Copyright Talk

The Viacom/YouTube lawsuit got me thinking about creativity. People like YouTube because they can see funny, interesting, weird, or creative things that they would not otherwise be able to see. They also like it because they can show off their own funny, interesting, weird, or creative creations.

The gist of the complaints from Viacom and others against YouTube is that people are posting material to which they do not either own the copyright or have permission to use the material. In other words, people are not actually being creative on YouTube, they’re just recycling other people’s creativity.

I disagree with that. My experience with YouTube, garnered mostly through looking over my daughters’ shoulders as they happily collect videos on their interest of the day, has been that people are exceptionally creative, albeit sometimes with other people’s material.

Self made music videos like this one, with clips of movies or tv shows and set to popular music, are common on YouTube.

YouTube, to me, is the natural evolution of folk art. Folk art is art produced by the average, common person, usually reflecting the culture of the “folk.” The culture of American society is pop culture - the things produced commercially. So the offerings on YouTube fit the definition of folk art perfectly. The common person is able to take the music, television, movie and celebrity icons of our pop culture and turn them into new art. What people are doing on YouTube is much more than recycling the work of others.

But it’s still copyright infringement much of the time.

Google isn’t the only one wading through questions over archiving. The Washington Post reports today a fascinating story about a lawsuit filed by a number of high school students against an online company that archives student papers in order to check for plagiarizing.

The issue as reported by the paper comes down to this: a copy of the paper is submitted to them to check against their database, but they then keep a copy of the paper and add it to the database so that future papers can be checked against it. The students say that’s an infringement of their rights, unless they agree to let the paper be placed in the archive.

Here’s the way I see the analysis on this:

A student writes a paper and owns the copyright (the copyrights of minors may be owned by the parents, but we’ll keep it simple here and refer to the student owning the copyright).
The paper is handed in to the teacher, who has not been given any rights to use or reproduce the paper.
The teacher sends the paper to the online plagiarization checking company.

So far, so good. The paper is in teacher’s possession, she’s merely given it to someone else to read.

The company runs a check of the paper against it’s database. Fine again.

The company then keeps a copy and places it in the database owned by that company.

Now here, the company needs permission from someone. The teacher doesn’t own the copyright, and so can’t give permission to place the paper in the database, even though the teacher may have been perfectly okay in submitting the paper for the cheat check.

The company would have to have permission from the student who wrote the paper (or parents) to archive it. Since the teacher submitted the paper, the teacher would have to have a permission from the student that she could show the company.

But teacher won’t be able to condition submission of the paper and receipt of a grade on the receipt of permission to give away the paper. A public school can’t do that - although a private school might be able to.

Last week saw the latest copyright lawsuit filed. This one is a variation on the theme of “we’re putting songs in little devices that aren’t really radios and aren’t really record players (remember those?) so we’re not really quite sure who should do what but this side thinks its free and this side thinks its not.”

Intellectual property is a slippery concept, because it’s intellectual and doesn’t exist in a corporeal form. And that’s always been the case, nothing has changed there.

But wasn’t it a lot easier to think about this stuff when to get a song you had to buy a record? And radio, which has always been free, was just radio? Then we could say to ourselves “If I hold it in my hand, I have to pay. If it comes out of the air, I don’t have to pay.” That was simple.

Today is not simple, but as soon as we can get our minds around what’s what, it’ll go back to being simple, because nothing has really changed, nothing is really different, we’ve just all gotten confused by the new stuff - like my grandmother got confused by the telephone with the speakerphone feature. It’s not really hard, just new. We’ll get it.

Yesterday’s post mentioned compulsory licensing for some written works. Such a system could be used to avoid lawsuits such as the one involving Google and it’s quest to digitize and index libraries. A summary of the basis for the suit is in a press release here, but the suit is still going on.

Imagine if there were a compulsory license system in place. Google decides to launch this library indexing project, it checks the statutory rates, pays into the copyright office the rate times the number of books in the library, and off they go. Authors are happy, Google is happy. Well, maybe Google is not happy, because right now they are taking the books for free. Oh wait, they’re not really saving money, though, because they are spending hundreds of thousands of dollars in legal fees to defend their “right” to not pay for use of the books.

Hmmm . . .

Why wouldn’t Google just take the hundreds of thousands of dollars they are spending anyway and give it to the authors?

Hmmmm .. . . .

Maybe because establishing that they have a right to do it fro free means they can get more things for free in the future. I wonder what Google will be digitizing next?

The Washington Post reports that a copyright suit involving the James Joyce estate was settled last week. The estate had been sued by an academic scholar who wanted to use portions of unpublished documents from the estate in a book about Joyce’s work. The estate had refused to agree to the use. The writer sued the estate, asserting that their refusal to allow the use of the material in a scholarly work was a misuse of their copyright. Essentially, her argument was that sometimes a copyright holder cannot withhold permission to use the work.

This is a new legal theory, but not entirely without precedent. The compulsory licensing provisions for music that are currently part of the copyright statute do this very thing. Music copyright holders can prevent use of the music as long as it has not been recorded and publicly released, but once that happens, anyone can get a compulsory license to re-record the music.

The compulsory licenses do require payment to the copyright holders, but it takes away their right to control the use of the work. The Joyce case would have made a similar argument for certain written works. Frankly, I don’t see a difference in the two. If music copyright holders are required to allow the use of their music, written copyright holders should be as well. Is there a difference in the nature of the work or the market? You tell me.

Record labels, through the industry group the Recording Industry Association of America (RIAA), started a new initiative about a month ago aimed at illegal music downloading by college students. You may remember a few years ago when the labels began filing lawsuits against college students for copyright infringement. The industry took quite a bit of criticism for the tactic. This time around, they have designed a pretty interesting set up. Having identified alleged infringers through ISP addresses, the RIAA is sending letters to individual users through the University where the ISP is located. The University is then asked to pass the letters on to the specific individuals.

The letters are what the RIAA is calling “pre-litigation settlement letters.” In other words, no lawsuit has been filed, but the RIAA informs the recipient that if the claim is not settled, then a lawsuit will be filed. Now here’s the interesting part: a website has been set up where letter recipients can find additional FAQ’s and can even settle and pay up right online.

While the FAQ does advise the recipients that it could be helpful to them to talk to a lawyer about the settlement demand, it also goes on to spell out that if they settle now, there would be no public record of the claim against them, and therefore no one, including their parents, would ever need to know about it.

I’m all for innovative dispute resolution, and I give the RIAA kudos for this system, but I still have mixed feelings about some of it. I think I would feel better if the RIAA had gone as far as to hire an independent law firm to write the FAQ’s for the recipients.

This morning at 10 am Eastern time the US House Judiciary committee will be looking into the compulsory licensing provision of the copyright act and its future in the digital age. Find a link to the live webcast here.

While you’re waiting for the hearing to start, you may want to read a little more history on the issue. These are remarks given last May to the same committee as they worked on the challenges of harmonizing copyright law and the new digital marketplace.

Marybeth Peters, the US Register of Copyrights (that’s the head of the copyright ofice), will be testifying tomorrow before the House Judiciary subcommittee on Courts, the Internet, and Intellectual Property. The topic is “Reforming Section 115 of the Copyright Act for the Digital Age” , and she is the only witness. Section 115 deals with the compulsory mechanical and DPD licensing of sound recordings.

This is not the first time that Congress has heard testimony on this section. Peters presented testimony on this section in 2004, and her remarks, available here, give a good history of the license.

The committee hearing tomorrow may be available on live webcast at 10am. Check back tomorrow and I’ll post the link if it is being broadcast.

This past Friday evening I had the pleasure of attending a talk by Marybeth Peters, the US Register of Copyrights. The Register of Copyrights is the Person In Charge of the copyright office, which is actually a part of the Library of Congress. In that role, she is not only responsible for the work of administering the many copyright applications that come in, but she is also responsible for advising members of Congress on policy and interpretation of the copyright laws. Peters has been with the copyright office since the beginning of her legal career in 1964, and has been the Register of Copyrights since 1994. She is arguably the top expert on copyright in the country.

Peters’ message is simple: that the principle of copyright is to give creators the control over their work necessary to enable them to make a living at their craft, and that principal is in danger because we have begun to create a statutory system that cannot be understood by the average person (or lawyers either, for that matter). If the people can’t understand the law, then they won’t obey it.

Peters sees the challenge of the digital age as making the copyright law work with the new technologies, but to make sure the law is clear and administratively do-able. If the law is vague and administratively cumbersome, then people who would otherwise want to do things the right way will throw up their hands and say “I’ll just take it for free.”

Peters also warns that the underlying principle of copyright should not be pushed out of sight. She fears that the true agenda of many of the companies involved in infringement lawsuits is much larger than the issues in the suits themselves, and that the entire framework of copyright law may be under attack.

The use of music recordings and performances has been the biggest battleground in the last ten years, starting with the Napster case. Peters points out that Napster brought the concept of copyright to the average person in a way that has never before happened in history. Although there have been raging copyright issues in the past, the development of the internet and person to person technology has involved the individual user in a way that has never before been the case.

The danger in that is that the average person doesn’t understand copyright well enough to form thoughtful opinions, and I personally believe that large companies are exploiting that lack of knowledge to start a backlash against copyright laws.

The basic underlying principle behind our copyright laws is to encourage creative work by making it so that the people who create can make a living by controlling the use and sale of their works.

We’re in the midst of a revolutionary expansion of ways and means to distribute information, including creative works protected by copyright. This means the opportunity to make music, books and photos available to ever greater audiences with relatively small cost compared to traditional distribution channels. Ordinarily in the business world, the opening of new markets leads to expanded productivity and expanded profits. The irony I find in our digital technology is that while the opportunity for creative works to be distributed to a wider audience should have created more revenue for the creators, what we are actually seeing is big businesses exploiting a confusing moment in time to try and cut the creators out of the money stream. Starting with Napster in the mid-90’s, much of the legal activity over digital technology and copyright law has involved these big businesses trying to avoid paying for the use of works that they have always in the past paid for. I love free music as much as the next guy, but if it’s all free then something is wrong. I occasionally get a freebie from my local store, but if I loaded up my basket and walked out without paying everytime, I know the store would go out of business.

College students and private music lovers are not hurt by having to continue to pay for music. We still need a good model for doing so when digital file exchange is so simple (but we weathered the introduction of cassette tape recording, so I expect we’ll weather this, too). The challenge is to make sure that the actual creators benefit from the model we choose. Napster wasn’t trying to protect the rights of college students, it was trying to protect its access to free products to sell. Other companies are still carrying that banner, in lawsuits going on today.

Record Companies and search engines and internet based businesses are not the ones who need copyright laws to protect their ability to make a living. The ones who need copyright law to protect their ability to make a living from their work are the novelists, freelancers, musicians, songwriters, photographers, and artists. Don’t ever let them slip away in the undertow.

A few months ago, House Speaker Nancy Pelosi posted clips from a C-SPAN recording of US House proceedings on her webblog. C-SPAN claimed that she had infringed its copyright in the recording. Mud-slinging ensued between Republicans and Democrats, because nothing in Washington avoids political spin, but C-SPAN has now changed its policies to allow the use. In fact, it now expressly allows “non-commercial copying, sharing, and posting of C-SPAN video on the Internet, with attribution.” C-SPAN press release.

William Patry, a copyright attorney whose past includes stints at various federal government agencies, including the US House of Representatives, makes an interesting point about C-SPAN’s generous grant of copyrights – they may not have any rights to grant. His argument that the mere recording of events, with no creative input into the recording or the way the material is presented, does not meet the requirement of a “creative work” that is even subject to copyright protection.

Just as pure compilations of publicly available data, such as phone books, are not subject to copyright protection, Patry argues that the mere recording of a public event is similarly not entitled to copyright. You can read his whole commentary on The Patry Copyright Bog.

The threshold for “creative” is pretty low. Courts have very clearly said that a work does not have to be good, or even close to good, to meet the test – but there is a threshold, and it’s good to be reminded.

As the holder of the copyright, an author can grant or deny permission to use the work as he or she sees fit (although fair use does allow some uses irrespective of the author’s wishes). It’s easy to forget sometimes while reading news story after news story of big publishers suing to keep copyrights safe, but some authors don’t mind the copying of their works. In fact, some authors encourage the copying and distribution of their works. Some authors even grant certain rights to use their work right in the copyright notice itself. Below is the copyright notice that appears on a work entitled “Campus Copyright Rights and Responsibilities: A Basic Guide to Policy Considerations”:

“Copyright of the material in this booklet is held jointly by Association of American Universities, the
Association of Research Libraries, the Association of American University Presses, and the Association
of American Publishers. Permission is granted to reproduce and distribute copies of the work in its
entirety for nonprofit educational or library purposes, provided that copies are distributed at or below
cost, that the copyright notice is included on each copy, and that no alterations or modifications in the
text are made.”

If you are thinking about using portions of a work for your classroom, always start by checking the copyright page of the book, or the copyright notice of an online source, to see if they have already granted the rights you need.

The Association of American Publishers (AAP) has a resource page with links to templates and checklists to use in requesting permission to use copyrighted works. If you want to request permission from one of their member publishers, you can even submit the request on a form right through their website. Remember to keep copies of any permissions you receive.

Lest we get caught up in the trees and forget that we are in a forest, I’d like to step back from the fair use discussion for moment and refer readers to testimony given just last month to Congress by the Association of America Publishers (AAP). The chairman of the AAP, Pat Schroeder (yes, the former congresswoman) testified to alleged widespread piracy of books in China, estimated to be costing publishers $52 million a year from print piracy and another unknown amount from digital piracy (online downloads). The AAP is asking Congress to take steps to encourage China to enforce copyright and anti-piracy measures that are apparently being largely ignored.

The Harry Potter Wizards-in-Training
The hugely successful Harry Potter books are among those being pirated in China, along with academic journals and other less commercial publications.

Google and Microsoft are both involved in massive projects to digitize full libraries. Google, though, has been criticized for playing loose with the copyrights on some of those books. While both Google and Microsoft are digitizing public domain works, Microsoft claims to only be digitizing copyrighted works for which they have been given permission. Google, on the other hand is digitizing portions of copyrighted works without permission. They assert this is a fair use, because they are copying only small portions for indexing purposes.

I checked the Google search engine homepage, and found a copyright notice at the bottom of it – and the same copyright notice appeared at the bottom of the search pages I ran. Google’s search pages contain a list of sites, a portion of text from each site, the search box, and a few individual words used as links to other google pages, such as “search tips,” “language tools,” and “business solutions.” Not exactly the type of creative work envisioned by copyright law. So what is Google laying copyright claim to? I’m not sure. It’s ironic to me that they make a point to include a copyright notice on a webpage that does not appear to contain any material that would be subject to copyright (there are some trademarkable items on the page), while at the same time pushing “fair use” farther than some observers believe it should be pushed.

A court may yet determine that Google is within fair use standards, but it does make you wonder.