New orphan works bills introduced
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Yesterday bills were introduced in the House (PDF) and the Senate (PDF) addressing the orphan works copyright issue about which I’ve written many times before. Alex Curtis has a great write-up of the bills over at the Public Knowledge blog.
An orphan work is a work under copyright the owner of which cannot be located so that a potential re-user cannot ask for permission to use or license the work. If you can’t find the owner, even after an exhaustive search, and use a work anyway, you risk the possibility that the owner will later come forward, sue you, and claim statutory damages up to $150,000 per infringing use.
Both bills are largely based on the Copyright Office’s recommendations and not the unworkable Lessig proposal that had been previously introduced as the Public Domain Enhancement Act by Rep. Zoe Lofgren. The bills limit the remedies available to a copyright owner if an infringing party can show that they diligently searched for the owner before they used the work. (What constitutes a diligent search is specifically defined, which should address the concerns about the Smith bill expressed by visual and stock artists.)
Rather than statutory damages, the owner would simply be owed the reasonable compensation for the infringing use—that is, what the infringer would have paid for the use if they had been able to negotiate. I think this is a fine solution because it gives all copyright holders an incentive to keep their registrations current and their works marked to the best of their abilities (i.e. what old-time formalities used to accomplish). I’m also happy to see that injunction is also limited.
Like the Smith bill, both of these new bills direct the Copyright Office to complete a study and produce a report on copyright small claims. There are many instances of copyright infringement that are too small to be litigated in federal district court—like a website that uses my copyrighted photo they got off flickr. Professional photographers and other visual artists face this all the time and there should be a way to address their concerns. One idea is to create a copyright small claims court and it’s something I’d love to research and contribute to a Copyright Office proceeding. So if Congress has been thinking about this for a few years, what’s stopping the Copyright Office from taking on the project sua sponte?
Anyhow, stay tuned as these bills wind their way through committee and the IP maximalists are engaged.
That’s what you get for tricking little children
The Sneaky Chef is a cookbook for parents who want to con their children into eating foods they would otherwise like to avoid, like vegetables and other non-hot-dog products. The New York Times says its recipes “camouflage puréed vegetables and fruits in comfort food for children[.]” Kathleen gave it to her brother and sister-in-law this Christmas and they loved it, though I can’t say the same for their M&M-aware two-year-old.
Now the author of the book, Missy Chase Lapin, has sued Jessica Seinfeld, wife of comedian Jerry Seinfeld, for copyright infringement. Seinfeld, it turns out, also has a kid-defrauding tome, which is called Deceptively Delicious.
Now, the first thing that pops to mind is that recipes aren’t subject to copyright, only their expression. Even if you were going to nick someone else’s recipe for your book, you’d write your own little paragraph introducing it, and it seems like that’s what Seinfeld did. So what do the suit allege? Similarities in “original expression, philosophy, premise, approach, explanations, discussions, reflections, organization, methodology and overall look and feel.” Except for maybe the first thing, she doesn’t have a leg to stand on.
What I like even better, though, it the defamation suit she has filed against Jerry Seinfeld for, among other things, calling her “a wacko.” According to the Times,
On the Letterman show, Mr. Seinfeld did not refer to Ms. Lapine by name, but spoke of a “three-name woman” and said that “if you read history, many of the three-name people do become assassins.” The complaint states that Ms. Lapine is “not a violent or dangerous person.”
Turnitin and Google Book Search: same thing?
The Washington Post reports today on a couple of Virginia high school students who are suing anti-plagiarism service turnitin.com for copyright infringement. According to press accounts, the service is used by 6,000 schools, including Harvard and Georgetown. The way it works is that students turn in papers to their teachers by submitting them through Turnitin’s website. Turnitin then compares the submitted papers to a snapshot of the web, to databases of published articles, and to its own database of millions of other student papers. The problem is that the submitted papers are added to the company’s database of student papers without student permission. Plaintiffs in the case specifically marked their papers asking that they not be archived but they where nonetheless. The students have a website at dontturnitin.com.What’s striking to me is how similar this is to Google Book Search. It remains to be seen whether Turnitin will make a fair use defense, but their past statements suggest that they will. (Here is a PDF of a legal opinion that Turnitin commissioned.)
Google is copying books without the copyright owners’ consent and storing them in a searchable database, just as Turnitin does with student papers. Google copies the whole book, but argues it’s a fair use because they only display a “snippet” of the text in search results. Turnitin also copies the whole work and only displays snippets to teachers if there’s a plagiarism match. Both Google and Turnitin make commercial use of the works they copy and they both arguably serve educational purposes. And If Google’s use doesn’t affect the “potential market” for licensing books to be included in searchable databases, then Turnitin’s use certainly doesn’t affect the potential market for licensing papers to be included in a plagiarism database.
So, can these cases be distinguished? If not, are they both fair use? I’m still thinking about this one, and I’d like to hear what your analysis is.
Cross-posted at TLF. You can leave and read comments there. →
Viacom Sues Google Over YouTube Clips
WSJ: “After months of negotiation punctuated by pointed rhetoric, Viacom Inc. sued Google Inc. and its YouTube unit, claiming the popular video-sharing site engages in ‘massive intentional copyright infringement.’” Exactly one year ago (eerie) I hinted that this day would come. How long before Mark Cuban says I told you so?Was the RIAA deputized in Drama case?
The NYT Magazine has a feature this weekend on DJ Drama, the Atlanta mixtape producer whose studios were recently raided by SWAT teams at the apparent behest of the RIAA. It seems like the writer was working on a profile before the arrest. One thing that struck me:Kilgo works in the R.I.A.A.’s Atlanta office, and in the weeks before the raid, the local police chief said, R.I.A.A. investigators helped the police collect evidence and conduct surveillance at the studio. Kilgo consulted with the R.I.A.A.’s national headquarters in advance of the raid, and after the raid, a team of men wearing R.I.A.A. jackets was responsible for boxing the CDs and carting them to a warehouse for examination.
Men wearing RIAA jackets carting away CDs? Were they deputized? How’s an industry group involved in an alleged crime scene? Even if they consulted in the case. And really, RIAA jackets? Please.
Search, cache, and copyright
Google has lost its copyright appeal against Belgian newspaper publishers. There seem to be conflicting reports about what exactly Google was found liable for. Here’s the WSJ:A Belgian court ruled Tuesday that Internet search engine Google Inc. violated Belgian copyright law when it published snippets and links to Belgian newspapers on its Web site without permission.
And here’s the AP:
A Brussels court ruled in favor of Copiepresse, a copyright protection group representing 18 mostly French-language newspapers that complained the search engine’s “cached” links offered free access to archived articles that the papers usually sell on a subscription basis.
Snippets and entire cached pages are very different things. But whatever the case, what this case highlights is how unsettled copyright law is as it applies to search engines (and I’ll limit myself to just the U.S.). As for snippets, sure, there’s Kelly v. Arriba Soft, which found that indexing photographs and displaying their thumbnails is a fair use. But that’s just one circuit’s opinion, which is very persuasive, but not controlling in other circuits. Then there’s Perfect 10 v. Google, which cuts in the opposite direction. Continue reading this post »
Lessig’s orphan works proposal unworkable
Lawrence Lessig has a new half-hour presentation on his blog where he outlines his opposition to the Copyright Office’s recommendations on orphan copyright works that were the basis for the proposed Orphan Works Act of 2006, and which were very similar to the proposal Bridget Dooling and I made. He also proposes his own alternative solution, which is much like the proposed Public Domain Enhancement Act he helped craft and which Bridget and I have critiqued. I find his new articulation to still be completely unworkable. Let me explain.Continue reading this post »
Google Book Search the new MP3.com?
The New Yorker has a dispatch from Jefferey Toobin updating us on the Google Book Search case. It’s a good primer if you haven’t been following this issue, and also fills in some details if you have. Interesting tidbits include the fact that they haven’t started witness depositions yet, and the parties won’t be able to make motions for summary judgment for another year. More interesting is the fact that both Google and the plaintiffs (authors and publishers) are sure this will settle out of court.“The suits that have been filed are a business negotiation that happens to be going on in the courts,” [Google’s] Marissa Mayer told me. “We think of it as a business negotiation that has a large legal-system component to it.” According to Pat Schroeder, the former congresswoman, who is the president of the Association of American Publishers, “This is basically a business deal. Let’s find a way to work this out. It can be done. Google can license these rights, go to the rights holder of these books, and make a deal.”
Lawrence Lessig points out that while a settlement would be good for both parties, it could create a practical precedent that if one wanted to start a book-scanning project, one had to license the books–a lot like the precedent set by the MP3.com case that was ultimately settled out of court.
Another interesting bit about the technology itself is how Google plans to rely on linking from the wider web to give the information in books the context its search algorithms need to produce good results:
“Web sites are part of a network, and that’s a significant part of how we rank sites in our search—how much other sites refer to the others.” But, he added, “Books are not part of a network. There is a huge research challenge, to understand the relationship between books. … We just started, and we need to make these books networked, and we need people to help us do that,” [Google’s Dan] Clancy said.
Cross-posted at TLF. You can leave and read comments there. →
For markets, for fair use
In an op-ed in The American today (and also in comments to National Journal on the reintroduction of the Boucher fair use bill), PFF’s Patrick Ross writes that those of us who advocate reversing the DMCA and strengthening fair use rights have little faith in markets. According to him, curtailing the DMCA means government intervention in emerging markets.What arguments like Patrick’s ignore is that copyright is unlike other property rights, copyright is a different animal. This is evident in the fact that the power to create copyright is one of the enumerated powers of Congress laid out in the Constitution. Copyright would not exist but for the grace of Congress. If Congress decides to create copyrights, it has complete discretion (within constitutional bounds) to set the outlines of copyright. Congress can decide, among many other parameters, that copyright is for only one year or for 100 or for any length of time in between. Therefore, whatever market in copyrighted works emerges once Congress has created copyright, it must conform to the shape of the copyright Congress created.
Patrick writes:
It’s easy to forget that when we purchase digital content, we are in fact purchasing a set of rights to that content, rights shaped by current technologies, as well as the expectations of both creators and consumers. When those rights are sold to us, there are some uses that the creator does not authorize. As we discover new ways of using content, those uses begin with the creator, who can then decide the terms on which he wants to sell them.
As I have shown, though, the shape of these rights are not just set by contract, but by Congress as well. (The reason why is a bit beyond the scope of this blog post, but suffice it to say it’s because ideas, unlike tangible property, are not scarce, and copyright is less property right than government grant.) Patrick continues:
I can see why a consumer, having paid for a song or a movie once, wouldn’t want to pay for it a second or third time in order to use it on another platform. However, when the market offers sets of flexible rights, consumers will be able to buy only the rights they want. If you want to listen to music only on your home stereo, say, but not in your car, then in the future you may be able to pay less–you won’t have to buy (and then not use) the right to listen in your car, as you do today.
What Patrick is arguing against here is a notional fair use right to format-shift or place-shift. I wonder if he’s also against a right to time shift since you could contractually limit consumers to only watch your content from noon to one on Tuesdays.
Patrick writes that “Congress should only alter the state of a market when there is a sign of market failure.” Quite true. However, another legitimate rationale for Congressional intervention is government failure. First carved out by common law courts and later codified by Congress, fair use is one of the outlines of copyright. To the extent one has to circumvent an anti-copying measure in order to make fair use of a work, the DMCA has hobbled fair use (and, some free-marketers would say, replace it with rent-seeking and barriers to competition). Repealing the DMCA will affect markets for copyrighted works just as its enactment did. This is because, in effect, Congress shapes the market. It is within its constitutional power to do so. Those of us who favor a less-restrictive interpretation of fair use are in fact seeking more vibrant markets in culture.
Cross-posted at TLF. You can leave and read comments there. →
Rip, Mix, Sell?
We can all agree how pernicious the DMCA is when it’s used by the MPAA to put out of business Load ‘N Go–a small company that sold iPods preloaded with movies along with the DVDs of those movies. Piracy was not an issue here because consumers had to buy the DVD of every movie loaded onto their iPod. The reason MPAA acted, of course, is because Hollywood wants us to pay twice for movies–once for a DVD and again for an iPod or PC version.Sometimes, however, the content industry has a point. Today Todd Dominey posted on his excellent blog his experience getting rid of his 3000-CD collection and going completely digital. He ripped everything to his computer and then sold all the CDs on the Amazon Marketplace. Today’s post is a great howto for folks with big collections. The thing is that he kept the music, but every used CD he sold is arguably one new CD the recording industry didn’t sell. (There’s probably not a one-to-one correlation there, but probably pretty close.) As more folks move to digital, this practice will only grow.
As far as I can tell this is plain and simple copyright infringement. I don’t think DRM coupled with the DMCA is the solution. Given the new reality of the internet, the only choice the content industry has is to change its business model. But when you see something like this, you have to feel their pain. I believe ripping your CDs or DVDs for use on your portable devices is fair use, and I think the Copyright Office should have issued a DMCA exemption for the practice. That said, you can’t have your cake and eat it, too.
Cross-posted at TLF. You can leave and read comments there. →
New DMCA exemptions (plus iPhone rumors)
I can’t believe Tim Lee hasn’t posted about this already, but the Copyright Office has released its list of new exemptions to the DMCA. All around they’re pretty good considering how stingy the Copyright Office has been with exemptions in the past. Missing, of course, is an exemption that would allow folks to format-shift their DRMd DVDs or CDs onto other devices like PCs or iPods. Derek Slater has a round-up of reaction from around the web.Notable among the exemptions is one for locked cell phones. Wireless carriers will subsidize your phone purchase, but the phone you get is locked so you can only use it on one network. This exemption will now allow consumers to take their locked phones to a competing network who I’m sure will be happy to unlock it for them. On the surface this is great for consumers, but I also wonder what impact it will have on carriers’ willingness to subsidize phones. On the margin, at least, their incentive has shrunk. If that’s the case (and allow me to be a geek for a moment) then it might help Apple’s assuredly forthcoming iPhone better compete since many believe that it will be sold unlocked and without attachment to any carrier.
Cross-posted at TLF. You can leave and read comments there. →
IP Chairman Boucher?
WIlliam Patry writes today about what the election could mean for copyright. Bottom line, either Howard Berman or Rick Boucher will take over the IP subcommittee in the House, and Patry thinks there’s a good chance it will be Boucher. Boucher is no friend of the DMCA and seems to understand fair use.Mr. Boucher is viewed by content owners as generally less sympathetic to their interests, although I would phrase the matter quite differently. Mr. Berman will always play an important role in the House on IP matters even if he is not chair of the subcommittee. In the past, he has taken great interest in international issues, and that may be the way he goes. The idea that he would pass on a different chairmanship solely at the urging of content owners is an idea that doesn’t reflect Mr. Berman’s overall interests or his role as a member of Congress. This isn’t to say he won’t take the IP subcommittee, it is only to say that I doubt the matter is as settled as some think.
Cross-posted at TLF. You can leave and read comments there. →
RSS feeds and copyright
Cross-posted from TLF: To make it a copyright trifecta today, here’s an interesting story about ambiguity in how copyright applies to RSS feeds. Does merely offering an RSS feed imply that anyone can take the feed and repurpose it on another site? Many “splogs” (spam blogs) aggregate unsuspecting RSS feeds to attract keyword-driven traffic and thus make money with Adsense.EFF’s Fred Won Lohman says, “Frankly, until there is some case law on this or related issues, we simply can’t be sure of the answers to these questions.” IP prof Eric Goldman says “In my mind, there’s no question that a blogger grants an implied license to the content in an RSS feed. However, because it’s implied, I’m just not sure of the license terms.”
I’m not sure how an RSS feed is different from any other content on the web. Unless text on a site makes it clear that a feed is available to be used any way you’d like, why would should we presume that the owner is giving up any rights? Sure, RSS is XML, which makes it easy for others to repurpose your content, and presumably you wouldn’t be publishing easy-to-repurpose XML unless you intended others to do that. However, the most prevalent consumer application of RSS are newsreaders, so I think it’s much more reasonable to assume that personal news aggregation sites publish RSS. As far as copyright is concerned, I don’t see how this kind of use is any different than browsing content on the web.
Some sites, like the New York Times, offer RSS feeds with special instructions about using them on your own site. As long as that’s not the case, the usual web norms (increasingly accepted by courts) should apply: copying even large chunks of content with attribution is fair use (a la Google News or Eyebeam’s reBlog), taking entire sites wholesale is not.
Cross-posted at TLF. You can leave and read comments there. →
A cursory reading of the orphan works bill
The L.A. Times publishes a letter to the editor from one Gerald W. Puschel that makes the case that, “H.R. 5439, the Orphan Works Act of 2006, gives competitors [of a copyright holder], customers and anyone else the right to use original designs for profit after only a cursory search for the rightful copyright owner.” I guess that by “cursory search” he means “performed and documented a reasonably diligent search in good faith” because that’s how the bill reads. Don’t believe the hype; the Orphan Works Act is not a get out of jail free card for infringers, and courts won’t stand for “cursory searches.”More new stuff
Here are some links to my recent output. I recently moderated a roundtable discussion on net neutrality with panelists from Heritage, PFF, Public Knowledge, and Free Press. Audio and photos of the event are online. Also, the June edition of AFF Radio, which I host, is also online. The show features James W. Antle on what Democrats can learn from Republican foreign policy, Brooke Oberwetter on the truth about global warming skepticism, and Will Wilkinson on how free labor markets contribute to individual happiness. Finally, if you’d like to subject yourself to an hour of me speaking non-stop, you can download audio (mp3) of my recent lecture to Hill Staffers on the subject of copyright, incentives, and orphan works. The slides (pdf) are also online, but they’ve been converted from Keynote to Powerpoint to PDF and they don’t look to great.Not an urban legend
For a long while I’ve been bemused by the running rivalry over intellectual property issues between some of the writers on this blog and the folks at PFF. While sometimes entertaining, I often shake my head when Tim takes the time to painstakingly refute an argument from Jim DeLong that on the surface was already patently erroneous. Now, as I prepare to take the bait myself, I think I understand the feeling of exasperation that prompts such replies.Yesterday DeLong posted an entry entitled “Another Urban Legend Shot Down.” He wrote that “One of the arguments against extended copyright terms, made in Eldred and other places, has been the charge that there are piles of books, films, etc., moldering away unseen because no one can get permission to look at them and the copyright holders are too oblivious to find and exploit useful items.” He then says that the fact that Amazon sells DVD packs that contain 50 classic movies for just $16.47 refutes the idea (or “urban legend” as he puts it) that there are other movies out there that are being harmed by extended copyright terms. He goes on, “Would such treasures be available if there were no money to be made from making them so? Doubtful.”
FIrst DeLong implies that there are no such works disintegrating out of sight and hints that such an idea is just an “urban legend.” I would point him to the Library of Congress’s report on film preservation. It catalogs precisely the fact that a great number of films are literally disintegrating. It is a fact, not a myth.
He further characterizes the argument he is trying to refute as a charge that works are “moldering away unseen because … the copyright holders are too oblivious to find and exploit useful items.” It’s not just that they are oblivious, but that they are completely unaware of their ownership. It’s called the orphan works problem and I assume he’s familiar with it. You can read more about it here. Film is a fragile medium and to preserve it one must copy it. (The same goes in many respects for photos, too.) Copying without permission, of course, is infringement–even if you can’t find anyone of whom to ask permission. This means that even if I wanted to restore 50 orphan films on the verge of disintegration so that I could make and sell an Amazon DVD pack–a fine motive–the copyright on those films will prevent me from doing so. The longer copyright terms are extended, the longer I can’t restore and sell the movies, and with disintegrating film time is a major factor.
It also does not follow that because there are DVD packs for sale on Amazon that all films will benefit from restoration. As the LOC’s report sates:
If there is a single division that separates most of the preservation issues discussed in this report, it is between two categories of films: those that have evident market value and owners able to exploit that value; and the other films, often labeled “orphans,” that lack either clear copyright holders or commercial potential to pay for their continued preservation. In practice, the former are primarily features from major Hollywood studios; the latter–numerically the majority–include newsreels and documentaries, avant-garde and independent productions, silent films where copyright has expired, even certain Hollywood sound films from now defunct studios. For these films the urgency may be greatest.
DeLong further seems to argue that without extended copyright protection, the Amazon DVD packs would not exist. He asks, “Would such treasures be available if there were no money to be made from making them so? Doubtful.” But I would point him to another series for sale on Amazon called Dover Thrift. It is a series of books, priced at about $2 each, the underlying works of which are all in the public domain. That is, they are being printed–and someone is making money–without copyright.
Therefore, what I argue for is not no copyright, but rather sensible copyright. I argue for taking into consideration the public domain, and not just the interests of creators, when setting copyright terms. What should be the balance is up for debate, but an informed debate requires that we face facts and not simply dismiss those facts as urban legends because they are inconvenient to our position.
Cross-posted at TLF. You can leave and read comments there. →
WSJ: Who’s Your Daddy?
Bridget Dooling and I have an article in this weekend’s Wall Street Journal. It’s the Rule of Law column and, not surprisingly, it’s on orphan works. Here’s a bit:Fiddling with copyright terms and registration, however, would require not only the abrogation of several international intellectual property treaties, but also the political will in Congress to stand up to movie and publishing lobbies. Luckily, a much simpler solution is possible, and an orphan works component can be snapped into the existing copyright system. Congress can create an affirmative defense — along the lines of fair use — for those who copy a work after trying unsuccessfully to locate the copyright owner.
Images of orphans
On their blog, the Stock Artist Alliance continues to post disingenuous entries that suggest that it is impossible to locate the copyright owner of an image found online. They surf the web and grab a few images, then they post them on their site (not the originals, mind you, but a composite image that you can’t use to track back using filename or file size data — they’ve done this here and here), and then they dare anyone to find where they came from. In yesterday’s post they write,We searched the internet and found these eight images from a variety of sources. It was easy enough to find them, but would not be easy to find some of them again. None had file names that were helpful, and none had any metadata at all. So if you cannot locate the source after doing your own “diligent search,” should you feel free to use them anyway?
First, the SAA never reveals where it got the photos. If I found a photo on a website and I wanted to use it and the filename wasn’t helpful and there was no metadata, I would not throw my hands up in the air. I would quite simply contact the owner of the website where I found the picture. This person might be the copyright owner or at least will be able to tell me where they got the picture providing me my first lead in a reasonable search. The SAA seems to ignore that one can take the context of the picture into consideration; uncredited photos are not simply flying around cyberspace.
Context means a lot. For example, without saying which photo and which specific site, the SAA explains that one of their sample photos comes from a U.S. government site and seems to imply that the government owns the copyright. Knowing that context is helpful because U.S. government works are in the public domain by law and anyone is free to copy them.
Second, the fact that works are uncredited is a problem. However, one the causes of that problem is that authors/owners today feel free to release those works without attribution knowing that they will retain their full rights and that they will be able to pop out, sue, and collect heavy damages from an unsuspecting user who couldn’t find them to ask for permission. So, in many cases, authors/owners don’t bother putting attribution on their works. An orphan works law would help remedy this by giving author/owners an incentive to mark their works and to make sure they stay marked.
Lessig on orphan works
Lawrence Lessig has posted his thoughts on the Copyright Office’s orphan works report. He is largely critical of the report’s conclusions and continues to support the proposed Public Domain Enhancement Act (PDEA), which was based on his ideas. In my recent paper with Bridget Dooling, we show why the PDEA solution is unworkable. But I think it’s worth addressing some of the points Lessig makes in this new response.Continue reading this post »
More opposition to orphan works legislation
From Illustrators’ Partnership: “This legislation jeopardizes visual artists’ copyrights and robs artists of income.” I don’t see how this is the case. The whole problem with orphan works is that they go unused if an author/owner can’t be found. If they go unused, authors don’t get a royalty. With this legislation in place, potential users will have to diligently attempt to find the owner. If they find the owner, they must pay for a license. If they don’t find the owner because they didn’t conduct a diligent search and they nonetheless use the work, then authors are no worse off than they are today because they’ll never know of the infringement, or, if they do find out, they will be able to successfully sue in court and recover damages. If the would-be user doesn’t find the owner after conducting a diligent search, under the new proposals, they will be able to use works that they now can’t use without facing severe penalties. In a sense, this is a loss of authors’ rights, but certainly not of income.That works go unused today does not benefit artists because unused works do not generate income. What authors who fail to adequately identify their authorship on their works do lose under these proposals is the right to refuse permission to use the work. But as my co-author Bridget Dooling has pointed out, the Supreme Court has quite rightly held over and over again that “the primary objective of copyright is not to reward the labor of authors but ‘to promote the Progress of Science and the useful Arts.’” Orphan works legislation will give authors an incentive to take steps to assure that their works will be traceable back to them, and this in turn will create new information in the world about copyright ownership that we now lack. That is good for everyone, including copyright owners.
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