In my epic struggle to find a relevant example of parody, I turn up a number of great satires. Here I have one that skirts the line between the two (if such a line exists). Courtesy of Collegehumor.com, its a faithful frat version of Queen’s Bohemian Rhapsody. Before you click, you can read the lyrics below, and remember that this is frat humor; funny only if you were in a frat.
Since the mid-90′s, people have been posting pictures on the internet. And for the same amount of time people have been stealing them for personal and commercial use. Take for instance the thumbnail screenshot from Family Guy below. If I were compiling and printing a book about cartoons, then my use would be infringement. If I were making an advertisement for a magazine, then my use would be infringement. As I am using it as part of critical commentary (or news reporting), then it is an exempted use under 17 U.S.C. § 113(c):
“(c) In the case of a work lawfully reproduced in useful articles that have been offered for sale or other distribution to the public, copyright does not include any right to prevent the making, distribution, or display of pictures or photographs of such articles in connection with advertisements or commentaries related to the distribution or display of such articles, or in connection with news reports.”
In contrast, this blog posting describes how a picture of the author’s son listening to an iPod was taken from the internet and put in print ads [edit: by electronics retailer Vinderen Elektriske]. While the outcome was a settlement by the infringer for $4000, it is still a good example of what not to do. In the article the author indicates that he would have gladly given permission to use the image for much less (in exchange for a Nintendo Wii). Before all the graphic designers out there think that paying only $4k if ever caught is a good risk to take, I would like to point out that this instance was not in the United States, so your mileage may vary. In the U.S. the damages run between $750 and $30,000 per infringement, and up to $150,000 if the infringement is willful. 17 U.S.C. § 504(b),(c). In addition, there is the possibility of criminal charges and jail time of up to one year if for infringement that is a commercial use, such as in the story above.
“(a) Any person who violates section 506 (a) (relating to criminal offenses) of title 17 shall be punished as provided in subsections (b), (c), and (d) and such penalties shall be in addition to any other provisions of title 17 or any other law.
. . .
(3) shall be imprisoned not more than 1 year, or fined in the amount set forth in this title, or both, in any other case.”
18 U.S.C. § 2319(a), (b).
Capitol Records, et al v. Jammie Thomas – Sony BMG’s lawyer says “Copying music you own is stealing.”
I was wondering when this bit of revisionism would take hold. I do not have a side in this battle (or a stake in it, when is my phone going to ring?), and for me it is purely an academic issue which should be framed thusly: “Whether format-shifting music (such as ripping a CD to your iPod) by a consumer for personal use or as a backup is a fair use under the Copyright Act.” For years the RIAA said yes, it was. For instance, during oral arguments in Grokster, the RIAA’s attorney stated to the U.S. Supreme Court:
The record companies, my clients, have said, for some time now, and it’s been on their website for some time now, that it’s perfectly lawful to take a CD that you’ve purchased, upload it onto your computer, put it onto your iPod.
Apparently, however, this was not a use that would fall under any fair use analysis, according to the RIAA, et al, but simply a license they were granting to do so. At least that is how it looked after the music industry filed a joint reply with the government as part of the triennial of the effectiveness of the DMCA. In the reply (pdf), the companies said in one footnote:
Nor does the fact that permission to make a copy in particular circumstances is often or even “routinely” granted, see C6 at 8, necessarily establish that the copying is a fair use when the copyright owner withholds that authorization. In this regard, the statement attributed to counsel for copyright holders in the Grokster case, is simply a statement about authorization, not about fair use.
Now, in this case which should be a fairly routine one, the subject of fair use arose and here is what Sony BMG’s counsel had to say:
[Judge] Gabriel asked if it was wrong for consumers to make copies of music which they have purchased, even just one copy. [Sony BMG 's attorney] replied, “When an individual makes a copy of a song for himself, I suppose we can say he stole a song.” Making “a copy” of a purchased song is just “a nice way of saying ‘steals just one copy’,” she said.
For more on today’s arguments, see Sony BMG’s chief anti-piracy lawyer: “Copying” music you own is “stealing”
The content industry, however, should pick its battles better. There is a good case to be made that, under current fair use analysis, content-shifting is not a fair use, and this is a case that they should easily win. Any of the software manufacturers making CD ripping software would fail both the tests of Sony and Grokster. And why did no one sue Apple for the “Rip. Mix. Burn.” ads?
(note: I do seem to remember that both Roxio www.roxio.com and Apple www.apple.com, which make a majority of the CD ripping/burning software had a deal with EMI to create “secure CDs,” but I am sure that deal died a horrible corporate slow death.)
This has been a pet peeve of mine for a while – the incorrect, misleading, and fearmongering copyright statements made by many media. That statement is a bit soft. In reality, the media companies lie about their rights to control content in an attempt to instill fear in their customers. The author of “The Tech Industry Wants You To Support The Fight For Fair Use” points to the NFL’s statement that you are not even allowed to discuss the game without permission. By overstating their rights, these companies harm the copyright regiegm that has been completely designed to assist their business. The sad part is that there is no need to overstate their rights. The truth is enough for their honest customer, and the shameful statements will not deter their dishonest ones.
With this in mind, the Computer & Communications Industry Association (Microsoft, Google, Yahoo, Oracle et al) filed a complaint with the FTC arguing that the statements made by many rigthtsholders are deceptive to the point of being illegal. Specifically, all of these notices disregard any notion of fair use in the law, such as this warning commonly found at the beginning of DVDs:
Well, yes, if you pirate the DVD, there are penalties. But what of the acting professor who wants to record some short (1-2 minute) clips of scenes to show in class as examples or digitize some classroom material VHS tapes because they are 15 years old and degrading quickly? This is a real world example that came up for me two days ago. I gave the professor an old Dazzle DV bridge and told him to go for it. Will he go to prison for cutting out a 50 second snippet of Sweeney Todd to put on his thumb drive and carry to show in class? Of course not – but if convincing even people with PhDs that making a backup of short educational use clips is perfectly within the law is a hard sell, imagine what the average person must think copyright law actually says. If they have been reading the DVD warnings, they might be inclined to turn in their professor thinking that if what he is doing carries a 5 year federal sentence and a $250,000 fine, there might just be a reward for being the snitch (FYI, there will fine, jail time, or reward. It is all legal and you have been lied to in a criminally negligent manner. At least that is how the argument goes.)
You can learn more at the CCIA’s web site, Defend Fair Use.
On a related note, here is a nice entry about the mis-statement of resale rights after the first sale.
Use of copyrighted material located using Internet Archive’s Wayback Machine by defendants for Litigation a fair use
Last month the the U.S. District Court for the Eastern District of Pennsylvania ruled on a case that at first blush seems entirely too long to deal with the subject matter (40 pages). The opinion dismissed the Plaintiff’s claims under copyright law, the Digital Millennium Copyright Act’s anticircumvention provisions, the Computer Fraud and Abuse Act and state common law. However, in finding fair use for the copyright issue the opinion does not go to prior cases on point, such as Bond v. Blum, 317 F.3d 385 (4th Cir. 2003), and instead looks for other ways to determine the case.
A robots.txt file is a protection measure to control access under the DMCA
Lots will be written about this case, specifically about whether the ruling was correct in determining a robots.txt file to be a lock on web material (I remember arguing in 1996 about whether the robots.txt specification, never offically adopted btw, would be used as a means for arguing they limited access to files) for DMCA anticircumvention cases (A robots.txt file is a “technological measure that effectively controls access to a work” under the DMCA). This was previously implied in Field v. Google, 412 F. Supp. 2d 1106 (D. Nev. Jan. 19, 2006), where Google won because the web site owner did not configure a robots.txt file to prevent caching by search engines. This puts another spin on the already irreconcilable views of Lexmark Int’l v. Static Control Components/The Chamberlain Group, Inc. v. Skylink Technologies, Inc. and Universal City Studios, Inc. v. Corley/Universal City Studios, Inc. v. Reimerdes.
For today though there is already plenty of reading, so I will put up those other cases later in the week.
Healthcare Advocates, Inc. v. Harding, Earley, Follmer & Frailey, Slip Copy, 2007 WL 2085358, E.D.P.A. (July 20, 2007).
Presently before this Court is the Motion for Summary Judgment filed by Defendant Harding, Earley, Follmer & Frailey, John F.A. Earley III, Charles L. Riddle, Frank J. Bonini Jr., and Kimber Titus (collectively the “Harding firm”). Also before this Court is the Motion for Partial Summary Judgment filed by Plaintiff Healthcare Advocates, Inc. For the following reasons, Defendants’ Motion for Summary Judgment is granted, and Plaintiff’s Motion for Partial Summary Judgment is denied.
The law blog at the Wall Street Journal points out that a complaint filed against YouTube this week copies greatly from one filed a few weeks back. They highlighted the relevant text in the two complaints for you. Here is the first and second complaint. Is it infringment or fair use? Good question, which also dovetails into an article I am currently writing on a similar issue (more later).
The only article on the matter Davida H. Isaacs, The Highest Form of Flattery? Application
of the Fair Use Defense against Copyright Claims for Unauthorized Appropriation of Litigation Documents, 71 Mo. L. Rev. 391 (2006), (pdf) applies a fair use analysis. Nimmer on Copyright § 2.18[E] suggests “There appear to be no valid grounds why legal forms such as contracts, insurance policies, pleadings and other legal documents should not be protected under the law of copyright.”
However, I throw my hat in with Prof. Thomas G. Field, Jr., who believes that law firms “[don't] have a protectable copyright in  complaints” because they do not meet the creativity required to gain copyright protection. Under the idea/expression dichotomy in copyright law, facts are not protectable. Citing law, no matter how arranged, is simply citing to fact, and there is no creativity involved (unless you are wrong in what you believe the law to be, I suppose, which might make your interpretation very creative). I don’t think that you have to get to a fair use analysis here, as there is no protection available.
Of course, firms like Milberg Weiss (they sued a company I was an officer of once, but so did most state’s attorney generals) have been slapping a copyright warning on their complaints since 2001. If they sue you for copying wholesale from one of their class action complaints, give me a call to defend you; I would like an opportunity to make the argument in front of the Supreme Court.
Technorati Tags: Keith HenningCopyrightsTrademarksIntellectual PropertyIP LawLegal Filings
Perfect 10, Inc. v. Amazon.com, Inc. and Google, Inc., CV-06-55405 (pdf).
In summer 2005, a Cali. federal district court issued a preliminary injunction against Google and Amazon, preventing them from “copying, reproducing, distributing, publicly displaying, adapting or otherwise infringing, or contributing to the infringement of Perfect 10’s photographs.” The plaintiff, Perfect 10, Inc., is s online adult images. Yesterday, the U.S. Court of Appeals for the Ninth Circuit reversed that injunction which will again allow it to provide thumbnails of Perfect 10′s images in Google search. The case in which Perfect 10 has sued Google and Amazon.com for copyright infringement begun in Nov. 2004, continues.
NPR’s Morning Edition had a segment on this morning about the Fair Use Project at Stanford Law School‘s Center for Internet and Society. Most specifically, they discussed how they believe fair use should work on the Web. An interesting listen, even if a little light on the law and big on rhetoric. Just saying “Fair use” does not magically make infringing activities legal. For an infinging use to be excused under fair use, it has to either fit into a specific exception or fit under an analysis using the 4 fair use factors of 17 USC Section 107. Even if under an exception, if particularly willful, some courts will still apply the 4 factor analysis.
The goal of the Fair Use project is to “lay the groundwork for artists and academics to use copyrighted work without permission in certain situations.” The real remedy here, however, is a political one: lobby to change copyright law to add an exception for the uses they envision.
Apple 2.0: Is DVD Ripping in Apple TV’s Future? This week Apple announced the end of DRM for iTunes. The market spoke and, apparently, someone is finally on the side of the customer. See this article at the Economist.
Belatedly, music executives have come to realise that DRM simply doesn’t work. It is supposed to stop unauthorised copying, but no copy-protection system has yet been devised that cannot be easily defeated. All it does is make life difficult for paying customers, while having little or no effect on clandestine copying plants that churn out pirate copies.
Last month, the Dist. Ct. for N. Cali. ruled against the DVD Copy Control Association (DVD CCA) saying that, under their agreement the DVD CCA gives, copying DVDs for personal use is legal. The judgment is very narrow, and I doubt it will be a wedge to go against DVD DRM.
Full story here with a bucket full of links: Science Journal (Almost) Polices the Blogosphere. Short story, PhD student blogs about the analysis of a study in the Journal of Science of Food and Agriculture which had been picked up by mainstream press because it suggested that antioxidants in fruits were boosted by alcohol (i.e daiquiris are a health food). She did a review of the results and determined that the results were overblown and alcohol was not the best thing to use to boost antioxidants. In her posting she used a single chart and graph from the original paper. The publisher demanded she pull the graph and chart, she pulled it and posted about their demand, the bloggers went wild, and the publisher, John Wiley & Sons, relented by saying they had given her permission to use material.
Problem? First, the PhD student did not need Wiley’s permission. She was critiquing a publication, so fair use applies. I don’t need to go through the analysis, cause it is basic. Wiley needs better counsel. What they got was a PR nightmare from what was a non-winable issue to begin with. The business outcome here is terrible.
Second, as the student later determined, the license to the journal that her school had with the publisher gave her permission to excerpt anyway.