Quotulatiousness

November 13, 2012

Michael Geist on Canada’s new copyright law

Filed under: Cancon, Law, Media — Tags: , , , , — Nicholas @ 11:52

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.

September 30, 2012

Innovative idea? Better get congressional approval before you go to market

Filed under: Bureaucracy, Law, Liberty, USA — Tags: , , , , — Nicholas @ 11:27

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.

September 11, 2012

Manufacturers may follow the music industry pattern

Filed under: Business, Law, Liberty, Technology — Tags: , , , , , — Nicholas @ 00:03

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.

September 8, 2012

Fifty shades of legal action

Filed under: Books, Humour, Law, Media — Tags: , , , — Nicholas @ 11:45

This is just too amusing not to share:

September 7, 2012

Jesse Kline: Consumers the biggest losers in Apple-Samsung battle

Filed under: Business, Law, Technology — Tags: , , , , — Nicholas @ 00:07

In the National Post, Jesse Kline points out that the grubby legal dispute between Apple and Samsung may end up hurting the consumer much more than either of the combatants:

Software is unique because it is covered under both copyright and patent law. Computer software is written in a human-readable language, called source code, that is then translated by the computer into something the machine can understand. Much like writing a book, or newspaper article, source code is automatically covered under copyright law.

But no one is alleging that Samsung copied Apple’s code. What Samsung was sued for was achieving the same outcome as Apple, even though it was done in a different way. In this literary world, this would be akin to someone being sued for violating the copyright on Harry Potter, just because they wrote their own story about a boy wizard.

Intellectual property laws are supposed to encourage innovation by allowing companies and individuals to profit off works that may have cost a significant amount of money to develop. Apple says it was undercut in price because its competitor simply copied its design. In actual fact, Android was cheaper to produce because it is based on the open source Linux operating system, which saved money compared to Apple proprietary system.

For its part, Samsung accuses Apple of resorting “to litigation over market competition in an effort to limit consumer choice.” It’s one thing for the legal system to protect new inventions and original works, but this is quite clearly a case of a company engaging in anti-competitive behaviour.

August 11, 2012

The Broadcasting Treaty zombie rises from the grave

Filed under: Law, Media, Technology — Tags: , , , , , — Nicholas @ 09:31

Cory Doctorow explains why we still need to fight against WIPO’s latest attempt to gain even more legal rights over content:

The UN’s World Intellectual Property Organization’s Broadcasting Treaty is back. This is the treaty that EFF and its colleagues killed five years ago, but Big Content won’t let it die. Under the treaty, broadcasters would have rights over the material they transmitted, separate from copyright, meaning that if you recorded something from TV, the Internet, cable or satellite, you’d need to get permission from the creator and the broadcaster to re-use it. And unlike copyright, the “broadcast right” doesn’t expire, so even video that is in the public domain can’t be used without permission from the broadcaster who contributed the immense creativity inherent in, you know, pressing the “play” button. Likewise, broadcast rights will have different fair use/fair dealing rules from copyright — nations get to choose whether their broadcast rights will have any fair dealing at all. That means that even if you want to reuse video is a way that’s protected by fair use (such as parody, quotation, commentary or education), the broadcast right version of fair use might prohibit it.

Worst of all: There’s no evidence that this is needed. No serious scholarship of any kind has established that creating another layer of property-like rights will add one cent to any country’s GDP. Indeed, given that this would make sites like Vimeo and YouTube legally impossible, it would certainly subtract a great deal from nations’ GDP — as well as stifling untold amounts of speech and creativity, by turning broadcasters into rent-seeking gatekeepers who get to charge tax on videos they didn’t create and whose copyright they don’t hold.

August 7, 2012

Overzealous copyright enforcement

Filed under: Law, Space, USA — Tags: , , , — Nicholas @ 09:36

Even copyright-free NASA footage can be taken down for copyright infringement. Brid-Aine Parnell at The Register explains the fast-trigger-finger-goof:

YouTube was a bit keen in the prosecution of copyright laws during NASA’s victorious Curiosity rover landing yesterday morning, booting the first video excerpt of the livestream off its site for infringing a news service.

NASA’s video coverage and pics are actually generally copyright-free, which made the overzealous bot takedown even more ironic as it pulled the video from the space agency’s channel for infringing on the rights of Scripps Local News.

The problem, which took a few hours to fix, was flagged by online magazine Motherboard, which spotted a message on the video declaring: “This video contains content from Scripps Local News, who has blocked it on copyright grounds”.

July 25, 2012

Reason.tv: Fan fiction versus copyright

Filed under: Books, Cancon, Law, Liberty, Media — Tags: , , , , — Nicholas @ 09:34

“It takes a big studio to make The Avengers, but it doesn’t necessarily take a big studio to write a piece of Avengers fan fiction,” says Georgetown University law professor and fan fiction advocate Rebecca Tushnet. “Big content companies largely recognize that fan activities are really good for them because they engage people.”

The growing popularity of fan fiction, a genre in which fans create their own stories featuring characters or settings from their favorite works of popular culture, raises thorny copyright issues. “Given how broad copyright is now, it’s now possible to say fan fiction is an infringing derivative work,” Tushnet explains. “In order to deal with that…we now talk about fair use, which allows people to make fair, limited uses of works without permission from the copyright owner.”

As a member of the Organization for Transformative Works, Tushnet works to defend fan fiction creators caught in the legal debate between protected intellectual property and fair use.

July 4, 2012

ACTA rejected decisively by European Parliament

Filed under: Europe, Law, Media — Tags: , , , , — Nicholas @ 09:37

Apparently even the insulated, protected European Parliament can be moved if enough people are actively against something — in this case it was the Anti-Counterfeiting Trade Agreement (ACTA). Michael Geist explains:

When ACTA was formally signed by most participants in October 2011 in Tokyo, few would have anticipated that less than a year later, the treaty would face massive public protests and abandonment by leading countries. But with tens of thousands taking to the streets in Europe earlier this year, ACTA became the poster child for secretive, one-sided IP agreements that do not reflect the views and hopes of the broader public. This morning, the European Parliament voted overwhelmingly against the agreement, effectively killing ACTA within the EU. The vote was 478 against, 39 in favour, with 165 abstentions. This is a remarkable development that was virtually unthinkable even a year ago. Much credit goes to the thousands of Europeans who spoke out against ACTA and to the Members of the European Parliament who withstood enormous political pressure to vote against the deal.

The European developments have had a ripple effect, with the recent Australian parliamentary committee recommendation to delay ACTA ratification and the mounting opposition around the world. ACTA is not yet dead — it may still eke out the necessary six ratifications in a year or two for it to take effect — but it is badly damaged and will seemingly never achieve the goals of its supporters as a model for other countries to adopt and to emerge as a new global standard for IP enforcement. That said, ACTA supporters will not take today’s decision as the final verdict. In the coming weeks and months, we can expect new efforts to revive the agreement within Europe and to find alternative means to implement its provisions. That suggests the fight will continue, but for today, it is worth celebrating how the seemingly impossible — stopping a one-sided, secretly negotiated global IP agreement — became possible.

This has been referred to as the biggest parliamentary defeat ever for a European Commission initiative. In theory, the ACTA treaty cannot be enacted into EU law without being approved by the European Parliament (although, as we’ve seen before, the EU is adept at getting around minor inconveniences like referenda and recalcitrant national governments).

June 28, 2012

What did Canada give up to get “2nd class seating” in the TPP negotiations?

Filed under: Cancon, Economics, Pacific, USA — Tags: , , , , — Nicholas @ 10:27

Michael Geist on the Canadian concessions to get a seat at the kiddy table for the Trans Pacific Partnership free trade negotiations:

…the benefits for Canada are hard to identify. The price of admission was very steep — Canada appears to have agreed to conditions that grant it second-tier status — and the economic benefits from improved access to TPP economies are likely to be relatively minor since we already have free trade agreements with four of the ten participants.

Given those conditions, why aggressively pursue entry into the negotiations?

[. . .]

Given Canada’s late entry into the TPP process, the U.S. was able to extract two onerous conditions that Prime Minister Stephen Harper downplayed as the “accession process.” First, Canada will not be able to reopen any chapters where agreement has already been reached among the current nine TPP partners. This means Canada has already agreed to be bound by TPP terms without having had any input. Since the TPP remains secret, the government can’t even tell us what has been agreed upon. [Scott Sinclair reports that the commitment is even broader, covering any chapter where provisions have been agreed upon]

Second, Canada has second-tier status in the negotiations as the U.S. has stipulated that Canada will not have “veto authority” over any chapter. This means that should the other nine countries agree on terms, Canada would be required to accept them.

This condition could be used to stop Canada from joining forces with another country on a tough issue during the late stages of the negotiation. For example, Canada and New Zealand both have copyright terms that last for the life of the author plus an additional 50 years. The U.S. has proposed that the TPP mandate a term of life plus 70 years. While Canada and New Zealand might be able to jointly block the extension, the U.S. could pressure New Zealand to cave on the issue and effectively force Canada to accept the change.

Getting rid of our government-mandated monopolies in the agricultural sector (a good thing) is not going to be worth the price of adopting American-style copyright legislation.

June 18, 2012

The wins and losses in the C-11 copyright reform bill

Filed under: Books, Cancon, Law, Liberty, Media — Tags: , , , , — Nicholas @ 10:14

Michael Geist on the good and the bad aspects of bill C-11 which will probably pass third reading today in the House of Commons and be sent to the Senate for approval:

There is no sugar-coating the loss on digital locks. While other countries have been willing to stand up to U.S. pressure and adopt a more flexible approach, the government, led by Canadian Heritage Minister James Moore on the issue, was unwilling to compromise despite near-universal criticism of its approach. It appears that once Prime Minister Stephen Harper made the call for a DMCA-style approach in early May 2010, the digital lock issue was lost. The government heard that the bill will hurt IP enforcement, restrict access for the blind, disadvantage Canadian creators, and harm consumer rights. It received tens of thousands of comments from Canadians opposed to the approach and ran a full consultation in which digital locks were the leading concern. The NDP, Liberals, and Green Party proposed balanced amendments to the digital lock rules that were consistent with international requirements and would have maintained protection for companies that use them, but all were rejected. [. . .]

Since the Conservatives took power in 2006, there were effectively four bills: the Pre-Bill C-61 bill that was to have been introduced by Jim Prentice in December 2007 but was delayed following public pressure, Bill C-61 introduced in June 2008, and Bill C-32/C-11, which was introduced in June 2010 (and later reintroduced in September 2011). The contents of December 2007 bill was never released, but documents obtained under the Access to Information Act provide a good sense of what it contained (a call was even scheduled on the planned day of introduction between Prentice and U.S. Ambassador David Wilkins to assure the U.S. that digital locks were the key issue and would not be altered). This chart highlights many of the key issues and their progression over the years as the public became increasingly vocal on copyright:

Issue Pre-Bill
C-61 (2007) 		Bill C-61
(2008) 		Bill C-11
(2012)
Fair Dealing Expansion No No Yes (education, parody, satire)
Format Shifting No Limited (only photographs, book,
newspaper, periodical, or videocassette) 		Yes (technology neutral, no
limit on number of copies, includes network storage, and no reference
to contractual overrides)
Time Shifting No Limited (no network PVRs,
Internet communications) 		Yes (C-61 limitations removed)
Backup Copies No No Yes
User Generated Content Exception No No Yes
Statutory Damages Cap No Limited ($500 cap for
downloading) 		Yes (Max of $5000 for all
non-commercial infringement)
Enabler enforcement provision No No Yes
Internet Publicly Available
Materials Exception for Education 		Yes Yes Yes
Public Performance in Schools No No Yes
Technology Neutral Display
Exception in Schools 		No No Yes
Limited Distance Learning
Exception 		Yes Yes Yes
Limited Digital Inter-Library
Loans 		Yes Yes Yes
Notice-and-Notice Yes Yes Yes
Notice-and-Takedown No No No
Three Strikes//Website Blocking No No No
Internet Location Tool Provider
Safe Harbour 		Yes Yes Yes
Broadcaster Ephemeral Change No No Yes
Expanded Private Copying Levy No No No
Commissioned Photograph Change Yes Yes Yes
Alternate Format Reproduction No No Yes

[. . .]

Public engagement on copyright continuously grew in strength – from the Bulte battle in 2006 to the Facebook activism in 2007 to the immediate response to the 2008 bill to the 2009 copyright consultation to the 2010 response to Bill C-32. While many dismissed the role of digital activism on copyright, the reality is that it had a huge impact on the shape of Canadian copyright. The public voice influenced not only the contents of the bill, but the debate as well with digital locks the dominant topic of House of Commons debate and media coverage until the very end. Bill C-11 remains a “flawed but fixable” bill that the government refused to fix, but that it is a significantly better bill than seemed possible a few years ago owes much to the hundreds of thousands of Canadians that spoke out on copyright.

Legal pratfalls ensue

Filed under: Law, Liberty, Media, USA — Tags: , , , , , — Nicholas @ 09:33

Scott H. Greenfield at the Simple Justice blog on how the legal equivalent of “two 12-year-olds rolling in the mud” morphed into a lawyer beclowning himself in an epic fashion:

But Matthew Inman, who does the Oatmeal, put the lawyer Charles Carreon’s letter demanding $20k on the web, with his own special touches, in a masterful response, one aspect of which was that rather than succumb to Carreon’s demand, he would raise some money for charity.

[. . .]

Three things to note: First, Carreon started suit in his own name, not that of his client, which suggest that this is for the wrong done him by the mean children of the internet. Second, he’s sued not only Inman, apparently for “incitement to cyber-vandalism,” but the Indiegogo, which handles charitable collections, as well as the two charities to whom Inman’s collection goes.

This is nuts. For a fellow who foolishly stepped in shit, he’s doubled quadrupled down. My guess is that he’s included the charities as stakeholders or beneficiaries of Inman’s actions, and wants the money collected to go to him rather than to fighting cancer or saving bears. He wants money collected to fight cancer to go to him instead. It’s unthinkable [that] anyone could do such a thing.

April 28, 2012

Charles Stross analyzes the economic and technical arguments for removing DRM on ebooks

Filed under: Books, Business, Economics, Media — Tags: , , , — Nicholas @ 00:08

A post at Charles Stross’s blog from earlier this week, when Macmillan announced that they were removing DRM from their ebook lines:

After I recommended that the major publishers drop mandatory DRM from their ebook products, I realized that my essay had elided a bunch of steps in my thinking, and needed to reconsider some points. Then I realized that it’s not a simple, straightforward argument to make. Consequently, I ended up writing another essay, although I’ve tried to summarize my conclusions below.

First, my conclusions:

1. The rapid current pace of change in the electronic publishing sector is driven by the consumer electronics and internet industry. It’s impossible to make long term publishing plans (3-10 years) without understanding these other industries and the priorities of their players. It is important to note that the CE industry relies on selling consumers new gadgets every 1-3 years. And it is through their gadgets that readers experience the books we sell them. Where is the CE industry taking us?

2. Dropping DRM across all of Macmillans products will not have immediate, global, positive effects on revenue in the same way that introducing the agency model did …

3. However, relaxing the requirement for DRM across some of Macmillans brands will have very positive public relations consequences among certain customer demographics, notably genre readers who buy large numbers of books (and who, while a minority in absolute numbers, are a disproportionate source of support for the midlist).

4. Longer term, removing the requirement for DRM will lower the barrier to entry in ebook retail, allowing smaller retailers (such as Powells) to compete effectively with the current major incumbents. This will encourage diversity in the retail sector, force the current incumbents to interoperate with other supply sources (or face an exodus of consumers), and undermine the tendency towards oligopoly. This will, in the long term, undermine the leverage the large vendors currently have in negotiating discount terms with publishers while improving the state of midlist sales.

Now the details:

April 20, 2012

Reason.tv: Too Much Copyright

Filed under: Law, Liberty, Media — Tags: , , , , , , , — Nicholas @ 07:45

“This disconnect between the public’s view of copyright and fair use and what should and should not be prosecuted, versus the ‘copyright maximist’ view of the law, is our generation’s Prohibition,” says Ben Huh, CEO and founder of Cheezburger and a loud voice in the recent backlash to SOPA and PIPA, two congressional bills aimed at curbing internet piracy.

Copyright exists to “promote the useful arts” according to the Constitution. But is it still doing that? And should the government protect so-called “intellectual property” in the same way it protects other forms of property? Reason.tv posed these questions to Ben Huh, as well as a professor and a movie studio representative.

Tom Bell, a law professor specializing in property law, has serious reservations about attempts by groups like the Motion Picture Association of America (MPAA) to equate property and copyright through ad campaigns admonishing viewers with messages like, “You wouldn’t steal a car. Downloading pirated movies is stealing.”

“As soon as we start using [the word] ‘copyright’ for ‘property,’ we start taking less seriously our property rights for things like cars and houses,” says Bell. “When you steal a candy bar or a car, you’ve left somebody without something to eat or something to drive.”

April 14, 2012

Colombia tries to butter up Obama with “quickie” SOPA rules

Filed under: Americas, Law, Liberty, Media, Technology — Tags: , , , , , , — Nicholas @ 10:26

Colombia buckles under intense US lobbying to introduce SOPA-like copyright rules in time for President Obama’s visit:

President Obama is heading to Colombia this weekend for a summit, and we’d been hearing stories that US officials had been putting tremendous pressure on Colombian officials to pass new, ridiculously draconian copyright laws ahead of that visit. So that’s exactly what the Colombian government did — using an “emergency procedure” to rush through a bad bill that is quite extreme.

Earlier this year, Colombia tried to pass basically the same bill, which was called LesLleras, after Interior Minister German Vargas Lleras (who proposed it). That bill was so extreme that it resulted in SOPA-like protests, following significant concerns raised by the public as well as copyright and free speech experts. So, this time around, the government just claimed it was an emergency and rushed the bill through, despite all of its problems. They seemed to think that the public wouldn’t notice — but they’re wrong.

As is typical of idiotic trade agreements pushed via the USTR — who only seems to listen to Hollywood on these issues — the copyright bill includes all sorts of draconian enforcement techniques and expansions of existing copyright law, and removal of free speech rights. But what it does not include are any exceptions to copyright law — the very important tools that even the US Supreme Court admits are the “safety valves” that stop copyright law from being abusive, oppressive and contrary to freedom of speech

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