Who's to say that the tech platforms that did NOT remove the speech chose not to under Texas's new law about social media "censorship"? You know, the one reinstated by the fifth circuit? So with regards to these platforms' actions (or lack thereof) on the mass shooter's posts, it's damned if you do, damned if you don't.
Do you know what we need? We need some sort of federal legislation that makes it clear whether or not social media platforms are allowed to moderate, and for what reason. Maybe then, we'll have clarity on whether a tech platform can be held liable for the speech of others. Oh, wait...
Techdirt needs to run a Stupid Lawsuit of the Month feature. It's only the 6th, but I'm certain this suit would win the award hands down!
Cue the copyright maximalists saying, "bUt tHeRe'S nO fIrSt aMeNdMeNt pRoTeCtIoN fOr cOpYrIgHt iNfRiNgEmEnT..."
True, but the last time I checked, people's first amendment rights don't vanish for the rest of their lives the moment they break one law.
This ruling cannot stand. Hopefully, the ISPs will push back!
I first used a shared password to access Netflix. If I had to subscribe at the time instead of using the shared password, I wouldn't have subscribed then. Yet, I later subscribed to my own account. However, if I ever had to cancel any one of my various streaming subscriptions, the first one I would cancel is Netflix. I don't watch their catalog all that often to justify staying subscribed. That's just basic economics. But go ahead, blame the boogeyman of sharing passwords. That will work wonders for building your catalog.
I'm pretty sure Techdirt and the author are aware Netflix is a private company, and it has the right to make the decision that's discussed here. But just because Netflix has that right doesn't make it morally right.
I think now is a good time to remind everyone that copyright was first born in England (of all places) out of a system designed exclusively for censorship and control by the state. The English crown initially established the Stationers' Company as a monopoly over the printing press, while paying them money to act as in-house censors for anything the government didn't like. Once those desires for state censorship disappeared, the crown was content to allow the monopoly to elapse, much to the dismay of the Stationers.
They begged and pleaded, bringing their family with tears in their eyes, asking the crown to reinstate the monopoly. It was their argument that authors should have the ability to "own" their works that won the Crown over, resulting in the world's first copyright law: The Statute of Anne. And even today, copyright once in a while shows the true nature of copyright's origins, as it does here. It's not to incentivize creativity. It's not to protect creators and their works. It's a tool of censorship and control by publishers. Copyright should just be abolished.
But even putting that aside for a minute, the fact this was made criminal at all was astounding to me! At least a cease-and-desist would be bad enough. I was unaware of the City of London Police and their problems until this case. In the United States, the DOJ wouldn't dare prosecute a case on this; it isn't a massive, commercial-scale copyright infringement case that meets the definition of criminal copyright infringement here. I'm not even sure how different the copyright law in the UK is, but this is not the kind of case that should be made into a criminal matter.
Here's the bottom line: Disney's actions, while problematic, did not surprise me. The City of London Police's action, however, not only surprised me, but also took copyright to a whole new level of evil that I didn't think was possible. And yet, here we are!
Suspending the Constitution for people who would seek to suspend the Constitution and replace it with a fascist and theocratic version of it actually sounds good.
That is a very dangerous idea. NOT because I'm sympathetic to Nazis. Far from it. However, the Constitution exists so that EVERYONE is included when we say, "Equal rights to all." It would be very dangerous to change it to "Equal rights to all unless we dislike what you say."
Look, I'm anti-Nazi, and I'm politically liberal. The Constitution exists so that if, heaven forbid, some Nazi assumes power, they can't revoke people's civil liberties from people like ME just because THEY don't like what I have to say.
There's no way to just eliminate Constitutionally guaranteed civil liberties from "bad people". The term "bad people" is very subjective, and what you might consider a "good person", someone else could consider a "bad person", and vice versa. What your proposing is an idea so dangerous, that it would eviscerate the guarantee of essential Constitutional rights. At that point, the Constitution becomes toothless.
As I said before, I'm politically liberal. I think what Josh Hawley is doing is stupid. But I don't think this should be made into a copyright issue. What if it was a photo taken by a far-right news organization that a liberal politician was making a fair use out of to criticize that position? Would you be fine if that photographer sought legal action against that politician?
Fair use can't have a political distinction between any particular political viewpoint. Fair use must apply to everyone equally, whether we like the idea being expressed or not. And that's not even taking into account my own personal views on copyright law as a whole. If we're going to have a copyright law, we can't use it to suppress free speech, whether we like the content of the speech or not. That's the larger issue that we can't compromise on just because we don't like certain people.
I signed 1 petition from Bernie Sanders back in 2016 opposing the TPP, and now my inbox is flooded with emails from Democratic organizations and candidates. Some emails end up in spam, but most others do not. Even as someone politically liberal, I could do without all the emails. At this point, I just click through all the political emails in my inbox without reading them. But sure, conservatives, complain about being "censored" by big tech because people aren't willing to read your political emails once they end up in spam.
Am I the only one who thinks a fair use argument could be made here? I'm not saying it would hold up in court, and it's not as strong an argument as other, more clear-cut examples, but an argument could be made nonetheless.
For the first factor, the purpose of the scan's upload is for preservation and archival use and is non-commercial in nature. As the article says:
...those manuals are part of the history of the art that is video games. And, as art, they ought to be preserved.
The work was originally created to provide strategy for the game as well as developer commentary. Here, it's being used to preserve the manual as a part of history. It could arguably be considered transformative, and therefore be fair use. It's not a strong argument for being transformative, and it hasn't been tested in court before, but it definitely could be made.
The other factors are a lot more straightforward.
Nature of the work: The work is at least slightly creative and is published, so it goes against fair use with little weight. Besides, this factor is rarely determinative
Amount of the work used: The SCOTUS has said that although less is more, the whole work can be used as fair use when the purpose of the use requires it. That is the case here. There's no purpose in preserving only a small portion of the manual. This slightly favors a finding of fair use.
Effect on the market: The market (at least now, when the scan was made) is nonexistent. It was only released in one region, is out of print currently, and is otherwise rare. Those that wish to buy a copy will have to spend hundreds on a used copy, which Nintendo won't see a cent, and there are no plans for Nintendo to bring the book back into the market. Without a market to harm, there's no market harm. This would favor a finding of fair use.
Weighing the factors together, we have three factors that favor fair use and one factor that doesn't. The factor against fair use is rarely determinative and carries little weight. So, a court could reasonably conclude this is fair use.
But of course, Nintendo comes from a country where there is no fair use (or similar) exception in copyright and where such fair uses where arguments to such could be made in civil court in the US instead end up as a criminal matter with suspended prison sentences imposed. Combined with Nintendo's general "I hate you, fans" stance on their copyright enforcement, I doubt they'd be willing to entertain such a defense.
If the uploaded raised this argument in a counter-notice, I'm almost certain Nintendo would sue. Thanks to the DMCA, it would have to be in a US court that could hear a fair use defense. But given the costs of litigation, I doubt the uploader would want to risk it. Such is the sad nature of copyright law, which is once again, showing its true original nature as a system of censorship as opposed to an incentive for creativity and protecting creators' works that copyright maximalists would like us to believe!
Can we instead call this bill the "Content ID Enshrinement Act"? Just like we called the Sonny Bono Copyright Term Extension Act the "Mickey Mouse Protection Act", that nickname better fits the nature and scope of the bill. Plus, it also derides the proposal and gives the bill's opponents more ammunition to push against it!
This section shall not be construed to impose liability for a social media platform for content that is generated by a user of the service, or uploaded to or shared on the service by a user of the service, that may be encountered by another user, or other users, of the service.
Let's see how Californians feel about people posting full movies on YouTube with the disclaimer "This upload shall not be construed as an infringement of the film's owner's copyright."
In the end, those kinds of "copyright disclaimers" are about as effective against the DMCA as that little blurb is effective against section 230. In other words, it's effectively useless!
Copyright might as well be a cult at this point. The sky is literally falling in Ukraine, and Disney's #1 concern over there is... a lack of royalties from the area! People are dying. War is raging in Ukraine because of the whim of a Russian dictator. And Disney doesn't want more sanctions on Russia because it hurts their bottom line? Well, what do you expect when the creators of feature films based on fairy tales have something in common with counterfeit unicorn fighting lawyers from a few years ago?
I get emails from change.org on a regular basis asking me to sign various petitions created by their users. One time I got an email from them about a petition by this guy, aiming to convince the TV station to give him a co-copyright on the work, so he can use the DMCA to take down the videos. This was well before the NFT development. Needless to say, I didn't sign that one!
There's one part in Techdirt's story that baffles me, though:
Indeed, the TV station is quoted in the article noting that...it has provided licenses to Parker to help him get the video removed...
I'm not sure such a license would even be valid under current copyright law. There is no exclusive right to "get a work removed from the internet" under copyright law that can be licensed, just like newspapers couldn't license "the right to sue" to Righthaven, and the court said as much when dismissing Righthaven's lawsuits.
I think the most they could do is outsource the ability to send DMCA notices to a third party, which could be Andy Parker. However, the final decision would have to be made by the copyright owner (the TV station). Unless they make a blanket decision to bar any re-use of the footage (fair use notwithstanding), there's no other way for Parker to unilaterally say in any DMCA notice that the use of the video wasn't authorized "by the copyright holder, its agent, or the law".
So, as sad as this story is, outside of a transfer of ownership of copyright, there's no way for Andy Parker to use copyright by himself to get the video removed from the internet. Creating an NFT does nothing to help in this regard, either. If this really is advice from his lawyers, either they're not knowledgeable of how technology works or they're deliberately misleading him. I sincerely hope it's not the latter.
Indeed, I have to agree with that one Anonymous commenter before me that says he shouldn't be trying to look for videos to get them taken down. It'll only give him more grief having to relive that moment over and over again. Maybe it would be better for him to give up this mission of scrubbing the video from the Internet. Such an effort is futile and will only delay his healing from the loss of his daughter. Sometimes, it really is best to just let it go.