copyright Archives - Ramblin' with Roger

The Copyright Law Is A Ass

Article I, Section 8, Clause 8 of the United States Constitution, known as the Copyright Clause, the Copyright and Patent Clause (or Patent and Copyright Clause), the Intellectual Property Clause and the Progress Clause, empowers the United States Congress:
“ To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

Note the word “limited”.

The current law says that copyright is for the “life of the author plus 70 years and for works of corporate authorship to 120 years after creation or 95 years after publication, whichever endpoint is earlier. Copyright protection for works published prior to January 1, 1978, was increased by 20 years to a total of 95 years from their publication date.”

I’d like to say that the continuing extensions of the copyright law is unconstitutional. I’d LIKE to say that, but I can’t, because the Supreme Court ruled otherwise in 2003.

To be fair, this law is more or less consistent with the Berne convention, signed by the United States in 1988

But in a more fundamental way, there seems to be a gross lack of understanding about copyright generally. Copyright protection is not an absolute. People can use other people’s copyrighted materials all the time through fair use, use in reviews, parody.

An interesting take on copyright comes from Paul Rapp, intellectual property lawyer from around these parts. He is also F. Lee Harvey Blotto, drummer of the almost legendary band Blotto.

Web portals like YouTube are protected by the “safe harbor” provisions of a law called the Digital Millennium Copyright Act, which says that YouTube generally doesn’t have to actively monitor what’s being posted on its site. Once the portal is informed that there’s infringing stuff posted, it has a duty to investigate and take down offending material. This merely reaffirms that it’s the copyright owners’ duty to police its copyright, not someone else’s. In other words, it’s Viacom’s job, not YouTube’s.

This makes perfect sense. Because often the copyright owner is fine that their stuff has been posted without permission. A few years ago I noticed that folks had posted Blotto’s old videos on YouTube. My reaction was “great, now I don’t have to do it.” I’d been meaning to do it myself but was too lazy to figure out how. We wanted the videos up, for whatever promotional value they might bring. Somebody even posted “Lifeguard” under the heading “Worst 80’s Video Ever.” It’s closing in on a quarter-million hits, and the comments are amazing. And I ain’t touchin’ it.

And I’m certainly not alone here. Lots of copyright owners turn a blind eye to “unauthorized” posts…

Several times a day someone sends me a YouTube link, usually of some old music video that’s brilliant, funny, or revealing, often all three at once. Does somebody own the copyrights to these things? Undoubtedly. Did they put them up themselves? Maybe, maybe not. And are they mad that their stuff’s on the internet? Probably not. They’re probably delighted.

So copyright, both in law and as a practical matter, is not as “obvious” or “simple” as it may appear.
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And speaking of intellectual property gone awry, I think it’s reprehensible that one company can “own” a patent on human genes and I was thrilled when the company Myriad lost a ruling over breast cancer-gene patents, a suit brought by the ACLU, plus the March of Dimes and a number of medical organizations.

ROG

January Rambling

Busy month coming. Black History Month at church, and I’m doing two adult ed sessions. One will be helping to hone my presentation at the Underground Railroad Conference in Troy, NY at the end of the month.
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The one weekend I won’t be doing BHM stuff, I’ll probably be here.
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Finally gave blood on January 18. I was scheduled to donate two or three times before that, but just didn’t feel up to it. The four months between donations is the longest I’ve gone since I had to pass for a year when I got rabies shots. The weird thing is that twice in a row, I got reminder cards about my donation six to eight days AFTER I was scheduled to donate; unhelpful AND a waste of money.
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I was in the home office. There was this thin book that was falling off the shelf. Turned out to be The Connoisseur’s Guide to the Contemporary Horror Film by the late Chas Balun, an item I hadn’t thought about in years. When I was working at this comic book store called FantaCo, we sold many, many copies of the item. I went over to Steve Bissette’s site to let him know about this, and wouldn’t you know, but that he had just written about Chas and that very booklet! How odd.
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ABC-TV is plugging this new show called The Deep End, about some young lawyers. The voiceover says, “From the network that brought you Grey’s Anatomy”, as though network affiliation is a reason to watch the show. Yet it DOES remind me of Grey’s in that there’s a guy under water; Meredith Grey practically drown a couple seasons ago. I shan’t be watching; hey I got 85% of my DVR capacity used up.

This reminds me of a poster SamuraiFrog wrote about, the text of which was “from the studio that brought you THE PROPOSAL.” as though anyone would go to a film for that reason. Goofy.
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This incredible machine was “built as a collaborative effort between the Robert M. Trammell Music Conservatory and the Sharon Wick School of Engineering at the University of Iowa. Amazingly, 97% of the machines components came from John Deere Industries and Irrigation Equipment of Bancroft, Iowa.
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A resource guide re Haiti.
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Anyone know the shelf life for amoxicillin capsules? Wayne John wanted to know.
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Another SF-found piece, on gay marriage, a satire.
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Thom Wade reminds me why I’m not a Mormon
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The Brand Identity Guru says The Bachelor and Bachelorette Brands Can’t Be More Racist. I don’t watch, but I’d be interested in the thoughts of those who do.
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Was Jack Benny in the movie Casablanca? Mark Evanier doesn’t think so, but he’s not sure.
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What Could Have Been Entering the Public Domain on January 1, 2010 under the law that existed until 1978 . . . Works from 1953.
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Hard to find music and movies.
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Salon finally figured out the joy of the Kennedy Center Honors. See also Kennedy Center Honorees at the White House.
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Scholar Ladies a video response to Single Ladies by Beyonce.
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Finally, the wife is trying to keep the daughter away from aspartame, the stuff in Equal and the other little blue packets, at least in the US, at least it is most of the time. And the stuff shows up in the darnedest places, such as packaged fruit cups one sends the daughter to school with.
But I’ve discovered that the DelMonte fruit cups, e.g., uses sucralose, the substance in Splenda and the other items in the yellow packet. Anyone aware of health issues for children with sucralose?

ROG

March Ramblin’

I find myself thinking a lot about Natasha Richardson, which is strange because, unprompted by IMBD, I couldn’t tell you one thing I’d seen her in; Nell and the remake of The Parent Trap, as it turns out. Whereas I know about lots of films in which I saw her mother, Vanessa Redgrave, or her husband, Liam Neeson.

Besides the strange way she died, there’s that weird argument that always seems to happen when a famous person passes away. In the comments to this nice article in Salon, one person essentially hijacks the issue with “Aren’t there more important things in the world to worry about?” Lots of back-and-forth that you can read yourselves. Or not.

My feeling is that if someone is uninterested in a “celebrity death”, then he/she oughtn’t to pay attention. But it’s one thing to say, “I don’t care.” It’s quite another to say, “And you shouldn’t either.” People should be allowed to grieve even those they’ve never met, yet because of their artistry or personality or for whatever reason, has moved them in some way. Their loss is real.

And invariably, the death of a celebrity shines a light on the cause of said death, if it’s unusual. (“Wear a helmet when skiing!” “No, it’s too restricting to see and hear properly.”)

I felt the same way when Jennifer Hudson lost three family members to murder. There were those who offered, “People are murdered all the time in Chicago. Why should I care about THIS?” I say: by all means, please don’t. But offer not your analysis about “the celebrity culture”, as though others might not be moved by the American Idol/Dreamgirls performer’s situation. Besides, even in the Windy City, a triple homicide is not an everyday occurrence.
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Looks as though I’ll still have Dora the Explorer to deal with:
The daughter would normally “age out” of Dora in a year or two. But now that the daughter has dubbed the tween explorer as “beautiful”, I guess I’ll be stuck with her for a little while longer. Why they just didn’t come up with an older cousin so that the original Dora could entertain the younger crowd, I just don’t know.
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I found this background for a seminar interesting.
In June 2008, the Canadian government introduced Bill C-61, new copyright legislation that closely followed the U.S. Digital Millennium Copyright Act. The public response to the bill was both immediate and angry – tens of thousands of Canadians wrote to the Minister and their local Members of Parliament, leading to town hall meetings, negative press coverage, and the growing realization that copyright was fast becoming a mainstream political and policy issue.

The “Canadian copy-fight”, which includes many new advocacy groups and the Fair Copyright for Canada Facebook group that has over 90,000 members, has attracted considerable attention from the mainstream media, with many wondering how copyright had emerged as a contentious policy issue.

So the Canadians are having as much trouble with expanding the copyright law as some Americans did a decade ago, including (need I say) me.
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There’s an online petition to save Proctor’s Theater in Troy, NY from demolition. Apparently, the current plan is to “save the facade” and tack on behind it some ugly badly-built auditorium. The rest of the beautiful building is to end up in the already overloaded landfill in Albany County.

Frankly, I’m not big on online petitions. Frankly, I doubt their efficacy, especially when the signatories include people who are not constituents of the officials taking an action. But the real audience is not so much the folks who run Troy City Hall as it is Governor Paterson. “The city of Troy is applying for a grant from New York State to demolish the theater. The petition to Governor Paterson is asking him to grant money for the renovation of the theater, not its destruction.

“The theater was built in 1914 and remains the last existing grand movie palace in Troy. While the building is in disrepair, it does not need to be torn down. In 1979 Proctor’s was placed on National Register of Historic Places – but this distinction may not save it from the wrecking ball.”

Anyway, I add my name here because, in some minuscule way, I helped with the renovation of Proctor’s in Schenectady in the late 1970s by selling ads and performing in the arcade for an April 1978 fundraiser. It’s also the building I worked in for nearly 11 months. Here’s a picture of Proctor’s Schenectady – Troy’s is similar though now in disrepair – but, as the petitioner noted, “with vision and leadership it can look like this again!”

Fair use

If you follow the comic book blogs, there’s been a war of words over whether the demise of Scans Daily, which showed some comic book pages and commented on them, is a defeat for the comic book consumer or a victory for the comic book creator. (You can read about it lots of places – I’m picking the narrative by Gordon because his narrative is short, concise, not vitriolic – and because today is his birthday.)

All of the articles I’ve seen make use of the term “fair use”. I’ve copied the copyright page brochure on fair use, which I’m going to use in its entirety without concern, because it’s a federal government website and stuff produced by the federal government, with rare exceptions, cannot be copyrighted. The Boston Globe famously published the Declaration of Independence on July 4 a few years back and slapped on a (c) Boston Globe; nice try, that.

But, first, here’s the core paragraph:
The distinction between “fair use” and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.

“Not easily defined.” That means that, short of taking a recent book, pulling off the cover, and re-covering it as one’s own, it just ain’t that easy.

One of the rights accorded to the owner of the copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords. This right is subject to certain limitations found in sections 107 through 118 of the Copyright Act (title 17, U. S. Code). One of the more important limitations is the doctrine of “fair use.” Although fair use was not mentioned in the previous copyright law, the doctrine has developed through a substantial number of court decisions over the years. This doctrine has been codified in section 107 of the copyright law.

Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered “fair,” such as criticism, which is what Scans Daily was claiming to do, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:
1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
In other words, if I use your copyrighted item, will I be profiting from it financially?
2. the nature of the copyrighted work;
Here’s an example. If I find a photograph of a cover of a record album and use it, there’s enough law out there that says that I’m PROBABLY safe. That is UNLESS that photo is “transformative” and captures the album cover in a new and artistic way.
3. amount and substantiality of the portion used in relation to the copyrighted work as a whole;
As librarians, we struggle with this all the time. A couple of pages is OK; a whole chapter? Well, how many chapters ARE there?
and
4. the effect of the use upon the potential market for or value of the copyrighted work.
In other words, if I use your copyrighted item, will you be suffering from it financially? It seems that the courts have leaned heavily on this fourth point in determining whether it’s “fair use”.

The distinction between “fair use” and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.
In my first year doing this blog, I did a series of pieces about a book by Sid Jacobson and Ernie Colon in which comic strips were done with a supposed African-American perspective. It was difficult to explain without showing specific examples. So I ended up actually showing about one panel in four. I felt a bit easier about this because, as far as I can ascertain, the book is out of print; certainly, I’ve never seen it on Amazon. Did I make the “right” decision concerning copyright? I dunno.

The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use: “quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations; use in a parody of some of the content of the work parodied;
Parody, the stock in trade of MAD magazine, e.g., is a huge one, not previously mentioned.
summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy;
As a matter of fact, our library HAS done this, rarely.
reproduction by a teacher or student of a small part of a work to illustrate a lesson;
Elsewhere in copyright law, there’s the mention of “spontaneity”. Let’s say you’re a teacher and you happen across an article in a magazine you thought would illustrate the lesson plan. You might make the case for making 20 copies of the article. Say, though, it’s next semester; deciding to copy that same article would hardly be considered spontaneous.
reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.”

Copyright protects the particular way an author has expressed himself; it does not extend to any ideas, systems, or factual information conveyed in the work.
So a second book on the same historical event as the first is not in violation of copyright unless the second book substantially lifts the WORDS used to describe the event.

The safest course is always to get permission from the copyright owner before using copyrighted material. The Copyright Office cannot give this permission.
I was surprised to get in a discussion with a librarian about the AP copyright infringement case over Obama’s image. She thought Shepard Fairey should have sought permission from the AP to use the picture. I, having worked with artists, tend to see the work as transformative, tend to side with Fairey. (She also thinks Fairey is arrogant, which is probably true, but irrelevant.) I suspect it would be less of an issue had Fairey not been making lots of money from the image.

When it is impracticable to obtain permission, use of copyrighted material should be avoided unless the doctrine of “fair use” would clearly apply to the situation.
Except that this document has already stated that when fair use would “clearly apply” does not exist.
The Copyright Office can neither determine if a certain use may be considered “fair” nor advise on possible copyright violations. If there is any doubt, it is advisable to consult an attorney.
Thus keeping attorneys employed for another generation.
ROG

Interesting Copyright News

I’m forever fascinated with copyright law. Article I, Section 8, Clause 8 of the US Constitution empowers Congress “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Note the words useful, exclusive and especially, limited. I’m not going to go into a dissertation about how the changes in copyright law in the United States I believe is contrary to the original intent.

I can’t find it presently, but there was a recent story about a guy who played on the original sessions for the Beatles’ album Revolver (1966) and that his payments would end soon because British copyright law’s term will have ended. It was suggested that Britain might seek a copyright law similar to that currently employed by the United States. To which I only have five words to say: NO, NO, NO, NO, NO!

Other interesting recent stories from New Media Law & E-Commerce News, Vol. 13, No. 1, January 5, 2009, ISSN 1489-954X, which can be found in detail here include:

Music Industry Set to Abandon Mass Piracy Lawsuits – RIAA stops pursuing legal action against ISPs

Harry Potter Lexicon Decision Analyzed – by the ARL and the ALAs. The article, by Jonathan Band, is entitled How Fair Use Prevailed in the Harry Potter Case (PDF).

Judge Rules Facts Are Not Copyright-Protected – this re: two movies about the 1970 plane crash that killed the Marshall University football team.

Hasbro Drops Lawsuit Against Makers of Scrabulous – R.J. Softwares won’t use the term “Scrabulous” and made changes to the game after the lawsuit had been filed.

Canadian Copyright Board Increases Tax on Blank Compact Disks- from 21 cents to 29 cents.

In each of these cases, I feel that common sense has won out.

Then there was this situation: $900 Million Copyright Suit Filed Over Illegal Use of Subscription Web Site
I don’t want to say it’s a frivolous lawsuit, since clearly harm was done to the copyright holder, about $5000 in fees. But to get from $5K to nearly a billion dollars is a circuitous argument that practically begs for tort reform, something I generally think an overstated argument.

ROG