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Hugh Pickens writes "Gigi Sohn, President of Public Knowledge, presented a six-step program for reforming outdated US copyright laws in a speech at the New Media conference at Boston University.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?
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.
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).
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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
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!