Copyright

Holding Government Accountable One Click at a Time

Jason Crow — Thu, 26 Jun 2008 14:42:10 -0400

“Laws are like sausages. You should never watch them being made.” This adage, generally attributed to Otto von Bismarck, rings true to anyone who has had the opportunity to watch Congress make public policy. Just tune into C-SPAN sometime for a taste.

Across the pond in England, a website, TheyWorkForYou.com (TWFY), aims to change this by offering a new service that allows users to watch archived BBC coverage of parliamentary debates and tag the video.

The tagging solves a big problem: there is currently no way to search the video to find the speaker or topic you are interested in. TWFY is crowdsourcing the work, allowing visitors to mark the moment in the video when a speaker begins by pressing a big red button. They call this activity "time-stamping" and provide incentives to compete with others by displaying the names of the top time-stampers and giving away promotional hoodies to the top time-stampers. The time-stamping synchronizes the video with the transcript and makes the video much more useful by allowing users to search the video according to their interests.

According to Wikipedia, “crowdsourcing is a neologism for the act of taking a task traditionally performed by an employee or contractor, and outsourcing it to an undefined, generally large group of people, in the form of an open call.” Crowdsourcing has been used to accomplish a variety of tasks big and small. For instance in the political context, the Democratic National Committe crowdsources the production of video by redistributing amateur video of McCain’s speeches for public remixing through FlipperTV in hopes of creating the next viral video.

Video tagging of all sorts has been around for sometime (see these proprietary platforms: Viddler, Gotoit, VeoTag, MovieChapterizer), but this is the first implementation I have seen that uses an open platform and public contributors to do the tagging. If one can tag video in order to synchronize text and video, as is the current iteration at TWFY, a modification of the code may allow the addition of comments and links. In the context of government, one can envision video of a Senator debating proposed legislation accompanied by an embedded PDF of the legislation with links to a background primer on the subject. TWFY's open platform allows for programmers to riff on their current setup to make this a reality.

I applaud the BBC and TWFY for their efforts to inform the citizens of England by using an open platform. I am a big fan of civic engagement. However, did the BBC plan on exploiting the economics of crowdsourcing (as in free labor)? Why didn’t the BBC, who apparently provided the initial funding for the TWFY project, provide TWFY with enough funding for them to create the programming language to do the synchronization automatically? Perhaps the developers at TWFY are planning on developing this feature or counting on an open source developer from the community to help make it happen.

The controversy surrounding the ethical and economic implications of crowdsourcing have been explored by others (see Jimmy Wales and Douglas Rushkoff), but what about the legal implications? What kind of license would this enriched media require? Who owns the finished product? The users who contributed dozens of hours of work, TWFY, the Parliament or the BBC?

The transcripts of parliamentary debates, called "Hansard," remain under Parliamentary Copyright and are licensed by TWFY. The licensing guidelines indicate that for most uses the license is free, but in some circumstances there may be a charge. If users could add links or embed files, perhaps a U.K. creative commons license would be a good idea? As a comparison, the work of the United States Government is not covered by copyright, including, among other things, federal judicial decisions as well as speeches of federal government officials given in the course of their employment.

I remain hopeful that this fantastic service by TWFY will provide more openness, transparency and access to government information. Time-stamping at TWFY is surprisingly fun and the parliamentary debates can be quite lively. The TWFY website indicates that about 60% of the available video has already been time-stamped. I guess watching the sausage get made isn't so bad after all.

(Jason Crow is a second-year law student at Boston College Law School and a CMLP Legal Intern.)

Associated Press Sends DMCA Takedown to Drudge Retort, Backpedals, and Now Seeks to Define Fair Use for Bloggers

David Ardia — Mon, 16 Jun 2008 17:57:04 -0400

Last week, the Associated Press ("AP") sent a takedown request under the Digital Millennium Copyright Act to Rogers Cadenhead, the founder of Drudge Retort, a liberal alternative to (and parody of) the well-known Drudge Report, demanding that he remove six user-submitted blog entries and one user comment on the site that contained quotations from AP articles. Today, the New York Times reported that AP was reconsidering its request while it creates a set of guidelines for bloggers and websites that excerpt AP material.

The Drudge Retort is a community site similar to Digg and Reddit, allowing its users to contribute blog entries, comments, and links to interesting news articles. According to Cadenhead, none of the six posts republished the full text of an AP story; instead, each contained quotes ranging in length from 33 to 79 words (although the posts have been removed, Cadenhead has provided a summary of them here).

Of course, you might be skeptical whether such minimal -- and no doubt widespread -- quoting of AP content is actually copyright infringement, and you'd be right. Indeed, a number of prominent bloggers took AP to task (see here and here) for sending the takedown notice and ignoring what has become the general practice in the blogging community of using headlines and excerpted quotes from MSM sources. As Jeff Jarvis notes, the AP "is ignoring the essential structure of the link architecture of the web. It is declaring war on blogs and commenters."

In fact, it is very likely that the posts AP is complaining about on Drudge Retort are permissible fair uses under the Copyright Act. First, several posts appear to be offering commentary on recent news items. The use of another's copyrighted work for the purpose of criticism, news reporting, or commentary, will generally weigh in favor of fair use.

Second, all of the posts use fewer than 80 words from the original AP articles. While there is no bright line that defines how much of a copyrighted work can be copied and still be considered fair use, courts will consider the amount and importance of the material copied in assessing what is permissible. I can't tell how long the original AP articles were, but it's likely that all of the articles were substantially longer than 80 words.

Third, it is hard to see how the posting of AP headlines and 80 word snippets could possibly impair the market for the original AP articles (when evaluating fair use claims, courts are most concerned with whether the copying will undercut the market for the original work). Instead, the posts AP is complaining about would seem to be doing just the opposite. Users of Drudge Retort, and sites like it, post these headlines and snippets for the very purpose of alerting others that some interesting piece of news exists. These snippets invariably include links to the original articles and serve to drive traffic to the site hosting the original AP story.

While the June 10, 2008 takedown request from AP only mentions copyright infringement as a justification for the removal, a June 3 letter sent by AP's Intellectual Property Governance Coordinator, Irene Keselman, also asserted a "hot news" misappropriation claim:

AP considers taking the headline and lede of a story without a proper license to be an infringement of its copyrights, and additionally constitutes "hot news" misappropriation.

It doesn't appear, however, that AP is continuing to pursue its "hot news" claim against Drudge Retort, and for good reason. This little known legal doctrine, which saw its genesis in 1918 in International News Service v. Associated Press, 248 U.S. 215 (1918), seems to have fallen out of favor because the 1976 Copyright Act preempts all legal and equitable rights that are equivalent to the exclusive rights offered by federal copyright law. As a result, in National Basketball Ass'n v. Motorola, 105 F.3d 841, 844 (1997), one of the few cases to address a "hot news" claim, the Second Circuit set an exceptionally high standard for such claims to be viable, requiring, among other things, that the information be time-sensitive; the defendant be in direct competition with the plaintiff; and the continued publishing of the "hot news" would so reduce the plaintiff's incentive to produce the product or service that its existence or quality would be substantially threatened.

Accordingly, to succeed with a "hot news" misappropriation claim, AP would have to prove not only that Drudge Retort is a direct competitor to AP, but also that its headlines and text were time-sensitive and Retort's use of this content would so harm the 1,500 member news cooperative that the continued publication would threaten AP's existence.

Perhaps because AP recognizes that its legal claims against Drudge Retort and its users are weak or because it has realized that its "heavy handed" approach might be counterproductive, it announced that it would rethink its policies toward bloggers and come up with a set of guidelines for others to use its articles.

I think it's laudable that AP is rethinking its approach and planning to meet with representatives of the Media Bloggers Association and others, but let's be clear here. While AP is entitled to issue a set of guidelines for the use of its articles, these guidelines are not legally enforceable and they cannot narrow the scope of what is permissible under the fair use doctrine. The blogging community needs to be careful not to allow these guidelines to become a de facto set of norms that constrain the permissible uses of news content.

Fair use permits a broad array of innovative and transformative uses of copyrighted material. It also is essential to ensuring that copyright holders don't trample on First Amendment rights. In the end, AP and other news organizations will be better off if they work together with bloggers and community news sites to expand, enhance, and contextualize news. Let's hope the AP's guidelines take this into account.

UPDATE: On June 20, 2008, Cadenhead and AP announced that they had settled their copyright dispute. The six posts in question, however, remain inaccessible on the Drudge Retort.

(You can follow further developments in the AP's dealings with Drudge Retort in our Legal Threats Database entry: Associated Press v. Drudge Retort.)

Metallica's Management Suppresses Reviews, Metallica Puts Them Back Up

Matt C. Sanchez — Fri, 13 Jun 2008 10:07:37 -0400

In an interesting counterpoint to Prince’s latest takedown exploits – see Sam’s recent posts – rock band Metallica recently “ear spanked” its management for demanding that websites take down reviews of unreleased Metallica songs. While the reviews are back online after the short downtime, the dispute raises copyright issues worth further discussion.

Last Wednesday, June 4, Metallica representatives hosted an invitation-only listening party in London for U.K. music writers, previewing six of the band’s new songs. Several attendees promptly posted their impressions about the new songs online. QPrime, Metallica’s management company, just as promptly told at least four sites – Metal Hammer, Rock Sound, Classic Rock, and The Quietus – to remove the reviews. The sites complied.

At first glance, it seems the reviewers shouldn't have had anything to be afraid of. The most obvious claim against the reviewers would have been breach of a non-disclosure agreement, a standard procedure for leaks coming from such clandestine screenings. However, The Quietus editor Luke Turner said the band's representatives didn’t ask attendees to sign any such agreement, negating any contract claims.

Criticism of the songs typically would have posed no copyright issues either. Because the reviewers quoted lyrics from the unpublished songs, however, they may have opened themselves up to a copyright infringement claim. U.S. and U.K. law protect quotes used in the course of criticism under the doctrines of fair use and fair dealing, respectively, but both condition this protection to some extent on whether the content had already been made available to the public.

Absent the public availability issue, the reviewers would have had a relatively straightforward fair use defense under U.S. copyright law. In fair use cases involving criticism, the purpose of the use – the first factor in the fair use balancing test – tends to weigh in favor of fair use. Criticism is a core First Amendment pursuit and is well-protected by the law, so this factor outweighs most concerns raised by the other three factors involved in a fair use analysis.

Because the copyrighted work here was not yet available to the public, the fourth factor – the effect on the market for the original work – takes on a larger role in the analysis. Courts in some cases restrain uses of copyrighted content that otherwise would constitute fair use on the theory that advance availability of the content could effect the market for the original. See Publaw’s discussion of Harper & Row v. Nation Enterprises. Metallica could argue that the reviewers’ advance use of the lyrics would harm the market for the album by weakening the "new-ness" of the experience. Still, this is a weak argument under U.S. law given that this aspect of a fair use analysis primarily is concerned with uses that could “take over” the market for the original work, and a critique of an album is hardly a replacement for the album itself.

The outlook in the U.K. is bleaker, and since the situation has so many U.K. ties it's possible Metallica would have pursued claims under U.K. law. While fair dealing is similar to U.S. fair use in its favored treatment of criticism, it explicitly denies any protection to copying of works that have not yet “been made available to the public.” For more on U.K. copyright law and fair dealing, see JISC Legal and Wikipedia.

It isn’t clear what satisfies the “made available” standard – the requirement did not exist until a 2003 amendment – but it’s unlikely that Metallica's invitation-only event would cut it. The reviewers could say Metallica made the content available by screening it for music writers without having them sign non-disclosure agreements – basically, that “made available to the public” fairly should imply “made available to someone you know is going to make it available to the public.” Alternatively, the reviewers could argue that the private screening constituted a “public performance,” but this would be a difficult argument given the restricted, invitation-only access to the event.

To add one more wrinkle to the analysis, U.S. and U.K. cases involving prepublication use tend to involve cases where the user didn’t have permission to access the unreleased material. Permission to access isn’t the same as permission to copy, but it’d be interesting to see if Metallica’s screening of the songs would affect the analysis.

Taking all of that into consideration, my intuition is that the reviewers would have a strong fair use argument under U.S. law but probably would not under U.K. law. Either way, they would have had plenty of cause for concern if Metallica had filed a copyright infringement lawsuit.

To follow further developments in this matter, see the legal threat entry Metallica v. The Quietus in our database.

(Matt C. Sanchez is a second-year law student at Harvard Law School and the CMLP's Legal Threats Editor.)

More on Prince, Bootlegging, and Copyright Protection for Live Performances

Sam Bayard — Wed, 11 Jun 2008 12:58:48 -0400

All right copyright geeks, it's time to do some more hypothesizing on the Prince/Radiohead/YouTube flap I blogged about in my previous post, Prince, Radiohead, and the Bootlegging Provision of the Copyright Act. Readers posted great comments that merit some elaboration in this post. The idea here is not to provide any sure answers (because I don't have them), but to raise some questions for further discussion. If you are not a copyright lawyer, you'll have to excuse the technical bent; there's just no way to deal with these questions without getting a little esoteric.

To recap, previously I discussed whether the mystery bootlegger who recorded and posted Prince's cover of Radiohead's "Creep" at the Coachella Valley Music & Arts Festival might have violated the anti-bootlegging provision of the Copyright Act, 17 U.S.C. § 1101 and whether sending a DMCA takedown notice was an appropriate legal response. The next day, Eric Goldman of the Technology & Marketing Law Blog, posted the following intriguing comment:

If Prince was simultaneously fixing his Coachella performance (such as through his own taping of the event), then a third party's independent recording of the event should be covered under 106, in which case the notice-and-takedown provisions would be a more appropriate recourse.

This seemed like a plausible argument, but I couldn't get over the question of how someone could infringe a simultaneously fixed recording (hypothetical in this case) without copying or distributing that recording. Recall that Prince doesn't own the rights to the musical composition (Radiohead does). If he has rights in the live performance, they should be limited to any (hypothetical) sound/video recording, right? (To correct one point in my previous post, the bootlegger wouldn't obtain copyrights in his/her direct recording because neither Radiohead nor Prince authorized the recording, so there is no fixation -- see the first sentence of section 106 below.)

Yesterday, the whole issue got more interesting when Fred von Lohmann of EFF made this point:

The "simultaneous fixation" doctrine only applies if the simultaneous fixation was done in the course of a transmission (see sec 101 definition of "fixed"). So whether Prince and/or Coachella recorded it is irrelevant, unless it was also transmitted (I'll note that AT&T sponsored live transmissions of some Coachella performers, but not Prince).

Fred also brought up a great issue relating to unauthorized derivative works and the anti-bootlegging provision, but I want to try to stay focused in this post.

To understand Fred's comment, we need to look closer at section 101 of the Copyright Act, which defines fixation as follows:

A work is “fixed” in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission.

The second sentence, so the argument goes, means that simultaneous recording of a live performance only creates a "fixed" work when the work is also transmitted (i.e., broadcasted). At first I was taken aback by this reading of section 101 because I had understood the second sentence as extending protection to live broadcasts (as a special case) without necessarily implying a denial of protection for non-transmitted performances. Putting aside the special case of live broadcasts, the first sentence of section 101 arguably could cover authorized simultaneous recordings without the necessity for transmission.

But a little poking around has mostly disabused me of this view. Two prominent copyright treatises agree with Fred that live performances are not fixed without a broadcast. I didn't find a whole lot of helpful case law. The rationale for limiting fixation to broadcasted performances escapes me. Perhaps Congress drew this distinction because of a special concern for broadcasting, an economically important activity. Maybe it hinged on a congressional judgment that live performances should remain unprotected, except in the special case of live broadcasts and then only limited to the broadcasted material itself (see below).

I get the sense that it might relate to a pre-1976 Act technical understanding that simultaneous authorized recording could not satisfy the fixation requirement as against a simultaneous infringer because there was no copyrighted work at the time the allegedly infringing conduct took place (though perhaps a moment later); Congress had the power to change this understanding, the argument goes, but it only did so for transmitted works. If anyone has any input, on any aspect of this question, please add your comments.

But, to my mind, there's a further question, and one that could impact citizen media coverage of performances and other public events through impromptu recording, and maybe even through things like twittering and live blogging. In proper hypothetical form: Even if Prince or the event promoters (with his authorization) had broadcast the show and made a simultaneous recording, would copyright protection extend to the underlying performance (and thus prohibit the bootlegger's direct copying of the live act) or just to the broadcasted material (i.e., making copies of or re-transmitting the actual broadcast without permission)?

The legislative history, H.R. Rep. No. 94-1476, at 52-53, doesn't look to me like it contemplates extending copyright protection to the underlying performance, and two cases suggest that protection only extends to the broadcasted material. NBA v. Motorola, Inc., 105 F.3d 841 (2d Cir. 1997); Production Continental Broad. Co, 622 F. Supp. 1500 (N.D. Ill. 1985). But, these cases involved underlying "performances" (a parade and sporting events) that weren't copyrightable subject matter regardless of fixation.

On the other hand, the Eleventh Circuit, in a case dealing with a constitutional challenge to the anti-bootlegging provision, seems to state that the performance itself would be protected:

If a live performance is broadcast, e.g., by radio or television, and simultaneously recorded by the performer, any unauthorized recording by a person receiving the broadcast constitutes copyright infringement of the sound recording or motion picture, notwithstanding that the infringer actually copied the live performance directly, and not the fixation thereof.

United States v. Moghadam, 175 F.3d 1269, 1280 (11th Cir. 1999) (emphasis added). This quotation is not a model of clarity and it is probably best characterized as dicta, but it does support the view that direct copying of an underlying performance would be infringement. More persuasively, one could make a statutory argument. If the performance (the "work consisting of sounds, images, or both") is fixed because of section 101, then why shouldn't protection extend to its entirety, not just to a particular manifestation? In other words, by operation of section 101's definition of fixation, the performance becomes an "original work[] of authorship fixed in [a] tangible medium of expression" for purposes of section 102, with all the attendant protections against infringement. There are probably layers that I'm missing here.

So, copyright geeks and fair readers alike, what do you think?

DMCA "Repeat Infringers": Scientology Critic’s Account Reinstated after Counter-Notification

Wendy Seltzer — Fri, 06 Jun 2008 11:30:26 -0400

The Scientology critic known as “Wise Beard Man” returned to YouTube this week after successfully filing counter-notifications to copyright claims that had earlier been made against his account. The takedown and delayed return illuminate another of the lesser-known shoals of the DMCA safe harbor, the 512(i)(1)(A) “repeat infringers” consideration.

As Mark Bunker, the critic, describes it, he had initially set up a YouTube account under the name XenuTV, where he posted clips including commentary on Scientology. Some of these clips came from other sources, and two of them attracted DMCA takedown requests from Viacom, for “Colbert Report” clips in which Stephen talked about Scientology. These might well have been fair use, or he might have chosen to remove them, but as Bunker says, “Before I could act on the takedown notices and remove the offending clips, the accounts were canceled.”

Bunker began using a second YouTube account, XenuTV1, posting only clips of entirely his own material. His advice to the “Anonymous” critics made him a sort of elder statesman to the movement, and his account attracted over 10,000 subscribed viewers.

In April, however, this second account was abruptly canceled. Apparently, YouTube had discovered that it was Mr. Bunker’s second, after a canceled first, and interpreted the DMCA to compel termination of this second account.

The provision they were invoking was 512(i)(1)(A), which sets some conditions for service provider eligibility for shelter in the DMCA safe harbor:

“The limitations on liability established by this section shall apply to a service provider only if the service provider—
(A) has adopted and reasonably implemented, and informs subscribers and account holders of the service provider’s system or network of, a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider’s system or network who are repeat infringers”

Now the DMCA does not define “repeat infringers,” and no cases have yet done so, so it’s left to ISPs to determine how to do so. Copyright claimants urge that two takedown notices make someone a “repeat infringer” whose account must be terminated (let’s hope it’s just the account, and not the subscriber himself!). In contrast, noted copyright scholar and attorney David Nimmer suggests that the provision should be construed strictly, to require “repeat infringer” sanctions only against those who have more than once been found liable for copyright infringement after legal proceedings. Nimmer, Repeat Infringers, 52 J. Copyright Soc’y 167 (2005). Nimmer also notes that unless “repeat” is limited to the service at issue, all the major motion picture studios would be ineligible for online posting accounts, since all have had multiple copyright infringement judgments rendered against them. Nor does the DMCA define “appropriate circumstances" for account termination, so mitigating factors might well be raised against the termination of any particular account. The DMCA pre-condition is open to interpretation.

It appears, however, that YouTube determined that the two Viacom notices (Feb. 2, 2007, and Jan. 15, 2008) levied against Mr. Bunker’s XenuTV account marked him as a “repeat infringer.” Therefore, to maintain safe-harbor eligibility, YouTube felt compelled to terminate the second account, XenuTV1, upon recognizing that it was the same individual. Notwithstanding a complete absence of copyright claims against the XenuTV1 account, YouTube apparently concluded the risks of continuing to host the marked "repeat infringer" were too great.

Notably, 512(i) is a general precondition to the safe-harbor. Failure to “adopt[] and reasonably implement[]” a repeat infringers policy in one instance could be used against a provider as an argument to deny it the benefits of safe-harbor protection in an entirely unrelated case. YouTube’s risk calculation in responding to Mr. Bunker’s accounts, therefore, was not merely whether Viacom would sue over the Colbert clips Mr. Bunker had posted and YouTube removed, but whether entirely different copyright holders, complaining about other accounts’ postings, would invoke a failure to remove Mr. Bunker’s account as non-compliance with the DMCA's eligibility requirements and seek to hold YouTube liable for other users' infringements.

Mr. Bunker’s story concludes successfully, however, thanks in part to Viacom’s good sense. YouTube invited Mr. Bunker to file counter-notifications (form) for the Viacom clips, and he did so in mid-May, asserting that the “mistake or misidentification of the material” was in not recognizing its use as fair. Viacom’s acceptance of the counter-notifications allowed YouTube to remove the “infringer” stain from Mr. Bunker’s account. For his part, Mr. Bunker says he was supported in his counter-notifications by the public messages of support and group effort to contact YouTube and Viacom to lay the groundwork, including those of VictoireFlamel and The Masked Analyst, who has a series of videos explaining the DMCA and counter-notification. Bunker reports that Viacom’s attorneys said they “wouldn’t be hard-nosed about fair use clips.”

Ten to 14 days after the counter-notification, therefore, when Viacom did not go to court to press its original copyright infringement claims, YouTube allowed the XenuTV accounts’ reinstatement.

While Mr. Bunker's story ends happily for fair use, another story this week illustrates the danger of taking DMCA notifications as the mark of “repeat infringement”: University of Washington researchers reported getting DMCA takedowns against their laser printers, allegedly for sharing copies of “Iron Man” and “Indiana Jones.” MPAA agents sent DMCA notices without any verification that material was available from the accused IP addresses, much less that the materials infringed copyright. Meanwhile, universities report that they get DMCA takedowns alleging infringement by “shared folders” even when filters such Audible Magic make sharing impossible by blocking any transmission of files.

If the DMCA as a whole is to have any coherence, providers shouldn’t lose DMCA protection or subscribers lose their hosting based on such flimsy allegations.

Prince, Radiohead, and the Bootlegging Provision of the Copyright Act

Sam Bayard — Mon, 02 Jun 2008 18:59:23 -0400

Prince is at it again. We've covered his legal antics before -- his lawyers went after a number of fan sites last November, and Universal Music sent a takedown notice to YouTube last June over a video of a toddler dancing with "Let's Go Crazy" playing in the background. This time, his record label apparently sent a takedown notice to YouTube over a video of Prince performing a cover of Radiohead's "Creep" at the Coachella Valley Music & Arts Festival. The interesting thing is that Radiohead wants the video put back up. A copy is available at present, but it's hard to tell whether this is because someone else posted the video or because YouTube put it back up at Radiohead's request.

Untangling all the legal strings here is more difficult than it initially appears. At first, this looks like His Purpleness engaging in some flagrant DMCA abuse. Radiohead owns the copyright in the musical composition of "Creep," and the concertgoer probably owns the copyrights in his sound and video recording of the performance (anyone know the technical details on this?). But Prince may have some legal ground to stand on.

Section 1101 of the Copyright Act, 17 U.S.C. § 1101, states that anyone who "fixes the sounds or sounds and images of a live musical performance . . . shall be subject to the remedies provided in sections 502 through 505, to the same extent as an infringer of copyright." It also applies to anyone who "distributes or offers to distribute . . . or traffics in any copy or phonorecord fixed as described [above]." The person who made the unauthorized video pretty clearly violated the first part of this anti-bootlegging provision, and Prince has a non-frivolous argument that YouTube is violating the second part by "distribut[ing]" or "traffic[king]" in the unauthorized recording. This is not something YouTube would want to take lightly.

Exactly how section 1101 fits with the rest of the Copyright Act is not altogether clear. It just says that a violator will be subject to the remedies in sections 502 through 505. These are the ordinary remedies that a plaintiff can obtain in a successful infringement lawsuit -- an injunction (17 U.S.C. § 502), impounding of infringing articles (17 U.S.C. § 503), damages and profits (17 U.S.C. § 504), and costs and attorneys fees (17 U.S.C. § 505). It does not make unauthorized fixation equivalent to copyright infringement, and it does not give the performer copyrights in the performance. Most importantly, a plain reading of the statute suggests that section 1101 doesn't fit within the notice-and-takedown procedure found in section 512 of the DMCA, 17 U.S.C. § 512. Specifically, it doesn't look like a violation of section 1101 is a basis for sending a "notification of claimed infringement," or that Prince is "authorized to act on behalf of the owner of an exclusive right that is allegedly infringed." 17 U.S.C. § 512(c)(3) (emphasis added). For more detailed information about the notice-and-takedown procedure, see our legal guide section on Notice-and-Takedown.

So, Prince's objection to the video may not be as flimsy as it initially seemed, but sending a DMCA takedown is technically the wrong approach to deal with it under the circumstances. Of course, an old-fashioned cease-and-desist letter laying out the section 1101 claim would be entirely justifiable from a legal -- if not from a public relations -- point of view. It's hard to make a call without seeing what exactly Prince's lawyers sent to YouTube in the first place. In any event, YouTube's lawyers truly are stuck between the horns of a dilemma on this one.

Update on Oregon Statutes Copyright Spat

Sam Bayard — Wed, 14 May 2008 12:17:41 -0400

Ars Technica reminds us that the copyright squabble between the Legislative Counsel Committee of the State of Oregon (the "Committee") and Justia and Public.Resource.Org is still going on, and it may erupt into a full-on legal battle soon. That would be fine, in my view, because we could use a strong court decision putting to rest the argument that the "arrangement and display" of state statutes are copyrightable. For details on this argument, see my previous post.

After a rather feisty beginning, Carl Malamud from Public.Resource.Org and Tim Stanley from Justia participated in a conference call with Committee representatives in late April, during which they discussed the possibility of a mutually acceptable licensing solution. As part of this negotiation, Oregon proposed a "public license" that would allow Justia and Public.Resource.Org to continue to post the Oregon Revised Statutes. I haven't been able to get a copy of the proposed license itself, but it sounds like it was complicated and restrictive. In a subsequent letter sent to the Committee, Malamud referred to it as the "so-called 'public' license," complained about its lengthiness, and called it "incompatible with how public domain data is distributed."

There's more -- it looks like Justia and Public.Resource.Org are ready to rumble. On May 2, their attorney Karl Olson sent a letter to the Committee unequivocaly rejecting the "public license" and declaring that the parties had reached an impasse:

My clients respectfully cannot agree to the Public License. First, and most fundamentally, it would require them to acknowledge that portions of the Oregon Revised Statutes (ORS) are protected by copyright, and they respectfully but vigorously disagree that portions of the ORS are protected by copyright.

. . .

. . . We regret that we have reached an impasse but the issue of public access is too important, and the state's assertion of copyright is so broad, that we cannot agree to the proffered Public License.

The letter concludes with an ultimatum of sorts -- it declares Justia and Public.Resource.Org's intention to publish the Oregon Revised Statutes in their entirety, including the portions over which the Committee claims copyright, by June 2, 2008. On second thought, I guess it's not really an ultimatum at all because the letter does not demand anything in return for heading off this outcome. It's simply a challenge. Go Karl, Carl, and Tim!!

Our database entry, Oregon v. Justia, has more factual background and links to the documents.

Highlights from the Legal Guide: An Overview of Copyright

CMLP Staff — Fri, 09 May 2008 16:31:06 -0400

This is the ninth in a series of posts calling attention to topics we cover in the Citizen Media Legal Guide. In this post, we highlight the section on copyright, which provides an overview of this important area of law and offers practical advice to citizen media creators on how to use the copyrighted works of others and protect their own work from exploitation.

Before we jump into the copyright overview, which is reprinted below, we would like to thank Allan Ryan, who is the Director of Intellectual Property at Harvard Business School Publishing. In addition to writing a large portion of the copyright overview, Allan provided invaluable feedback on the intellectual property sections of the guide and kept us focused on the unique needs of citizen media.

Copyright Overview

A basic understanding of copyright principles is essential for any blogger, researcher, reporter, photographer, or anyone who publishes their creative works. It’s important for two reasons. First, you should understand how you can properly make use of someone else’s work – quoting from it, reprinting it, summarizing it, even satirizing it. And second, you should understand how you can protect your own legal rights in what you create, so that others don’t take unfair (even unlawful) advantage of it.

Like any area of the law, copyright can get complex at its outer limits. However, a working knowledge of copyright law is not hard to acquire and will guide you through nearly all the situations you are likely to face in your day to day work.

Let’s start with some of the building blocks. First, all copyright law is federal law and therefore uniform across the country (in theory). States have no role, because the Constitution gives Congress the sole "power . . . [t]o promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Congress first exercised this power to establish copyrights (and patents) in its first meeting in 1791, and it has regularly revised and updated the law ever since. Though the last comprehensive copyright revision was enacted in 1976, Congress has passed many new copyright laws and amended others – sometimes after highly contentious lobbying and debate – in the digital era.

Second, copyright law covers an extraordinarily broad range of creative work. The law calls them "works of authorship" but copyright protects almost all creative work that can be written down or otherwise captured in a tangible medium:

Literary works – which is basically prose, whether a news story, scientific paper, novel, poetry, or any other form of "words-only" (or words-and-pictures) creative work.
Musical works – both the lyrics and the music, whether from advertising jingles to symphonies.
Dramatic works – plays, including any accompanying music.
Pictorial, graphic, and sculptural works – photographs, drawings, paintings, and any other kind of two- or three-dimensional art.
Motion pictures and other audiovisual works – movies, television shows, YouTube videos, and any kind of multimedia.
Sound recordings – in addition to the copyright on words and music (above) a separate copyright protects a recording artist’s rendition of a work
Architectural works – blueprints and similar plans for buildings.

For more information on works protected under copyright law, see the section in this guide on Copyrightable Subject Matter.

Owning a copyright gives you the exclusive right to publish, copy or otherwise reproduce the work; to distribute the work publicly (or not so publicly); and to perform or display the work, if it is a work of performance or visual art. Owning a copyright also gives you the exclusive right to prepare "derivative works," which are the original works in new forms – for example, a translation into another language, or a movie made from a novel, or a revised or expanded edition of an existing work. Someone who does these things without your permission is infringing your copyright, and the law provides recourse to you. For more details on the exclusive rights granted to a copyright owner, see the section on Rights Granted Under Copyright.

Third, copyright is extraordinarily easy to acquire. In fact, you really need do nothing at all – the law provides that copyright springs to life and protects an author’s work from the time the work is “fixed in a tangible medium of expression…from which [it] can be perceived reproduced, or otherwise communicated . . . .” So when words are put on paper, or paint to canvas, or sights to a videotape, digital camera or cellphone, or even when any of the above are stored in a computer’s memory – they’re copyrighted. That’s it. They don’t have to be published. There is no requirement to put a copyright notice on it (though that is often helpful). There is no requirement that it be registered with the Copyright Office in the Library of Congress (though commercial publishers routinely do that, to show up in the database of copyrighted works.) If you are interested in registering your work with the Copyright Office, consult the section on Copyright Registration and Notice.

The law requires only that copyrightable works of authorship be "original" – but that is an easy hurdle to clear. Unlike the patent laws, there is no requirement that a work be innovative, meritorious, or even particularly bright or interesting. A work of authorship just can't be a copy of anyone else's work, and it must have some modest degree of creativity to it. In 1991, the Supreme Court ruled that an ordinary white-pages telephone book was not sufficiently creative to be copyrighted, but that gives you an idea of how low the barrier is. Any "work of authorship" that you create in the honest application of your own skills will likely be sufficiently "original" to be protected by copyright.

So what is the catch? None, really, but there are two cardinal principles of copyright that – fortunately – limit its reach. First, copyright protects the form in which ideas are expressed (the essay, the novel, the news story in the paper or on the blog) but it does not protect the ideas themselves. Nobody owns ideas. You might write the most insightful, original, and brilliant blog post on how to achieve peace in the Middle East or reduce carbon emissions, but from the moment you publish the post anyone may seize upon that idea to expand upon it, analyze it, criticize it, or discuss it in any way they like. What they can’t do is reprint your expression of the idea, without your permission. (And, at least in academia and among reputable publications, they ought not to present the idea as their own, or even to discuss it without first acknowledging that it is your idea. However, because copyright does not protect ideas, the law does not punish plagiarism of ideas. For more information on the distinction, refer to the section on Copyright Infringement.)

Second, copyright does not protect facts. No matter how long and hard you work to uncover and report facts, no matter how significant the impact of your reporting, you don’t own those facts. Anyone can repeat them, so long as they do not copy your story itself. By the same token, of course, you can appropriate facts that someone else has reported, without copyright concerns. (You ordinarily have an ethical obligation to credit the source of your facts, but it’s not a copyright obligation.) For more information on the types of works not covered by copyright, consult the section on Works Not Covered by Copyright.

As these principles suggest, copyright in its classic formulation is an effort to balance two often-conflicting goals. We want to encourage people to report the news, create art, publish works of history and science, and generally advance knowledge. The law provides the creators the exclusive ownership of their works for a limited time so that they can make money from them. On the other hand, we want to encourage a free flow of ideas, discussion, and intellectual synergy. Facts and ideas are put into the public domain at the moment of birth. In the words of Oliver Wendell Holmes, "the best test of truth is the power of the thought to get itself accepted in the competition of the market…. That at any rate is the theory of our Constitution." Abrams v. U.S., 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).

This effort to achieve balance naturally produces conflict. How can you challenge a blog post proposing a new way to reduce carbon emissions unless you can quote from the copyrighted post itself? Requiring you to get the original author’s permission would certainly inhibit the free flow of ideas and would come very close to giving that author control over the idea. To ease this conflict, the law recognizes a principle known as "fair use," which is simply the freedom to quote from another’s copyrighted work in the course of creating your own copyrighted work.

There have always been unspecific but sensible limits to this principle – you generally can't, for example, “quote” another’s work by reprinting it in its entirety, even if you threw in a few new words of your own (on the other hand, if the original work was only a few paragraphs long, you might even be able to do that in some circumstances). Generally, courts recognize that if the borrowing is not excessive, that if it advances the creation of a new work, and if it does not undercut the market for the original work, the use is fair. The section on Fair Use in this guide provides more information on the fair use doctrine.

In the digital era, "fair use" has become a battleground. No one challenges the original principles, but instant reproduction and worldwide distribution of any digital work is within everyone’s reach. Some creators of copyrighted works – record labels and movie distributors most prominently – have imposed electronic lockdowns, known as digital rights management, on their works. This has led some to claim that these lockdowns extinguish their fair use rights.

There is another aspect to this political battle. The Constitution authorizes Congress to protect writings and discoveries for "limited times." In the 19th century, a "limited time" meant no more than 28 years after publication. For most of the 20th century, it meant up to 56 years. But since 1998, it has meant for the life of the author and for an additional 70 years. So, if a 25-year old author creates a work in 2008 and lives another 60 years, that work is protected by copyright until 2138, an extraordinary 130 years. By that measure, most of the works of Henry James and Mark Twain would still be copyrighted today. Many critics of the current copyright structure point to this lengthy protection as an unwarranted distortion of “limited time,” but the Supreme Court upheld the law in 2003. (As a rule of thumb, any work published before 1923 is probably now in the public domain; any work published since then probably is not, but there are exceptions to both those guidelines.)

Because a copyright is intangible property (hence, "intellectual property," a field that also includes patents, trademarks, trade secrets, and now URLs and domain names), it can be bought, sold, given away, bequeathed at death, and licensed to others. Indeed, licensing is an active field in copyright law. An author’s contract with a publisher is a license; while the author may retain the copyright, the publisher shares the revenue and edits, prints, and distributes the work. Works may also be sold outright, as newspapers often require freelancers to do. Ownership may also vest in the employer from the outset, if creating copyrighted works is part of one’s employment. For more information, visit the sections on Licensing Your Content and Getting Permission to Use the Work of Others to use someone else's work.

There are other aspects to copyright law that can be useful to know. For example, works of the US Government are never copyrighted and hence can be reproduced without payment or permission. Copyrighted works such as music, movies, and drama may be performed or displayed (but not copied) without permission in the course of face-to-face teaching and distance learning in schools and universities. A library user is generally entitled to make a single copy of a copyrighted work for private study and scholarship.

In the sections that follow, we lay out further specifics about the principles described above. This guide is not a full treatise on copyright law, but it does provide what we hope is a good understanding of what you need to know, both to make intelligent use of others’ creative works and to protect your own.

What Copyright Covers - Describes copyrightable subject matter and the rights granted under copyright.

Copyright Ownership - Explains different types of authorship, the registration and notice process, and how to license your work to others.

Using the Work of Others - Describes the types of works not covered by copyright, the doctrine of Fair Use, linking to another's work, getting permission to use another's work, the issues that arise from circumventing copyright controls, and copyright infringement.

Notice-and-Takedown - Outlines the steps involved in issuing and responding to a DMCA takedown notice related to copyrighted material and explains the immunity provision for user-submitted content under the DMCA.

Copyright and the Demise of Newspapers

David Ardia — Thu, 08 May 2008 16:01:29 -0400

Neil Netanel, a highly regarded legal scholar, has an interesting post on Balkinization entitled "The Demise of Newspapers: Economics, Copyright, Free Speech." Netanel, who has written extensively on copyright issues, posits that part of the reason for the decline in newspapers stems from Internet competitors that build on the content and value that newspapers create. He suggests that imposing a statutory license or levy on commercial Internet service providers and news aggregators might be a workable solution for ensuring that newspapers receive compensation for their investment in quality reporting.

While I think he gives too little credit to citizen journalists/media, equating them all with bloggers and asserting that they are largely "parasitic," his central points are mostly valid:

[N]ews and opinion blogs are largely (but certainly not entirely) parasitic on the institutional press. They copy, quote from, discuss, and criticize stories reported in the press far more than engaging in original reporting or linking to other blogs. And just like peer-to-peer traders of music and movie files, online readers copy and distribute stories from newspaper Web sites to their friends via email and social network sites. Especially for the young, trading copies of newspaper stories often substitutes for visiting the paper's Web site.

As Netanel correctly notes, news organizations (be they old media or new media) that do original reporting suffer from the classic public good problem: while they invest in investigating, reporting, editing, and fact checking their work, their competitors can simply use the finished product without making a similar investment in original reporting. One remedy to this problem proposed by the Pew Research Center’s Project for Excellence in Journalism involves having news providers create a consortia to "charge Internet providers and aggregators licensing fees for content."

But this raises a host of concerns, which Netanel points out at the end of his piece:

To my mind, giving news providers a proprietary veto over online news aggregators', Internet providers', and bloggers' referencing of news stories would impose an unacceptable burden on speech. I argue in Copyright's Paradox that, all in all, holding such referencing to be fair use or otherwise noninfringing of copyright is the best solution. But I can see advantages to imposing some sort of statutory license or levy on commercial Internet service providers and news aggregators who profit from news providers' investment. Newspapers should not have a veto over who references their stories or how. But ensuring that they receive some compensation for their investment in quality reporting might be our only hope for maintaining that investment and the vital fourth estate benefits that flow from it.

You can read the entire post here. I also recommend reviewing the comments to his post, which has, as you would expect, elicited some good discussion.

Crazy Legal Battle Between Newspapers Settles, But Leaves Worrisome Fair Use Decision Intact

Sam Bayard — Wed, 07 May 2008 22:49:31 -0400

Many readers are probably familiar with the meltdown of the Santa Barbara News-Press, a local daily newspaper in Santa Barbara, California. Starting in 2006, reporters and editors of the newspaper clashed with now-infamous Wendy McCaw, controlling shareholder of Ampersand Publishing LLC, which owns the paper. Tensions swirled around McCaw's perceived intervention in editorial and reporting judgments, traditionally left to the paper's professional staff. The controversy resulted in a slew of resignations and firings, chronicled in the documentary film, Citizen McCaw. The brouhaha spurred a bizarre lawsuit over copyright infringement, which pitted the News-Press against another local paper, the Santa Barbara Independent. According to the Independent, the defendant in the lawsuit, the case recently settled. While this might come as a relief to the Independent, it leaves a questionable fair use decision on the books.

The trouble began when Nick Welsh, an editor with the Independent, posted a copy of an unpublished News-Press article (obtained from an unknown source) on the Independent's website. The draft article, written by former News-Press reporter Scott Hadley, provided a fact-based account of the resignations of several key News-Press staffers. When the News-Press declined to publish Hadley's article and instead published a "note to readers" from Wendy McCaw, Hadley resigned in protest. Approximately a week later, the draft article showed up mysteriously at the Independent's office, and Nick Welsh used it to write a critical blost post -- Angry Poodle: The Poodle Barks Again. The post commented on Hadley's resignation and criticized the News-Press for publishing McCaw's "note to readers" instead of Hadley's article. Welsh included a hyperlink in the post that led to a scanned PDF copy of the entire Hadley draft hosted on the Independent site. According to Welsh, he posted the draft in order to expose and criticize what he saw as the censorship of an unflattering article.

Ampersand Publishing sued the Independent in federal court in California, claiming that Welsh's posting of the draft article constituted copyright infringement. The complaint included other legal claims, including a crazy theory that the Independent had misappropriated the News-Press's trade secrets by acquiring and publishing the draft article. For details on the lawsuit and links to court documents, see our database entry, Ampersand Publishing v. Santa Barbara Independent. The most interesting legal issue in the case is fair use, and the Independent asked the court back in September to grant it summary judgment on that ground. At the same time, the News-Press moved for summary judgment as well, arguing that Welsh's use was not fair as a matter of law. Despite the newsworthiness of the very existence of the draft article itself, and the clearly critical bent of Welsh's use of it, the court held in a November 2007 decision that it was not fair use, essentially handing a victory to the News-Press on its copyright claim. I would have blogged about this decision earlier if I had known about it, but I just found it today, so here goes.

On the first fair use factor -- the purpose and character of the use -- the court found that the Independent's use of the draft article for purposes of criticism was "transformative," but found that it used more of the article than was necessary to achieve its critical purpose. The court noted that another local paper, the Santa Barbara Nexus, had also published an account of the resignations relying on the draft article, but had only summarized the article's contents and selected a few quotes, without publishing it in its entirety. The court's reasoning, while not wholly unreasonable, disregards the fact that Welsh's objective in using the article may have been different from that of the Nexus. He wasn't simply reporting on the resignations. He was criticizing the paper for publishing "defensive editorializing" (his lawyers' words) rather than Hadley's unflattering factual account. If we credit the Independent's argument, as the court was obliged to do on a motion for summary judgment, Welsh used the article to set up a contrast between two drastically different accounts, and it is not clear that he could have achieved this contrast effectively without using the entire Hadley draft. At least in this author's view, it is dangerous to have a court taking such a narrow view of what is and is not necessary for successful criticism. The court's conclusion on this first factor also poisoined its analysis of the third fair use factor -- the amount and substantiality of the portion used.

Perhaps the greater blunder was the court's analysis of the fourth fair use factor -- the effect of the use upon the potential market for or value of the copyrighted work. Here, it is hard to get past the obvious conclusion that the Independent's use could not have harmed the market for the draft article because there was not, and never could be, a market for a draft article that the News-Press had decided not to publish. Moreover, the news content in the draft article was stale -- the local and national press had already covered the events referred to in it. And, because of its critical character, Welsh's use of the draft did not function as a substitute for the original work, which is the type of economic harm that copyright law protects against. The court danced around these issues, relying on what looks to me like formalist reasoning wholly divorced from the actual economic realities at stake.

Admittedly, other courts have held that a plaintiff's decision not to publish a work does not mean there is no harm to the "potential market" for it, and the Supreme Court has indicated that fair use has a narrower scope when it comes to unpublished works. But those cases involved unpublished works that possess great economic potential (e.g., J.D. Salinger's unpublished letters, which would go for millions) or works on their way to publication (like Time's interview with President Ford). Here, even if the News-Press changed its mind and decided to publish Hadley's draft article, it would be worthless from an economic standpoint (and was already largely worthless at the time Hersh posted it). This case looks more like Online Policy Group v. Diebold, Inc., 337 F. Supp. 2d 1195 (N.D. Cal. 2004), where the court held that Internet posting of unpublished Diebold emails was fair use, in part because of the critical purpose of the use and in part because there was no conceivable market for the emails. In addition, in this case, as in Diebold, it is apparent that the reason the copyright owner was asserting copyright was to suppress criticism and commentary, not to protect its economic interests from a substitive use.

So, the lawsuit is over and the newspapers can go back to their business. But, because there will be no appeal to the Ninth Circuit on the fair use ruling, we're left with what I fear may be a dangerous precedent for cases involving critical uses of copyrighted materials on the Internet. Maybe the facts are too unique to make this case cause for much concern. I don't know, I'm still digesting it.