, fair use, permission, small claims

Copyright Being Used To Prevent Actress From Showing Her Own Demo Reel

Copyright

from the fair-use-guys dept

Lawyer Stephen Doniger seems to be going out of his way to file lawsuits that involve creative interpretations of copyright (and by “creative” I mean “wrong.”) You may recall that Doniger was the lawyer behind Playboy suing Boing Boing for copyright infringement for linking to an Imgur collection of Playboy centerfolds. That case went so poorly that the judge tossed it out in just two months. Before that, Doniger made a name for himself (I kid you not) being a fabric copyright troll, filing loads of lawsuits against companies offering similar designs on fabric. He’s also jumped in on the whole situation created by the “Blurred Lines” mess by filing a bunch of “sounds alike” copyright cases.

It’s almost as if he’s filing all sorts of nutty copyright cases just to demonstrate for us just how ridiculous modern copyright law has become, and how far from its purpose it has strayed. Indeed, that’s about the only explanation I can find for a new filing by Doniger, as noted by the Hollywood Reporter, in which Doniger, representing director Robin Bain is suing actress Jessica Haid for using a clip of the film, Nowhereland in her own demo reel.

In short, Bain claims that Haid asked for permission to use clips in her demo reel and Bain refused (nice of him). She then got a copy of the film and gave it to another company to include it in her demo reel. Bain is now suing, claiming it’s an “unauthorized derivative work.” Indeed, the lawsuit claims that the clips in the demo reel “included a significant amount of unreleased footage from The Film, which taken together, encompassed the heart of The Film, as well as revealed the ending to The Film.”

The claim that this uses “the heart” of the work is an attempt to get around a fair use claim and a reference to the famed Harper Row v. Nation Enterprises case. Looking over the fair use factors, it seems hard to see how this isn’t fair use. It’s clearly transformative. The use is quite different than the movie itself — it’s a small clip used to advertise the actress, not to show the film. Despite the claims of this being “the heart” of the film, it’s still just clips for a demo reel, rather than the full film. And, finally the impact on the market is going to be nil. Or, if anything, it might encourage people to see the full film (unless the film sucks, of course).

Either way, I can’t imagine that this is what the framers of the Constitution imagined when they were putting in place the copyright clause. How the hell does it “promote the progress of science” to have a director sue an actress for advertising her acting ability? But, as yet another example of just how ridiculous copyright law is these days, it works perfectly. So thanks Stephen Doniger for adding to the list of examples of ridiculous copyright lawsuits.

Filed Under: actress, copyright, demo reel, fair use, jessica haid, nowhereland, robin bain, stephen doniger

HBO Wins Stupid Copyright, Trademark Lawsuit Brought By Graffiti Artist Over 2 Seconds Of Background Scenery

Copyright

from the tag-your-it dept

Whenever a company like HBO gets targeted with a lawsuit over intellectual property concerns, you might think we find it tempting to jump all over them in each and every case. After all, HBO has the distinction of being notably horrible when it comes to enforcing its own IP, from shutting down viewing parties, to offering streaming options, to abusing the the DMCA process just to keep spoilers from existing, as though that could possibly work.

But the truth is the fun we have in cases where these types are found to be in legal trouble over intellectual property only extends to when that legal trouble is in some way warranted. When its not, we find that there is a helpful other party on which to heap our ire. That’s the case in a lawsuit HBO recently won against graffiti artist Itoffee R. Gayle, who complained about his work appearing in a scene of the HBO show Vinyl. The court ruled that HBO’s use was de minimis, or so fleeting so as to cause no injury and therefore not be actionable.

But just how fleeting was HBO’s use? Well…

One episode of the show included a scene of a woman walking down a street in New York City where she passes by a dumpster tagged with graffiti that says “art we all.” The graffiti artist, Itoffee R. Gayle, claims that this depiction violated his copyright and trademark rights. According to his complaint, HBO never tried to contact him or license the graffiti. Of course, as the court agreed, HBO didn’t actually need to try to contact Gayle and no license fee was needed because not all copying is unlawful.

Looking at the use of the graffiti art in the episode, the court notes that Gayle’s claims “are premised on a fleeting shot of barely visible graffiti painted on what appears to be a dumpster in the background of a single scene” and that the art appears for no more than two to three seconds. Two to three seconds. Of an entire episode. Yup, sounds pretty de minimis to me. The court goes on, noting that the graffiti is not pictured by itself or close-up, plays no role in the plot, and “is hard enough to notice when the video is paused at the critical moment. It is next to impossible to notice when viewing the episode in real time.” The judge seems pretty annoyed by the copyright infringement claim, noting that “Gayle’s [claims] border on frivolous.”

I’ll say this: the court showed far more patience and restraint than an Honorable Judge Geigner would have to Gayle. To waste the court’s time with an argument over both copyright and trademark rights dealing with the background scenery of 2 seconds worth of film is so plainly absurd that anger is the only proper response. This was a clear money-grab and, frankly, one based on a premise of silly. It only takes a moment of backing up and thinking about what motivation HBO had here in using this scenery in this shot to know that nothing untoward was done with Gayle’s art. It wasn’t a theme, it wasn’t featured, it wasn’t referenced beyond barely being in the shot. It was entirely incidental.

The trademark claim fell for the same reason.

While Gayle attempts to argue that HBO intentionally picked this particular piece of graffiti art to use in the background, the court concludes, “HBO’s motive in depicting the graffiti is irrelevant to the de minimis inquiry.” The copying is not actionable, because its use was so small, even if there was a thematic reason for it. For similar reasons, the court also rejects Gayle’s trademark claims.

It’s long past time that courts start issuing some punishment to those that gum up the court system with this sort of bullshit. If nothing else, putting me in the corner of HBO deserves some sort of punitive action.

Filed Under: bacground, copyright, graffiti, itoffee gayle, trademark
Companies: hbo

How The Recording Industry Hid Its Latest Attempt To Expand Copyright (And Why You Should Call Your Senator To Stop It)

Copyright

from the bad-ideas dept

Last month, we wrote about the problems of the CLASSICS Act that the House was voting on. There’s a lot of background (much of it included in that post), that is not worth repeating, but the very short version is that sound recordings from before 1972 are treated somewhat differently under copyright law than songs recorded since February of 1972. Specifically, pre-1972 sound recordings are not covered by federal copyright law, but by a weird batch of state laws. Due to a bunch of shenanigans, many of those works will not be put into the public domain until 2067, even if by any other measure they should be in the public domain. The RIAA has always liked this aspect of pre-1972 songs. However, there are other aspects of pre-1972 songs that the RIAA does not like, and that’s mainly that the lack of federal copyright coverage means that those works (mostly) don’t get any performance rights, since most state laws didn’t have such a concept. That’s money the RIAA feels is being left on the table.

One way to handle this would be to just federalize the copyright on pre-1972 works and put all works on an equal footing. Easy, right? But that’s not what the CLASSICS Act does. Instead, it just modernizes the parts of copyright for those works that help extract more money from people (such as adding in performance rights) while refusing to bring with it the parts of copyright law that protect the public — including the timeline for things moving into the public domain.

Larry Lessig has a piece over at Wired where he explains how this is really just the latest attempt at copyright extension. Earlier this year, we had noted (happily!) that it appeared that the usual crew of copyright maximalists had appeared to give in, saying they had no intention to push for any sort of copyright term extension this year, meaning that for the first time in decades in the US, some works may actually enter the public domain on January 1st next year. And while the CLASSICS Act isn’t a straight-up copyright term extension, it is a form of copyright expansion on old works, done for no other purpose than to give the copyright holders more ways to extract money, without any corresponding public benefit. As Lessig notes, this is explicitly a welfare system for musicians:

That this statute has nothing to do with the constitutional purpose of ?promot[ing] Progress? is clear from its very title. The ?Compensating Legacy Artists for their Songs, Service, and Important Contributions to Society Act? (or CLASSICS) is as blatant a gift without any public return as is conceivable. And it’s not just a gift through cash; it’s a gift through a monopoly regulation of speech. Archives with recordings of music from the 1930s or 1940s would now have to clear permission before streaming their musical content even if the underlying work was in the public domain.

Yet there is no registry of these owners anywhere. And while massive digital suppliers, such as Apple Music and Spotify, could probably afford to carry the burden, no public or non-profit website could even begin to bear the cost of assuring they were not committing a crime. The act doesn?t harmonize American law with international law. Indeed, it creates more disharmony. No other jurisdiction creates a similar right anywhere. The act is simply a gift, paid for by further weakening the ability of archivists to keep our culture accessible. That?s why more than 40 professors of intellectual property of all political stripes signed a letter this week asking Congress to reject the CLASSICS Act.

Now that the bill is in the Senate, EFF is asking people to contact their Senators telling them to vote no on this bill.

Now, I should note that I’ve seen some recording industry lobbyists mocking Lessig’s piece, claiming that how could he be against supporting musicians. This, of course, is the whole setup of this bill. It’s designed — like so many copyright expansions in the past — to make it hard for people to question, because, really, who doesn’t want to support the content creators we like? But that ignores the other side of this equation. Copyright is designed to benefit the public. The whole setup is to give an exclusivity to content creators for a limited time in order to give them the incentive to create.

For EVERY SINGLE WORK that would be impacted by this bill, that incentive worked. It worked decades and decades ago. Those recordings were all created prior to 1972. So why do they now need more incentive for the works that were already created? And why, if we’re giving them more incentive, does the public not get anything back in return? That’s the hidden part that the lobbyists and think tank shills for the recording industry are hoping you’ll ignore. The “expansion” here is at the expense of the public. And it’s a big expense. For no benefit at all. The copyright system was an incentive system for creation, in the recognition that it would then help the public get access to content. But the CLASSICS Act flips that over. It takes away from the public and provides no new incentives to anyone.

Instead, it’s just a welfare bill for musicians. And, hey, Congress can set up a welfare system for musicians if it wants to, but it should be described as such and debated as such. Instead, this is being positioned very differently, because of course that’s how the RIAA plays things.

Filed Under: classics act, copyright, copyright extension, music, performance rights, pre-1972 sound recordings, public domain

Copyright Once Again Hiding Important Cultural Artifacts

Copyright

from the copyright-getting-in-the-way-again dept

Last week on NPR’s Fresh Air, I first heard about the publication of the book Barracoon, which sounds fascinating — as is the backstory behind the book. The book was actually written in 1931, based on interviews anthropologist Zora Neale Hurston did with then 86-year-old Cudjo Lewis, then the last known living person to have been brought to America from Africa on a slave ship. In the Fresh Air piece, Maureen Corrigan described the decades long delay in publishing the book this way:

Hurston’s manuscript has a complicated backstory, but the gist is that the book generated little interest back then from publishers. Only Viking Press was willing to publish it with the stipulation that Hurston change Cudjo’s voice, transforming his dialect speech into the King’s English. Hurston refused and Barracoon languished, known only to scholars until now.

However, over at the Washington Post, Ted Genoways tells a more detailed story that pins the lack of publication on a key factor of copyright law blocking the publication. It turns out that Genoways had come across this work decades ago and tried to get it published back then. But… copyright got in the way. Specifically, he was unable to establish clearly whether or not the work was in the public domain.

The typescript was thin, just over a hundred pages, with a few emendations and additions in Hurston?s handwriting, but it seemed complete and worthy of note. I looked into getting it published ? but the rights to the work were unclear. Had the writing been conducted as part of Hurston?s fieldwork for the Federal Writers? Project ? making it a government work-for-hire and public domain? Or was it a separate literary work controlled by her estate? No one seemed to know, and no one was too interested in finding out. Unable to get answers, I eventually gave up on the effort.

As Genoways notes, under any reasonable copyright regime — including the copyright regime that was in place at the time Hurston wrote the book — the book should have gone into the public domain long ago. But, of course, as we’ve detailed many times over the years, rather than enable that culture to reach the masses, Disney had to protect its mouse (which, as Larry Lessig detailed years ago, Disney created by borrowing heavily from copyright-protected works).

It?s mostly due to the Walt Disney Co.?s efforts to protect ownership of a certain cartoon mouse. Over the years, the company has successfully worked to extend copyright restrictions far beyond the limits ever intended by the original authors of America?s intellectual property laws. Under the original Copyright Act of 1790, a work could be protected for 14 years, renewable for another 14-year term if the work?s author was still alive. In time, the maximum copyright grew from 28 years to 56 years and then to 75 years. In 1998, Sonny Bono championed an extension that would protect works created after 1978 for 70 years after the death of the author and the copyright of works created after 1922 to as long as 120 years.

As Genoways notes, it’s surely no coincidence that the focus on Sonny Bono’s copyright extension was to cover works created after 1922. The Walt Disney company was founded in 1923. However, as he notes, this is preventing all sorts of cultural works from reaching the public:

Here, Hurston is the rule rather than the exception. I have a file that I?ve kept over the years of significant unpublished works by well-known writers from the era: William Faulkner, Langston Hughes, William Carlos Williams, Hart Crane, Sherwood Anderson and Weldon Kees, among others. The works aren?t really ?lost,? of course, but they are tied up in a legal limbo. Because of the literary reputations of those writers, their unpublished works will eventually see the light of day ? whenever their heirs decide that the royalties are spreading a little too thin and there?s money to be made from new works. But other important writers who are little-known or unknown will remain so because they don?t have easily identifiable heirs ? or, worse, because self-interested, or even uninterested executors, control their estates.

He also goes into detail on the works of the poet Lola Ridge, whose work was celebrated, but much of it kept from publication. Some works fell into the public domain and were re-released, but there are still multiple volumes tied up by copyright that cannot be released.

And lest you think this is a small problem, I’ll point again to the research of Paul Heald, who has documented the giant hole in our culture created by lengthy copyright terms. Public domain works published prior to 1923 are available. Works in the last few years tends to remain available. Works from the many, many, many decades in between? Not so much:

Every time I see that image again, I am dismayed about what it says about our culture, and how little supporters of our existing copyright system seem to care about what copyright is doing to our culture. Supporters of the existing system regularly exclaim how they are the ones who support culture and creators with their views on extensive copyright protections, yet they run away and hide when people point out things like this, where copyright gets in the way of culture, locks it up and (unfortunately) sometimes throws away the key completely. As Genoways concludes:

Copyright laws rewritten by major corporations to preserve income from nearly century-old creations have all but erased a generation of less famous writers and unknown works by well-known writers. It is an effect that extends the life span of biases that have long silenced female writers, minority writers and working-class writers. ?Barracoon,? to return to the original example, was rejected for publication in 1931, because it was deemed too vernacular by Hurston?s editor. Current copyright law unintentionally conspired to unnaturally extend the duration of that wrongheaded judgment for decades. That is why I bridle at the description of works like ?Barracoon? as ?lost.? They are not lost ? they have always been here ? but they have repeatedly encountered power structures that block their publication. It?s time for that to change.

Copyright is — according to our Constitution — “to promote the progress of science.” It is difficult to see how locking up a book like Barracoon for all these decades could possibly be seen as accomplishing that purpose.

Filed Under: barracoon, copyright, culture, history, ted genoways, zora neale hurston

Minnesota Judges Refuse To Unmask Defendants For Copyright Troll Strike 3

Copyright

from the about-time dept

With copyright trolling a business model in full force across the world, we’ve noted that there has finally started to be some pushback against these tactics. In Europe, both courts and ISPs have begun wising up to the notion that IP addresses are an incomplete and faulty piece of “evidence” at best, with both government and industry also finally beginning to question just where user privacy should fit into all of this. In America, unfortunately, copyright trolls have all too often been able to unmask customers through ISPs based on court orders pretty much at will. Strike 3 Holdings is one such troll, with the company being partially responsible for a number of piracy lawsuits shooting out of the gate in 2018 at record speed.

And, yet, it appears that there might finally be some pushback coming to the US too, as two judges in Minnesota have now refused to order ISPs to give up customer information to Strike 3.

Late last month, Magistrate Judge Franklin Noel denied such a discovery motion. As a result, Strike 3 is not allowed to ask the ISP, Comcast in this case, for the personal details of the account holder associated with the IP-address.

According to Judge Noel, these cases present a conflict between the copyright protections of the DMCA on the one hand and the privacy rights of the public as set out in the Communications Act. Here, the scale tips in the favour of the latter.

Frankly, this reasoning should be plainly obvious. A copyright holder marching to an ISP with an IP address that does not pertain to an individual ought not be able to unmask that individual using such faulty evidence. It’s long past time that the courts wise up to this and begin taking seriously the rights and interests of the public to not have private third party companies be able to associate them with their online activity.

But this wasn’t a one-off. Another court looked at Noel’s ruling and decided it was sound.

Last week Magistrate Judge David Schultz cited the ruling in two similar cases, also filed by Strike 3. Again, the subpoena requests were denied to secure the privacy of the alleged BitTorrent pirates.

“From this Court’s perspective there are obvious tensions between DMCA, the Communications Act, and Federal Rule of Civil Procedure 45,” Schultz’s orders read.

“The Court is not unsympathetic to Plaintiff’s need to discover the actual identity of the infringer of its copyright; however, the discovery sought by Plaintiff through a Rule 45 subpoena directly collides with federal privacy protections.”

If this becomes a trend, what will be most interesting about it is that nothing in the laws in question has changed. Such a trend would represent instead an evolution of legal thought by judges on the practices of copyright trolls. It may also represent better informed defendants and ISPs that are aware of how shitty all of this is and also more aware of their respective rights in the law.

To be sure, a couple of rulings is no cause to rest easy. The vast majority of copyright trolling efforts succeed in at least getting this sort of customer information. Still, hopefully other courts will take notice of these rulings and agree that they should not be rubberstamp stops on the way to violating consumer privacy.

Filed Under: copyright, copyright trolling, david schultz, dmca, franklin noel, magistrate judges, privacy, sca
Companies: strike 3