Copyright Talk

Criminal law has long recognized alternate ways to get at persons who are probably doing something illegal but who can’t quite be caught doing it for one reason or another. High level crime bosses have frequently wound up in jail not for orderingt he killing of people or the importation and distribution of ilelgal substances, but for tax evasion. And remember the drug paraphernalia laws? Maybe the guy managed to flush all the drugs down the toilet while the police were breaking down the door, but the pipes and scales and cutting equipment were still in the house.

Drug paraphernalia laws are premised on the assumption that certain items have no legitimate legal use, so posession of those items can be made a crime since if you have those you probably also have - or had - drugs.

The Digital Millenium Copyright Act (DMCA) has its own drug paraphernalia provision, but it’s aimed at the companies that manufacure the devices rather than the person who bought it. The DMCA did not go so far as to ban recording devices, as some media companies have pushed in the past, but it does direct manufacturers to avoid products that specifically circumvent copyright controls that may be built into the media. In other words, it is illegal to manufacture a media player that includes the equivalent of a car radar detector.

Two media distribution companies are invoking this provision and warned Apple and Microsoft to stop manufacture of devices that circumvent copyright protection used on their media, according to a report at Forbes.com.

The Electronic Frontier Foundation opposes the section in its entirety as an infringement of free speech, among other things.

The courts have not yet ruled definitvely on this issue. We’ll be watching these developments closely.

A couple of days ago I mentioned the parodist/entertainer Weird Al Yankovick. Well, it turns out that copyright itself and the music downloading phenomenon has already been the topic of one of his pieces.

Personally, I think this song hits the heart of much of the problem that has arisen in the age of the personal computer - not a problem with copyright itself, but a problem with computer users who do not know enough about copyright law and protections before they never had to know much before. Even though paper copy machines and tape recorders and even cd burners have been around for a while, it wasn’t until the personal computer that we’ve reached a point where almost anything can be copied, easily and without leaving your home, and copied in high quality. This is new. So until the last ten years or so, the amount of illegal copying done by personal users was relatively small and mostly did not replace purchases tat would have otherwise been made. That’s no longer the case, and so we’re simply in a period where the sophistication of our populace needs to catch up with the technology.

I happened upon a band by the name of Copyright Death. It’s not a well known band. All it’s members go to Seneca College in Toronto, Canada. Their website does not list any shows. They do indicate they have an album coming out in the Fall, and they have just shot a music video. They do have over 200 friends on their MySpace site, though.

The reason I paused on this band is that I love the name. I imagined a dark yet clever social commentary on the questions and struggles of interpretation of copyright law, and the seeming assault on copyrights launched by some large (super-mega-gigantuan?) companies. A band, the archetype of social rebellion, is such a beautiful place to directly challenge whatever aspect of copyright they wanted to challenge.

But when I read through their sites, it turns out the only commentary being made by their name is that they were afraid their original name would be taken away from them because apparently something else laready had that name. So before their name was “copyright deathed,” they went ahead and named themselves “Copyright Death” as a preemptive strike.

Aside from being disappointed that the name meant no more than that, I find it sadly and yet hysterically ironic that if they actually had been required to give up their name because someone else had it first, it would have been because of trademark laws, not copyright laws.

Which means their name is neither fun social commentary nor even correct. Oh well. Maybe their music makes up for it.

Sixty-five years ago today, Irving Berlin registered the copyright for his song, “White Christmas.” The iconic Bing Crosby recording is the biggest selling single of all time, according to the Guiness Book of World Records. The song also won an Academy Award for Best Original Song in the 1942 movie “Holiday Inn.” The song was later used as the title and theme song for the movie “White Christmas,” released in 1954. That movie has now been adapted into a stage version performed throughout the country each winter. The song has been recorded by hundreds of different artists over the years, and sheet music sales may be incalculable. Even though fully half the US population lives in areas where there is no hope of an actual white Christmas (not withstanding the freak 2004 Christmas Eve snowfall in Corpus Christie, Texas), this song, probably more than any other, evokes the classic American Christmas ideal. Here’s to Irving Berlin. May all creative people touch such a human chord.

With more large media companies lining up across the table from YouTube and it’s parent company Google everyday, see the latest entries here, I thought it might be worth while to review what this lawsuit is about, and what is potentially at stake.

The Digital Millenium Copyright Act (DMCA), enacted in 1998, was designed to address many questions that arose with the computer age. One provision, known as the Safe Harbor, specifically lets internet service providers (ISP) - the companies that host websites - avoid charges of copyright infringement related to material posted on a website hosted by their company. In order to invoke this safe harbor, the ISP must have certain policies, including a procedure for removing material once they are notified that it is an infringement, and they must also have a kind of innocent bystander aura. In other words, the ISP can’t know about the existence of the infringement and merely wait until someone complains. At least, that is one interpretation of the Safe Harbor.

The Safe Harbor was an acknowledgment that the role of a web hosting company did not include direct participation in the individual websites or the content on those sites, making it different than the traditional, pre-millennium, publishing model, where editors had a hands on connection to the content they published. ZDNet has an excellent article on the history of the law as it relates to YouTube.

YouTube/Google relies on this Safe Harbor to defend claims of infringement by the big media companies. The individual posters, on the other hand, do not have a safe harbor other than a legitimate fair use defense for posting copyrighted material without permission. The Big Companies, however, would rather make YouTube/Google liable than go after potentially hundreds of thousands of individuals on an ongoing basis. The argument of the copyright owners is that if YouTube has knowledge that it’s site is being used for copyright infringement on a large scale basis, then it is participating in the infringement by letting it continue. YouTube argues that by having a policy prohibiting the posting of copyrighted material without permission, and by promptly removing infringing material as soon as it is notified, it has met it’s burden under the Safe Harbor.

Let’s see what the courts say.

Universities deal with myriad copyright issues every day and by the thousands. I imagine for many it’s an extremely difficult part of their job because of the forces working against them - a transient population, deeply rooted misconceptions about copyright, and a rapidly changing technology network that produced new questions almost daily, not to mention that the copyirght laws themselves are tricky to understand.

The University of Texas system gets my applause for developing a realtively simple to understand, very conversational document for both its professors and students on how to handle copyrighted material. My only complaint is the layout of the page itself, which could be more reader friendly, but if it bothers you, print the document and read it on a piece of actual paper. If you’re someone other than a lawyer, it would be time well spent for you to check this out.

Sometimes distinctions make no sense to me. Even though I may understand the distinction perfectly, my response is often “who the hell cares?”

So it is for me on the legal issue of parody versus satire. I normally defend inordinately picky legal distinctions, even when I disagree with the policy behind them. This one, though, really bugs me.

Parody is a recognized form of expression that pokes fun at something by reworking it. Weird Al Yankovic has made a career of parodying hit songs. Weird Al actually gets permission from the authors for all the songs he parodies, but the Supreme Court has clearly said that parody falls under fair use (Campbell v. Acuff-Rose Music, Inc. (1994)

Satire, on the other hand, is distinguished from parody in that it alters a work to poke fun at something else. In other words, if you want to make fun of the song “You’re Beautiful,” by James Blount, and you rewrite it to be “You’re Pitiful,” that’s a parody (it’s actually one of Weird Al’s parodies.) But if you want to make fun of President George Bush, and you did so by rewriting the “The Iliad” and “The Odessy” into “The Bushiad” and “The Idiossey”, that would be satire. Satire is not given the broad fair use exemption the way parody is. (The Iliad and the Odessy are not protected by copyright, by the way). Although some usage of a work for satirical purposes would fall under fair use, it would have to pass the ordinary inquiry into the four factors used by courts to determine fair use versus infringement (1 character of the use, 2. nature of the work, 3. how much of the work is used, and 4 effect of the use on the market for the original). With a parody, the factors are much more loosely applied.

Now, it does not make sense to me to apply different standards to parody and satire. Many of Weird Al’s songs are actually satire, but he can do that because he has permission to use the works in the first place. For the rest of us, we’d better know what we’re making fun of when we rewrite our favorite songs and post them on YouTube.

Most of my posts are about emerging issues in interpretation of the copyright laws. But let’s not forget that copyright laws primarily protect authors from outright theft of their intellectual property. Some copyright infringment needs no nuanced interpretation to find it squarely on the wrong side of the law.

A story from ExtremeTech.com tells of convictions against a number of people for selling copyrighted software through Ebay. What I find most interesting about this story is not the theft and convictions themselves, but the audacity with which people were apparently willing to buy stolen software. According to the story, one convicted seller “netted approximately $59,700 in profits. The actual retail value of this software was more than $7.6 million, FBI officials said.” Another other convicted seller “pocketed about $17,000—despite the fact that the actual retail value of the software he sold was nearly $8 million, FBI officials said. ”

The software being sold was not for individual personal use. It was factory management software. Which tells me that the people/companies buying this software through Ebay probably had at least a rough idea of the ordinary price of such software. And yet they bought it for literally pennies on the dollar. That has to set off bells in people’s heads - especially people who also run businesses and know that it is a rare ocassion to find any product selling for below cost.

Should buyers of questionably offered software also bear criminal responsibility?

Back in March of 2005, the Digital Media Association weighed in before Congress on the royalty rate debate for what I’ll call simply “playing” music. Among other things, they urged Congress to use the same rate for all players of music - whether traditional radio, internet, satellite, or cable. That approach has yet to be taken, but the DiMA continues to support changes that would, in their words, modernize the copyright royalty scheme. It’s a position worth checking out, here.

They are a trade organization, however, and their perspective is that of commercial entities working with digital media. However, I think they may have the best shot at looking seriously at ways to make the copyright laws “fit” our new technologies, since they are not on any of the traditional three branches of copyright interests - authors, sellers, or consumers.

A great outcry followed a ruling by the Copyright Royalty Board that significantly raised royalty rates for internet radio boradcasters. Refresh your memory on the story and the ruling here.
Congress will now consider legislation that would alter the new royalty rate and bring it closer to the royalty rates paid by satellite broadcasters.

Although the legislation has sponsors in both the House and Senate, and has bipartisan support, the internet broadcasters will still need to convince Congress of their arguments against the higher royalty rates - the same arguments that the Copyright Royalty Board found unconvincing. I think it is way too much to say that the future of music broadcasting over the internet is at stake, but the direction that future takes may very well be at stake. The debate in Congress is much more public than before the Copyright Royalty Board, so I’m looking forward to following this issue.

Last month a group of high school students filed a copyright infringement lawsuit against a company that archives student papers for purposes of plagiarism checking. I wrote about it here.

It turns out that the company has been around for a while, and at least one college specifically advised it’s professors not to use the service without receiving the voluntary consent of their students. My guess is numerous other colleges took the same approach.

I’m intrigued by the fact that the college professors sought legal advice, whereas the high school teachers apparently did not. Without knowing any numbers, I can’t say that this is a representative sample by any means, but it does point out the need to teach our citizens the basics of copyright law, so that they at least know when they MIGHT need to get a legal opinion on something. In this case the students are suing the company that checks the papers, and the company clearly should have known enough to do some due diligence checking on the legalities of their business model. But the students may also have a case against their teachers and their schools - now that’s a scary thought.