Slashdot Mirror
Expanding Fair Use To Reform Copyright Law
Hugh Pickens writes "Gigi Sohn, President of Public Knowledge, presented a six-step program for reforming outdated US copyright laws in a speech at the New Media conference at Boston University. Sohn expressed no patience with the 'disconnect between the law and the technology' of media production and distribution. He puts Fair Use at the top of the list for changes that will help return balance to copyright laws that have limited innovation, scholarship, creativity, and free speech. In addition to the four-part legal test for fair use currently on the books, Sohn recommends that Congress add incidental, transformative, and non-commercial personal uses to the list of fair uses enumerated in copyright law, and in addition expressly provide that making a digital copy for the purpose of indexing searches is not an infringement. Beyond Fair Use reform, Sohn advocates punishing copyright holders who 'knowingly or recklessly' send out false takedown notices, protecting the manufacturer of a technology from liability for the infringing activity of others if the technology has substantial non-infringing uses, promoting fair and accessible licensing of copyrighted works, limiting damages for the use of orphan works, and requiring copyright holders to provide notice of any limitations on users' ability to make fair or lawful uses of their products."
and how much did Public Knowledge give in campaign contributions this year? How much do they plan on 'donating' in 2008?
'Cause I'm thinking the industries that give millions might not be in favor of any legislation that would do any of this stuff.
And I'm thinking that the millions of dollars are gonna talk louder.
It's hard to believe that's how Micronians are made. Why don't we see it right now by having you both kiss one another?
if it sounds too good to be true, it probably is. This is exactly what people want, and what they will never get.
-I only code in BASIC.-
The problem with organizations like this, that are trying to tame copyright laws, is that they don't have any money, which is the only language politicians speak. I don't know if we should blame the politicians, or blame the media for forcing politicians to raise enormous sums. I would still blame the politicians, because I think given the choice between federally-mandated/funded campaigns, and raising millions of dollars, they would still rather raise millions of dollars (plenty of wiggle room for personal profit) and so aren't passing the necessary campaign finance reform laws that could easily level the playing field for the average Mr. Smith.
You have to think the various treaties we entered into that apply to copyright law. Some nations have different legal philosophies about the property rights that exist in intellectual property. Our own nation has changed its standard on property rights (making them economic rights). The result is longer copyrights that cover more things than before. (I'm commenting on some things he said in his speech).
/. article where a fellow showed that economically the nation is better served by shorter copyrights. The fact that Yoko Ono can be a near-billionaire for John's shaking his head and playing music should reveal how far gone copyright has become. Under the old-old standard (14 years plus 14 years), the Beatles' music would have all been public domain already.
There was an earlier
Or, perhaps we should limit corporate ownership of copyright? For example, limit a corporation to only being able to license an author's work (rather than receive a transfer of ownership). This is excepted where the owner is an employee or work-for-hire. Limit the license to a one-time 10 year license. Works-for-hire are good for only 20 years.
What those who want activist courts fear is rule by the people.
...with the vast amount of bandwidth, private networks, and users who are happy to share anything they spend time ripping and encoding.
The Internet has been very exciting for me -- I've never put a copyright on my works, and always openly let people copy and distribute what I've created. I'm even OK with no attribution, and letting others put their name on my productions. In the long run, it increases the interest in the markets I'm in.
The little guy has rarely been helped by copyright. There are a few examples, but in general, copyright has been about protecting distribution monopolies and NOT protecting the artists or content creators. It changed when copyright lost its 7+7 year cap.
Since then, distributors have had a de facto strangehold on most markets. That's fine -- the more people have access to the web, the faster the amateur, pro-am, and casual artists will be able to distribute without the old media monopolists.
You can try to "fix" copyright, but why beat a dead horse? I get more excited from seeing the massive influx of new artists in ALL markets (music, video, cartoons, comics, blogs, etc) where the artists openly place their content for the world to use. I can't recall the guy's name (mphillips, maybe?), but there's an artist who produced pencil art of Serenity/Firefly characters (yes, they're protected for some strange reason), and he distributes the high res images freely only. He makes his money by selling his own prints -- but anyone is free to print their own. Why let the artist print? Because some people feel a MORAL obligation to compensating the artist (I do), so they "donate" to keep him going. That's how most art was commissioned until the copyright monster reared its ugly head.
The future is bright for those who don't resist the open atmosphere of the new public domain, which is what I would consider MOST of the Internet. Yes, most blogs have a copyright statement at the bottom, but the long term solution to battling people who "steal" your "work" is to just notify your fans about them, and let simple reputation take care of the rest. What happens if a big company takes your work? Good luck fighting them in court. A single artist with a Cease and Desist has almost NO chance of even going to court -- the laws are written against artists.
10 years from now, I bet we'll see even MORE people sharing the photos freely on flickr, writing freely on blogs, producing videos and music freely. Sure, all those sites have some creative commons license, but again -- who will have the money to fight infringement?
Embrace the new market -- supply is near infinite, demand is finite, so price drops to zero. But the reputation you can build from producing years of quality new content is more than enough to compensate you in the long run; financially and otherwise.
It's a bit off-topic, but "mere" transforms devoid of creativity should never get a fresh copyright.
This is already the case with photographs of 2-dimensional works in the USA: Due to a court ruling, if I photograph a painting that is in the public domain, my photo does not have any copyright protection.
In a perfect world, the same would hold for literal translations of text, musical recordings that are faithful representations of a public-domain score, and other mechanical transforms.
On the other hand, if I took a passage from the King James Bible and wrote it by hand in my own calligraphy, I should be able to protect it as a work of art for the usual length of time. I have added a non-trivial creative element. Likewise, musical recordings that contain a significant amount of improvisation or other deviations from the public-domain score should also enjoy a fresh copyright.
Knowledge is how to play a game, intelligence is how to win, wisdom is knowing what game to play.
Its not copyright itself that is evil, it is certain uses that it is put to by big megacorps.
Copyright law certainly does need reform...
Copyright terms are too long, especially for things like software. While for example a piece of music may be listened to (and have commercial value) for many years, software very rapidly loses value. Do you think anyone would have much use for windows 3.1 short of a curious enthusiast or a collector/museum? Copyright terms in all cases should be shortened severely, most of the profit is made in the first couple of years after release anyway, and it's wrong to let someone carry on milking something they produced years ago. Would you continue to subscribe to slashdot if there were no new stories being posted?
Fair use needs to be extended to ensure people aren't forced to buy multiple copies of the same media to play in a car etc, and DRM needs to be clamped down on for the same reason. People also need to be able to make copies for use (this used to be considered reasonable and standard behaviour, copy the original and play the copy, if the copy gets damaged make another), especially important when kids are involved, and made worse by things like games that require you to keep the original media in the drive (even if theyre not actually reading from it).
Similarly, when copyright expires a work falls into the public domain, DRM prevents that. There needs to be a facility in place to ensure that work will be available freely once it's copyright has expired. Software for which it's copyright expires should be required to be released with source code too.
Abandonware, companies should be required to keep their old products available on a non discriminatory basis, it is unacceptable for something to be "no longer produced" in this digital age. If there is no longer mass market appeal for something, it can be made available in a much cheaper form (ie free or low cost download) and without support. The restriction should be that older media is still available for not more than it's previous cost plus standard inflation, but it's free to become cheaper, and availability should not be artificially limited (ie you should always be able to call and order it, or order online, they cant make the process overly convoluted to put you off).
As an example of why this is important, i have an Amiga here that i would like to play with for nostalgic reasons. I had one years ago, so i still have a pile of floppies containing media in various formats some of which proprietary, but i cannot obtain the program that opens them (and potentially can convert to other formats), the company that made it wont sell or provide me a copy at all. I also can't buy a TCP stack for the amiga or much of the networking apps because the places selling them no longer exist, and the downloadable versions are time-limited demos (disconnect after 30 minutes, useless).
http://spamdecoy.net - free throwaway anonymous email - avoid spam!
the law has always trailed technological progress. this makes sense, as it takes time for the changes technology wreaks upon society to percolate up into society's laws and customs and mores
however, we live in an era where technological change is accelerating
such that, perhaps for the first time ever in human society, the contrast between law and technological change is taking place so fast, the law is getting challenged within a single human generation. the change is bumping up, to the effect that society's laws are actually impeding technological progress
before, it might have taken a few generations of technological change to seriously conflict with the law. so i would assert we are the first human generation to suffer from technological legal whiplash
i hope someone else has coined a better term for this phenomenon than me
intellectual property law is philosophically incoherent. it is your moral duty to ignore it or sabotage it
Last I looked, those were already sworn to be true under penalty of perjury. We just need to enforce it. One time. Some slimy RIAA lawyer sitting in jail for a couple of days would completely change the way it's done now.
While these changes sound good, the copyright industries have congress in their pockets, and congressmen/women openly go to them for "advice" on copyright issues. Until that changes, you can talk all you want, they won't hear you (unless you come up with cash).
As I've said before, they are cheap given the influence that you can buy. It costs just a few hundred thousand dollars to turn a congressman into your own remote-controlled robot that'll say and do what you want. The CEA needs to figure that out.
Do you have ESP?
1. Fair Use Reform.
The author offered no concrete suggestions, just "expand fair use". I offer a suggestion: any non-commercial use should be considered fair use. And if you sue me for copyright infringement and the courts deem my use to be fair use, I should be able to collect a kingly sum from you.
2.Limits on Secondary Liability
BZZZT! No, these tech ddin't become popular because they "challenged the status quo." They became popular because (surprise) they were USEFUL. And again, IMO TFA is wrong. There shouldn't be "limits" to secondary liability, there should be no such thing as "secondary liability.
3. Protections Against Copyright Abuse.
Am I the only one that gets annoyed when someone presents some obscure reference that I'm supposed to know about to the point that they need no link? Look, you want me to know about the "The Let's Go Crazy Baby" case then dammit, link to a Wikipedia article about it. Hmmm... "No page with that title exists". That said, I agree with the author about his point even though it was extremely retarded to expect me to know about "lets go crazy baby". If it isn't in Wikipedia it must be pretty damned obscure.
4. Fair and Accessible Licensing
As an end-user, I should have no license, nor any need for one. Licenses are for those who wish to use a copyrighted work for financial gain. End-user licenses should be illegal, PERIOD, not merely the unenforceable clickthrough licenses.
As to music, a small sample should be considered "fair use", not unlike a quote from a book. File sharing, being noncommercial, should be fair use.
5. Orphan Works Reform
Agreed, to get copyright you should have to register your copyright. And you should havce to clearly state the year your copyrighted work was registered so one can know when it gets to the public domain.
6. Notice of Technological and Contractual Restrictions on Digital Media.
Agreed.
But the guy completely missed the most needed reform of all: Sanity to copyright lengths. IINM at the beginning of the 20th century it was twenty years. That sounds about right; you're not going to pursuade Jimi Hendrix to do any more recording!
The recording artist should hold copyright to the recording rather than the record label, as it is now.
-mcgrew (I hold two ISBN numbers)
mcgrew's razor: Never attribute to stupidity that which can be explained by greedy self-interest
Copyrights are a compromise between the government protecting our free speech and protecting the commerce in "speech" (communication) products that would have failed without some artificial exclusivity back in the 1790s.
The free speech right is unchanged, of course, as well as the minimal infringement people are willing to accept for a working compromise. What has changed is the commerce, and its requirements. But the basic term of the original compromise is still largely acceptable. Which was 14 years of exclusivity for printed matter.
That time is also how long it takes a teenager to grow up to consider their parents' pop songs to be folk songs like the rest of their cultural legacy. Old pop songs that survive that long are make folk songs by the folks, not by the author. The author's exclusive right is not justifiable after that balance evolves in favor of the audience's contribution. Books work the same way.
The same is true of other media, but with different speeds. Movies are "old" before 14 years pass, though the culture could survive a 14 year exclusivity for them. TV (other than movies) is old in under 10 years; talk shows in under a year; TV ads in a few months. Videogames are "classic" after the time that it takes an older brother to hand it over to a younger sister, which is usually 5 years or so.
Copyright has gone so far out of whack that it threatens both the commerce, as the music and book businesses amply demonstrate, and the culture (ditto). Copyright law should specify maximum terms before expiration of 14 years, with shorter exceptions for faster aging media. Those faster media also happen to be more profitable faster, and cheaper to produce, and more completely adopted more quickly. That balance is mandated by the Constitution. We should get back to what's right.
Then "fair use" won't have nearly as many hard boundary cases to consider.
--
make install -not war
Of all the changes going on, rather than creating new laws or changing things that have been the way they were for a very long time, how about just repealing some very recent laws that were, in hind sight, horrible mistakes. Until 1997, copyright violations, for the most part, only occurred where there was measurable loss on the part of the copyright holder greatly reinforced by the proportional gain by said thief. The No Electronic Theft Act of 1997 basically changed the second part such that it was much easier to go after 'thieves' that were not profiting monetarily from their actions. This is what has screwed up the whole system, and what I think most people are arguing about.
So why don't we admit our mistake, repeal the stupid very recent law that has failed society and rethink how that act should have been written to fairly protect artists, as well as the people.
Want Big Business out of government? Take away the incentive and start by getting government out of big business!
That copyright is being used to line the pockets of those unable to either let go of antiquated business models, or devise new and innovative ways to deliver their products.
Witness that the *AA's (the main litigants in most copyright cases) seek to kill technologies they didn't think of, a la Napster, Grokster, Bittorrent, etc., simply so they can increase their revenue streams. They now salivate, *years* after the introduction of P2P and streaming, at the thought of charging "consumers" not for a show/song/episode/album, but on a per-device price for the *same content*.
Copyright is a barely sustainable concept, and then only when the original author/s of the content hold them.
When corporations get into the mix, we all get screwed.
-- whatchulookinherefor?
While I'm all for meaningful copyright reform as soon as possible, I was not impressed by Sohn's proposal. Responding to her points:
1. Fair use reform is dangerous; it is essential that a flexible approach be maintained, even though this may result in less certainty. Remember, fair use arose in the mid-19th century; could the jurists of the day have anticipated novel fair uses such as time shifting? Sohn acknowledged that position, but I don't think she paid it enough heed. The only fair use reform I would suggest, though I am ambivalent as to whether it would actually be a good idea, would be to allow facilitators of fair use to stand in the shoes of actual fair users, reversing the decision of Princeton v. Michigan Document Services.
I do agree with the proposal that copyright should be reduced so as to not interfere so much with certain uses, but these should be structured as statutory exceptions separate from fair use, rather than as a part of fair use itself. In particular, I have long advocated for a broad exception for any non-commercial conduct by natural persons. Exceptions for incidental use, and particularly the incidental copies that are inescapable when computers are involved, are also good ideas. Just not all shoehorned into fair use.
Sohn also proposes an exception to the anticircumvention statutes. That's just inadequate, however. Sections 1201 et seq all need to be repealed; it is impossible to fix them. Indeed, what we really need is the opposite provision: that if a work is published (using a broad definition of publication that encompasses public performance and display) by or under the authority of the copyright holder, the work enters the public domain immediately. Further, that one of the duties of the Copyright Office and Library of Congress will be to assist in the efforts of cracking the DRM on those works and of disseminating those works once unprotected. There would need to be a brief period of time for publishers to reissue or forfeit their already-published DRM'ed works, though that wouldn't apply to works that hadn't been published in some manner prior to the reform taking effect.
While we cannot ban DRM outright, as it is a free speech issue, nor would we want to in certain applications, e.g. private communications and information, unpublished manuscripts, etc., we can at least avoid providing the incentives and benefits of copyright to anyone who would use it for published works. Authors would be free to opt to use DRM, but would forgo legal protection. This strikes me as a fair balance.
2. I generally agree with Sohn on this point, though I don't see much point in abolishing statutory damages for secondary infringers if you're already reversing Grokster with a strict reading of Sony.
3. I generally agree with Sohn on this point as well, though really the 512 exception should be made broader, with more general language, lest a court read it too narrowly, as happened in Napster. Also, the remedies for abuse should be broad, ranging from mere money damages, to injunctive relief, and in extreme cases, copyright revocation.
4. I agree that music licensing needs to be reworked from the ground up, as it is hopelessly convoluted. However, I do not think that there should be a public performance right for sound recordings, as it seems not to have produced any incentivizing effect, and clearly harms the public interest otherwise.
Further, I absolutely abhor the idea of non-assignable copyrights of any type. If an author wants to assign some or all rights, then it should be up to him to do so, provided that no one is forcing him. The typical practice in the music industry to present contracts that are heavily weighted in the favor of the publisher does not rise to the level of compulsion. Authors are free to reject those deals, to try to negotiate for something better, and to self-publish if all else fails. Authors are not children, and do not need special paternalistic protection against making foolish deals. I'm willing to speak out against
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
US copyright terms should simply be "harmonized" with the TRIPS agreement. The TRIPS treaty (a WTO thing pushed by the US) calls for a minimum copyright term of 50 years, and most countries have signed on. So let's take that as the US term - 50 years, maximum.
Call it the "Copyright Term Harmonization Act", and trim back US law to the minimums required by the TRIPS agreement. That's a good first step.
As part of this, provide that willfully publishing content with a false copyright date voids the copyright in the material. This punishes criminal copyright fraud (it's a crime now, but there have been no prosecutions), and will discourage re-stamping old content with new copyright dates. This provision should be retroactive.
Those are provisions one could probably get through Congress.
How about you actually read and understand what I wrote... You are replying to something you imagined.
What bothers me is the argument about technology. This isn't about technology, but instead is about people who want to take and use someone else's work for free. The person who puts in the sweat and creativity should own the fruits of their labor. If they choose to make their work available for free, so be it. But just interesting and don't like he terms that the owner sets doesn't give you the right to take it and we shouldn't change the laws to legalize theft just becuase technology makes it easier to steal. YouTube has some legitimate user generaed content but it also has a whole lot of stolen content that is owned b others. YouTube and Google avoided monetizing so they'd avoid liability under the Safe Harbor provision. They knew full well that a LOT of the content was stolen, but as long as they could build value they didn't care about someone else's ownership rights.
Yes, he content owners have gone too far in fighting fair use, but they are (over)reacting to rampant and widespread theft and the fact that supposedly serious people are making excuses for theft. Look at the BitTorrent nets and you'll see pirated movies, TV shows, software, etc. Lots of it. None of this is fair use.
We need to get rid of stupid DRM schemes that limit the number of devices in my house that I can play something on. We need to allow indexing but NOT full content storage / retrieval from "caches" without the copyright owners permission. We should allow some level of sharing but not on a scale like YouTube where things are so generally available we wind up taking away the ability of the owner to have any say in the use of their works or effectively make money from those works. We need to define "fair use" in an understandable and possibly quantifiable way.
The author has a lot of reforms but the suggestions aren't balanced. We need to restore balance and not have the government confiscate one set of property, just becuase it is somewhat "intangible". People work hard to create great music, movies, software, books and the like and deserve recognition of their efforts and rights.