At Techdirt, Mike Masnick makes the case for reducing the swollen length of time current copyrights are protected:
We’ve pointed a few times in the past to a chart from William Patry’s book, looking at how frequently copyright was renewed at the 28 year mark back when copyright (a) required registration and (b) required a “renewal” at 28 years to keep it another 28 years. The data is somewhat amazing:
As you can see, very few works are renewed after 28 years. Only movies, at 74% are over the 50% mark. Only 35% of music and only 7% of books tells quite a story. It makes it quite clear that even the copyright holders see almost no value in their copyrights after a short period of time. It appears that the Bureau of Economic Analysis is coming to the same conclusion from a different angle. As Matthew Yglesias notes, as part of its effort to recalibrate how it calculates GDP, the BEA is considering money spent on the creation of content an “investment” in a capital good, which needs to be depreciated over the time period in which it is valuable. Frankly, I’m not convinced this is the smartest way to account for money spent on the creation of content, but either way, the BEA’s analysis provides some insight into the standard “economic life” of various pieces of content, which match up with the chart above in many ways.
Techdirt‘s Mike Masnick explains:
Andy Baio has an absolutely fantastic video presentation that he did recently for Creative Mornings/Portland on what he’s calling The New Prohibition. It’s half an hour long, but absolutely worth watching.
[. . .]
This video lets him talk a bit about the aftermath — to explain the true chilling effects of the threat and the eventual settlement. Baio is a creator. It’s in his blood. It’s what he’s always done, but after this he was afraid to create. Being threatened with a lawsuit, even if you believe you’re right, is a scary and possibly life-altering moment. Lots of people who have not been in those shoes think it’s nothing and that they could handle it. You don’t know.
As he notes in the talk, copyright law is probably the most violated law in the US after speeding and jaywalking (and I’m not even sure copyright infringement is really in third place in that list). But getting rung up for one of those gives you a “bad day” situation, not a ruined life. Copyright, on the other hand, can ruin your life. And chill your speech and creativity.
And this is the worst part: so many people, especially kids, are at risk. Baio also famously highlighted the prevalence of the phrase “no copyright intended” on YouTube. Tons of kids uploading videos use clips of music and videos with a phrase like that. Or with statements about fair use. Or with copyright law quotes. All, as he notes, to try to find that magic voodoo that wards off a possible lawsuit. Most of those people aren’t being sued.
But they could be.
Declan McCullagh on the mixed news from a recent court ruling:
U.S. customs officials must have a reasonable justification before snatching your laptop at the border and scanning through all your files for incriminating data, a federal appeals court ruled today.
The Ninth Circuit Court of Appeals ruled that Homeland Security’s border agents must have “reasonable suspicion” before they can legally conduct a forensics examination of laptops, mobile phones, camera memory cards, and so on.
Today’s opinion is a limited — but hardly complete — rejection of the Obama administration’s claim that any American entering the country may have his or her electronic files minutely examined for evidence of criminal activity. Homeland Security has said the electronic border searches could detect terrorists, drug smugglers, and people violating “copyright or trademark laws.”
Michael Geist explains:
… if someone wants to post a quote from Selley or anything else written by the National Post, they are now presented with pop-up box seeking a licence that starts at $150 for the Internet posting of 100 words with an extra fee of 50 cents for each additional word (the price is cut in half for non-profits).
[. . .]
None of this requires a licence or payment. In fact, the amount of copying is often so insubstantial that a fair dealing analysis is not even needed. Last year, the Federal Court of Canada ruled that several paragraphs from a National Post column by Jonathan Kay posted to an Internet chat site did not constitute copying a substantial part of the work. If there was a fair dealing analysis, there is no doubt that copying a hundred words out of an article would easily meet the fair dealing standard. In fact, the Supreme Court of Canada has indicated that copying full articles in some circumstances may be permitted.
I make no money from my blogging … in fact I pay money to maintain the web site. The idea of spending $150 per quotation from any source is pretty much a guarantee that I won’t be linking to that source very much at all. At about the same time the National Post brought in their pay-to-quote policy, they also launched a reader rewards program. The idea seemed to be that you log in to their site, it tracks everything you read and then you get a pony at the end of the day, or week, or month, or Baktun, or something. Or maybe not … I really didn’t pay too much attention.
Following up on an earlier post (“The case of the over-extended copyright“), The Economist explains why there is still legal wrangling going on over the copyright claims on Sherlock Holmes:
The situation is muddled by differing copyright regimes in America and elsewhere. No one disputes that the copyright has expired on Conan Doyle’s work anywhere where protection ceases 70 years after an author’s death (he died in 1930). Yet when America reformed its copyright rules in 1978 to introduce a “life plus” model in harmony with the rest of the world for works created starting in 1978, it retained its older term-limited system for property created between 1923 and 1977. Works produced within that range have had their expiration extended to a fixed 95-year term from first publication; anything produced earlier is in the public domain. This umbrella of protection covers ten Holmes stories published in America for the first time as part of The Case-Book of Sherlock Holmes in 1927. These stories are still under copyright until January 1st 2023.
[. . .]
The estate also asserts some trademark rights on the Holmes characters, but Mr Klinger confirms to your correspondent that this was not part of the license claim. Jennifer Jenkins, the director of Duke University’s Centre for the Study of the Public Domain, says trademark protection would be inapplicable, in any case. “Trademark law doesn’t fit what they’re claiming to own or what they’re trying to stop,” she says. Ms Jenkins also dismisses any copyright claim the estate might have to any pre-1923 elements of Holmes’s biography. “The problem is that Sherlock Holmes and Watson are quite clearly in the public domain.” The estate did not respond to a request for details about its intellectual property.
[. . .]
An expert in the duration of copyright terms in America, Peter Hirtle of Cornell University finds no basis for the Conan Doyle estate to claim general ownership over aspects of Holmes from stories that are in the public domain. “Let’s imagine that the fact that Holmes plays the violin was included for the first time in one of the copyrighted stories,” he says via e-mail, “then it can’t be included in any new story that draws on the public domain versions.” But if the “Company” stories rely entirely on public-domain elements, then the estate has no ground to stand on, he adds.
At Techdirt, Mike Masnick explains why publishers are losing their collective shit over a new bill that would require almost all government-funded research to be made generally available:
A year ago, we wrote about Rep. Mike Doyle introducing an important bill to provide public access to publicly funded research. As we’ve been discussing for years, the academic journal business is a huge boondoggle. Unlike just about any other publication, the journals don’t pay their writers (and in many subject areas, authors need to pay to submit), they don’t pay the peer reviewers — and then they charge positively insane amounts to university libraries, often knowing that those libraries feel obligated to pay. Oh yeah, and the journals keep the copyright on everything. I’ve heard of researchers having to redo basic experiments because they were worried they couldn’t even reuse data from earlier experiments due to the copyright assignment agreement they had to sign.
Thankfully, for years, there’s been a law on the books for any NIH-funded research to guarantee that 12-months after publication, those works also had to be published openly. While some publishers have tried to game this system (such as by demanding a mandatory fee to “deposit” the work in an open access database), on the whole this has been hugely important in making sure that taxpayer funded research is actually available and can be built upon. Over the years, there have been multiple bills introduced in both directions on this issue. There have been some bills that sought to take away this requirement under NIH funding and there have been bills that have tried to expand it to the rest of the federal government and any of the research they sponsor.
[. . .]
But, of course, the publishers are really not happy about all of this, calling it “different name, same boondoggle.” This is quite incredible, really, since it’s really the publishers who have been getting away with a giant boondoggle for ages. If that gives you an idea about just how ridiculous the publishers’ claims are, read on. Nearly every claim they make in attacking the bill actually applies to the publishers themselves much more than to the bill [. . .]
Basically, the publishers know that their current position with these journals is such a sweet deal that they don’t want anything to mess with it at all. That’s ridiculous. While they’re fighting for ever bigger profits, we’re talking about access to research that was funded with our own dollars. It’s really sad that the publishers would fight such a thing, though it shows what they really think concerning education. To them, it’s not about how best to disseminate information, but how to lock it up and charge insanely high prices for it.
In this story, Sherlock Holmes and Doctor Watson encounter a true mystery: why the heirs of author Sir Arthur Conan Doyle are still able to pressure publishers for licensing fees long after the original stories should have been fully in the public domain:
It isn’t often one gets a ringside seat at a legal-literary battle royal, but it would seem that we’re about to bear witness to some activity in that particular area.
Of course, you’ll recall that recent legal battles in England have revolved around Undershaw, Conan Doyle’s home for about a decade that included when he wrote The Hound of the Baskervilles. [. . .] But this is wholly different.
The noted Sherlockian scholar, Baker Street Irregular and prominent attorney Leslie Klinger, editor of The New Annotated Sherlock Holmes, The Sherlock Holmes Reference Library and The Grand Game: A Celebration of Sherlockian Scholarship, to name a few, has filed a civil lawsuit against the Conan Doyle Estate to determine that the characters of Sherlock Holmes and Dr. Watson are in fact in the public domain.
Currently, the so-called estate undertakes high-handed legal action to levy royalties and other payments from authors who use the characters in their own works. This is despite the fact that there are only 10 stories in the entire Canon that are still under copyright protection (in the United States). Klinger, for one, will not stand for this bullying, and has formally filed suit and issued a press release.
H/T to Tim Harford (and Cory Doctorow) for the link.
The descendents of the designer of the original Bluenose are in court to demand the “copyright, and the moral rights in the copyright work” of the vessel which probably should be called the “Bluenose III“:
The Bluenose sank to the bottom in 1946; the replica Bluenose II was built in 1963, and then rebuilt in recent years and launched from the Lunenburg wharf this past September amid much fanfare and, as the province’s accountants could tell you, serious cost overruns.
No matter. This was a gala affair. Only Joan Roué and her father, Lawrence J. Roué — grandson of William J. Roué — were not among the smiling guests and proceeded to file suit against the province, the boat designers and boat builders in October, alleging that despite “the province owning the vessel … Joan and Lawrence Roué allege that they are respectively entitled to the copyright, and the moral rights in the copyright work” associated with the latest incarnation of the famous schooner.
To which the province responded — and I am paraphrasing here — “are you people kidding me?” while contending in court filings that William J. Roué’s storied original design perhaps wasn’t all that original to begin with, and, even if it were a singular masterpiece, that he had already been paid for it decades ago.
I posted about the “new” Bluenose II last year, explaining why I think they should have incremented the number in the vessel’s official name:
Wooden sailing ships are subject to far more wear and tear than modern vessels: they’re like the old tale of the farmer’s axe (even though everything’s been replaced over time, it’s still the same axe). This means that heritage sailing ships need lots of careful maintenance throughout their lives, and major re-builds at long intervals. In the case of Nova Scotia’s iconic Bluenose II, however, it’s sometimes more than a “rebuild” [...] So, just to sum up: she’s being built to a different design (even though outward appearance is much the same), using different materials. In what way can you call her the same ship? The point made in the article, that the masts and sails were some of the “originals” being re-used is odd: those are among the parts that need replacing more often. And the mahogany and walnut saved from the last boat are almost certainly decorative elements, not structural ones.
Michael Geist reports on a recent lobbying attempt that should be thrown out with contempt if we lived in a just world:
The deadline for comments on Industry Canada’s draft anti-spam regulations passed earlier this week with a group of 13 industry associations — including the Canadian Chamber of Commerce, the Canadian Marketing Association, the Canadian Wireless Telecommunications Association and the Entertainment Software Association of Canada — submitting a lengthy document that, if adopted, would gut much of the law. The groups adopt radical interpretations of the law to argue for massive new loopholes or for the indefinite delay of several provisions. I will focus on some of the submissions shortly, but this post focuses on the return of an issue that was seemingly killed years ago: demands to permit surreptitious surveillance by the copyright owners and other groups for private enforcement purposes.
During the anti-spam law debates in 2009, copyright lobby groups promoted amendments that would have allowed for expansive surveillance of user computers. Coming on the heels of the Sony rootkit scandal, the government ultimately rejected those proposals (the Liberals had plans to propose such amendments but backed down), leaving in place an important provision that requires express consent prior to the installation of computer software.
[. . .]
The Canadian Chamber of Commerce and other business groups want to ensure that the anti-spam law does not block their ability to secretly install spyware on personal computers for a wide range of purposes. In doing so, these groups are proposing to turn the law upside down by shifting from protecting consumers to protecting businesses. The comment period on the draft regulations may have closed, but it is not too late to tell Industry Minister Christian Paradis or your local Member of Parliament to reject demands that would gut the anti-spam bill and legalize spyware for private enforcement purposes.
At Techdirt, Tim Cushing explores the legal phase changes that introduce heretofore unknown states of copyright:
Eric Hellman tackles the ambiguous nature of copyright infringement, especially as it pertains to the “region-free” aspects of the internet, in a post amusingly titled, “Heisenberg’s Uncertain Copyright.” (via The Digital Reader)
Hellman turns his attention to F. Scott Fitzgerald’s The Great Gatsby, and using his skills in the area of “Quantum Copyright” (a term he threw into his LinkedIn profile for a bit of fun), determines that the question of whether or not copyright infringement has occurred might depend on where the copying occurred, something that is even harder to define when the copying takes place via the internet.
[. . .]
While Hellman exaggerates the repercussions of making a hypothetical copy (the highest statutory claims would apply only to willful infringement [which this could be, especially when infringing in order to prove a hypothesis] and the jail time only applies to criminal infringement — which this almost certainly would not be), the fact remains that one deterrent of infringement is the underlying threat of legal action (whether civil or criminal). No doubt F. Scott Fitzgerald’s estate is in no hurry to give up the American rights (and the attendant enforcement of those rights), seeing as The Great Gatsby earned its author all of $8,400 during his lifetime — but generates $500,000 per year for his daughter. This secondhand largesse enjoyed by many heirs is one of the motivators behind the ever-extending copyright lengths here in this country.
[. . .]
Certainly, copyright-centered entities like the MPAA would prefer to simply have our copyright laws exported to other countries with less stringent laws, especially any sections that extend the length of copyright protection and weaken fair use/fair dealing exceptions. Getting other nations to sync up with our copyright lengths would certainly eliminate these hypothetical discussions, along with many items in the public domain. Many aspects of current copyright laws were written years ago, long before the internet made “country of origin” a meaningless term and reproductions as simple as a right-click on a mouse. What it usually boils down to, after all the discussion, is this:
Much like fair use is often determined by a courtroom appearance, the “quantum” aspects of copyright are largely theoretical — right up to the point that someone finds themselves at the other end of an infringement lawsuit.
Virginia Postrel charts the ever-expanding copyright protections under US law:
Even as digital technology has made reproducing, remixing and repurposing creative works easier — with potentially enormous benefits for consumers and producers of new works — the monopoly privileges of copyright have expanded. The result is a bizarre combination of rampant copyright violations, frequent encroachment on legitimate fair use, suppression of new technologies and business models, and the ever-present threat of draconian penalties.
Consider how the law applies to Robert Frost’s classic poem “Stopping by Woods on a Snowy Evening,” first published in 1923. Back then you only got copyright privileges for works officially registered with the copyright office, and only for a term of 28 years, which could be renewed if you filed again, as Frost did in 1951.
Requiring such simple procedures reserved copyright privileges for creators with strong commercial or sentimental interests in limiting the publication of their works. Today, by contrast, copyright automatically applies to every eligible work, including your vacation snapshots and your 4-year-old’s handmade Mother’s Day card.
Under the law when Frost wrote his poem and renewed the copyright on the volume including it, it would have presumably entered the public domain in 1979, more than a decade after its author’s death in 1963. That’s not what happened. Beginning in 1962, Congress gradually extended copyright terms, and in 1976 it passed a new copyright act that gives works already under copyright a new term of 75 years from their first publication. That meant “Stopping by Woods” wouldn’t go into the public domain until 1998.
That’s not what happened either. Just as the poem’s copyright was about to expire, Congress passed the Sonny Bono Copyright Term Extension Act, which gave existing works a new copyright term of 95 years. (The 1923 Frost volume including the poem was one of the works cited in a lawsuit unsuccessfully challenging the act’s constitutionality.) So Frost’s poem won’t enter the public domain until 2018 — assuming that Congress doesn’t pass yet another extension.
If you’re not going to read the entire body of the law (and let’s face it, most of us would rather do just about anything other than that), here’s a thumbnail summary of what the new law says:
The good news is that the law now features a wide range of user-oriented provisions that legalize common activities. For example, time shifting, or the recording of television shows, is now legal under Canadian copyright after years of residing in a grey area. The law also legalizes format shifting, copying for private purposes, and the creation of backup copies. This will prove helpful for those seeking to digitize content, transfer content to portable devices, or create backups to guard against accidental deletion or data loss.
Canadians can also take greater advantage of fair dealing, which allows users to make use of excerpts or other portions of copyright works without the need for permission or payment. The scope of fair dealing has been expanded with the addition of three new purposes: education, satire, and parody.
Fair dealing now covers eight purposes (research, private study, news reporting, criticism, and review comprise the other five). When combined with the Supreme Court of Canada’s recent decisions that emphasized the importance of fair dealing as users’ rights, the law now features considerable flexibility that allows Canadians to make greater use of works without prior permission or fear of liability.
The law also includes a unique user generated content provision that establishes a legal safe harbour for creators of non-commercial user generated content such as remixed music, mashup videos, or home movies with commercial music in the background. The provision is often referred to as the “YouTube exception”, though it is not limited to videos.
Radley Balko linked to this story on Twitter, nominating it for the most “incredibly dumb IP story of the day“. Hard not to agree, possibly even upping that nomination to “of the month” or possibly even “of the year”. Techdirt‘s Mike Masnick has the details:
One of the reasons why we live in such an innovative society is that we’ve (for the most part) enabled a permissionless innovation society — one in which innovators no longer have to go through gatekeepers in order to bring innovation to market. This is a hugely valuable thing, and it’s why we get concerned about laws that further extend permission culture. However, according to the former Register of Copyrights, Ralph Oman, under copyright law, any new technology should have to apply to Congress for approval and a review to make sure they don’t upset the apple cart of copyright, before they’re allowed to exist. I’m not joking. Mr. Oman, who was the Register of Copyright from 1985 to 1993 and was heavily involved in a variety of copyright issues, has filed an amicus brief in the Aereo case (pdf).
[. . .]
But he goes much further than that in his argument, even to the point of claiming that with the 1976 Copyright Act, Congress specifically intended new technologies to first apply to Congress for permission, before releasing new products on the market that might upset existing business models:
Whenever possible, when the law is ambiguous or silent on the issue at bar, the courts should let those who want to market new technologies carry the burden of persuasion that a new exception to the broad rights enacted by Congress should be established. That is especially so if that technology poses grave dangers to the exclusive rights that Congress has given copyright owners. Commercial exploiters of new technologies should be required to convince Congress to sanction a new delivery system and/or exempt it from copyright liability. That is what Congress intended.
This is, to put it mildly, crazy talk. He is arguing that anything even remotely disruptive and innovative, must first go through the ridiculous process of convincing Congress that it should be allowed, rather than relying on what the law says and letting the courts sort out any issues. In other words, in cases of disruptive innovation, assume that new technologies are illegal until proven otherwise. That’s a recipe for killing innovation.
An interesting article in The Economist:
As an expert on intellectual property, Mr Weinberg has produced a white paper that documents the likely course of 3D-printing’s development — and how the technology could be affected by patent and copyright law. He is far from sanguine about its prospects. His main fear is that the fledgling technology could have its wings clipped by traditional manufacturers, who will doubtless view it as a threat to their livelihoods, and do all in their powers to nobble it. Because of a 3D printer’s ability to make perfect replicas, they will probably try to brand it a piracy machine.
[. . .]
As with any disruptive technology — from the printing press to the photocopier and the personal computer — 3D printing is going to upset existing manufacturers, who are bound to see it as a threat to their traditional way of doing business. And as 3D printing proliferates, the incumbents will almost certainly demand protection from upstarts with low cost of entry to their markets.
Manufacturers are likely to behave much like the record industry did when its own business model — based on selling pricey CD albums that few music fans wanted instead of cheap single tracks they craved — came under attack from file-swapping technology and MP3 software. The manufacturers’ most likely recourse will be to embrace copyright, rather than patent, law, because many of their patents will have expired. Patents apply for only 20 years while copyright continues for 70 years after the creator’s death.
[. . .]
In that, the record industry was remarkably successful. Today, websites and ISPs have to block or remove infringing material whenever they receive a DMCA takedown notice from a copyright holder — something that happens more often than actually justified. Google reckons that more than a third of the DMCA notices it has received over the years have turned out to be bogus copyright claims. Over a half were from companies trying to restrict competing businesses rather than law-breakers.
Rallying under the banner of piracy and theft, established manufacturers could likewise seek to get the doctrine of “contributory infringement” included in some expanded object-copyright law as a way of crippling the personal-manufacturing movement before it eats their lunch. Being free to sue websites that host 3D design files as “havens of piracy” would save them the time and money of having to prosecute thousands of individuals with a 3D printer churning out copies at home.
This is just too amusing not to share: