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Expanding Fair Use To Reform Copyright Law
Posted by
kdawson
on Thu Nov 08, 2007 11:08 AM
from the distilled-common-sense dept.
from the distilled-common-sense dept.
Hugh Pickens writes "Gigi Sohn, President of Public Knowledge, presented a six-step program for reforming outdated US copyright laws in a speech at the New Media conference at Boston University. Sohn expressed no patience with the 'disconnect between the law and the technology' of media production and distribution. He puts Fair Use at the top of the list for changes that will help return balance to copyright laws that have limited innovation, scholarship, creativity, and free speech. In addition to the four-part legal test for fair use currently on the books, Sohn recommends that Congress add incidental, transformative, and non-commercial personal uses to the list of fair uses enumerated in copyright law, and in addition expressly provide that making a digital copy for the purpose of indexing searches is not an infringement. Beyond Fair Use reform, Sohn advocates punishing copyright holders who 'knowingly or recklessly' send out false takedown notices, protecting the manufacturer of a technology from liability for the infringing activity of others if the technology has substantial non-infringing uses, promoting fair and accessible licensing of copyrighted works, limiting damages for the use of orphan works, and requiring copyright holders to provide notice of any limitations on users' ability to make fair or lawful uses of their products."
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right (Score:5, Insightful)
'Cause I'm thinking the industries that give millions might not be in favor of any legislation that would do any of this stuff.
And I'm thinking that the millions of dollars are gonna talk louder.
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Re:right (Score:5, Interesting)
Parent
Re:right (Score:5, Insightful)
Similar to the DRM problem. The average user/consumer has no deep knowledge of the esoterica behind copyrights, etc. They simply want what they want. They don't realize that the content they get is not nearly as expansive as it would be if copyright and "fair use" were less of an issue. Marketing keeps people from caring -- "pay no attention to that fellow behind the curtain."
Parent
Re: (Score:3, Insightful)
And this is great for corporations who can afford to have a legal department. Having too many laws and laws that are overly complicated really stacks the deck against the average person. Corporations and government love it though, because they can force us to play in a game where they know and interpret the rules while we don't. We definitely need organizations like this to level the playing field.
Re:right (Score:5, Interesting)
Here's how our government works: the great American corporation Sony gives ten million $ to the Democrat candidate, and another ten mil to the Republican. No matter who loses, Sony wins. When Sony's interests go against yours, you lose.
We're not going to get copyright reform. Here's another two reforms we need before copyright reform is possible but won't get either:
- You should not be eligible to contribute to a candidate you're not eligible to vote for. I should not be able to contribute to John McCain unless he runs for President, or moves to Illinois and aomeone from Arizona shouldn't be able to contribute to Obama unless Obama m,oves to Arizona or runs for President.
- You should not be allowed to "contribute" to more than one candidate in any given race. "Contributing" to more than one candidate in a race is simply a badly hidden bribe.
-mcgrewParent
Re:right (Score:5, Interesting)
You should be able to donate to as many candidates as you like. What if you want Candidate A to get elected, but you really like the message of candidate C? Why can't you support both if you like?
Parent
Re: (Score:3, Interesting)
Because he is supposed to represent ARIZONA, not Illinois.
Re: (Score:3, Insightful)
This kind of reasoning abounds, but it's not really correct. In your example, McCain was not elected to represent the people of Arizona. He was elected by the people of Arizona to uphold and defend the Constitution (read the Senate oath of office) -- and by extension, represents the people of the US, not just the people of AZ.
Petty bickering over pork projects is one of the causes of the bloated situation we have now. Regional disputes also are n
Re:right (Score:5, Insightful)
Parent
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The problem is your average consumer is a sheep -- Pink Floyd knew what they were talking about. You can't get enough people interested in the idea (voting is important, DRM is bad, copyright is broken, etc.), because they don't really see how it impacts them... until it does. And even then, only a few people go out and bang the war drum to try and stir up resistance. When we're talking hundreds of millions of consumers being affected but only thousands stepping up to do anything about it, you're looking at
Re:right (Score:5, Insightful)
- 28 year term -- non-extendable; non transferable. It's good to make money off your success. It's not good to rest on your laurels and hope to retire off your one-hit wonder -- that doesn't give any incentive for new creation. And your heirs shouldn't expect any right to be useless members of society, making their way solely on your notoriety. Just because J.R.R. Tolkien and Frank Herbert created whole universes doesn't give Christopher Tolkien and Brian Herbert exclusive rights to play in those worlds, just because their daddies made them.
- Corporations can't hold copyright, only the individuals that actually created the work. Work-for-hire would not transfer ownership to the hiring entity.
- Non-commercial violations would be allowed under fair use so long as their scope was limited. (ie, OK to share a copy with your friend for no money; not OK to share copies with hundreds of strangers for no money.)
Probably a few more, but those are off the top of my head...Parent
Re:right (Score:4, Interesting)
Why so long? Why not, say, a 7 year term, with up to three renewals. That way, if a copyright holder stops caring about his work enough to renew, the work falls into the public domain that much earlier. Historically, it's common, with most authors failing to ever renew. Further, given the economic horizons of works (e.g. making 90% of their lifetime value within at most a year, and often less time), perhaps the terms ought to be even shorter than that.
Corporations can't hold copyright, only the individuals that actually created the work.
I absolutely disagree. If an author wants to sell his copyright, who are you to tell him he can't? Is he not allowed to sell his house or his car as well? Don't be so paternalistic. If people want to do this, let them. It is not appropriate to second-guess other people's personal and business decisions in that manner except in extreme cases, and these are not extreme cases.
Work-for-hire would not transfer ownership to the hiring entity.
Meh. The work made for hire doctrine is a bit shaky, I admit, but I think it would probably be better to enlarge it than to abolish it. E.g. if you hire a wedding photographer, why shouldn't you wind up with the copyright to the photos without having to specially negotiate it? (Better still, why should they even be copyrighted? I think the public will live, and it's just one more mark in favor of requiring registration)
Non-commercial violations would be allowed under fair use so long as their scope was limited. (ie, OK to share a copy with your friend for no money; not OK to share copies with hundreds of strangers for no money.)
I'd just as soon open the flood gates on this, so long as it is natural persons and non-commercial. I wouldn't extend that protection for actively participating commercial or non-natural entities, however. (e.g. a torrent tracker couldn't carry advertising or be run by a business in order to be protected) After all, it's basically happening anyway, and it seems to not be a big deal.
Parent
Re: (Score:3, Insightful)
Copyright doesn't deal with ideas other than to say that they are uncopyrightable.
Copyright itself is not natural. It's artificial, so what is wrong with any restrictions placed upon it.
What does that have to do with anything? Remember, all property rights are artificial; that you own your car or house is merely a matter of social compact and your personal ability to defend them from intruders. If everyone in the world decided that you didn't own it anymore (e.g
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ok, stop laughing now. There are actually a couple who will vote what they think, not what they get paid to think (Ron Paul, Mike Gravel)
Re: (Score:3, Insightful)
Ron Paul is not the cure-all miracle tonic for our country. If you want to vote for him, fine, but at least be honest about what he stands for. His response to companies abusing IP and copyright would probably be that people shoul
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my momma used to say... (Score:3, Insightful)
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Falling on deaf ears (Score:4, Insightful)
Thank International Law . . . (Score:5, Interesting)
There was an earlier
Or, perhaps we should limit corporate ownership of copyright? For example, limit a corporation to only being able to license an author's work (rather than receive a transfer of ownership). This is excepted where the owner is an employee or work-for-hire. Limit the license to a one-time 10 year license. Works-for-hire are good for only 20 years.
Re: (Score:2)
There, fixed that for you! In case you didn't know, Michael Jackson owns all the copyright on the Beatles songs.
Re:Thank International Law . . . (Score:4, Insightful)
"There was an earlier /. article where a fellow showed that economically the nation is better served by shorter copyrights."
Interesting... my understanding is that the US is in favor of long copyrights because our IP is one of the only things we have left in this information age -- as Neal Stephenson put it: music, movies, software and high speed pizza delivery. I would like to see a dissenting viewpoint; does somebody have a link to that earlier article?
"The fact that Yoko Ono can be a near-billionaire for John's shaking his head and playing music should reveal how far gone copyright has become. Under the old-old standard (14 years plus 14 years), the Beatles' music would have all been public domain already."
This actually serves as an excellent example of how many people believe that strong copyright equals economic power. Yoko's sitting on all that cash and she's a U.S. resident. More to the point, she spends that money in the US and pays taxes on it. You're right that if we rolled back copyright to the 18th century standards, we'd all get to have all the free Beatles music that we want. The invisible hand being what it is, the economic benefactors would be whomever could provide it to us the most cheaply. The Beatles catalog would be available on CDs imported by Chinese corporations, and downloadable from countries where bandwidth is cheap. That whimpering sound you heard might not be Yoko softly crying in anguish, but the slow death of the USA's information-driven economy.
Having a strong economy isn't the end-all, be-all, and perhaps the unwashed masses don't really care about big-picture things like this -- so perhaps cheaper Beatles music is better for society as a whole in the short term. But, here's the thing: cheap Beatles music would not affect my life one bit. I can already buy the Beatles catalog in its entirety for a small fraction of my paycheck. It's not like it's air or water. But clean air and clean water are important to me, and I rely on the government's help for those. If a rollback to a 28-year copyright system resulted in a 1% reduction in the GNP next year because our entertainment money started going toward Russian download sites and Chinese CD pressing plants, we might not notice the effects right away, but those points add up. We might all be boiling the frog slowly while we enjoy our cheap Beatles music.
Parent
Re:Thank International Law . . . (Score:4, Insightful)
You may enact restrictive laws but it hurts you more in the long run then it hurts china/Russia/India.
Parent
Re:Thank International Law . . . (Score:4, Insightful)
-mcgrew
What I see happening is, effectively, and end-run around the "Limited Time" set forth in the constitution. As long as there is a set time frame, the test of "Limited time" is met, however, currently there is the unspoken assumption that said limited time will be expanded as the end of it gets closer, effectively making it unlimited.
this has a few major bonuses:
ergo, media wins, politicians win, we lose
Parent
Thankfully, copyright fixed itself... (Score:5, Interesting)
The Internet has been very exciting for me -- I've never put a copyright on my works, and always openly let people copy and distribute what I've created. I'm even OK with no attribution, and letting others put their name on my productions. In the long run, it increases the interest in the markets I'm in.
The little guy has rarely been helped by copyright. There are a few examples, but in general, copyright has been about protecting distribution monopolies and NOT protecting the artists or content creators. It changed when copyright lost its 7+7 year cap.
Since then, distributors have had a de facto strangehold on most markets. That's fine -- the more people have access to the web, the faster the amateur, pro-am, and casual artists will be able to distribute without the old media monopolists.
You can try to "fix" copyright, but why beat a dead horse? I get more excited from seeing the massive influx of new artists in ALL markets (music, video, cartoons, comics, blogs, etc) where the artists openly place their content for the world to use. I can't recall the guy's name (mphillips, maybe?), but there's an artist who produced pencil art of Serenity/Firefly characters (yes, they're protected for some strange reason), and he distributes the high res images freely only. He makes his money by selling his own prints -- but anyone is free to print their own. Why let the artist print? Because some people feel a MORAL obligation to compensating the artist (I do), so they "donate" to keep him going. That's how most art was commissioned until the copyright monster reared its ugly head.
The future is bright for those who don't resist the open atmosphere of the new public domain, which is what I would consider MOST of the Internet. Yes, most blogs have a copyright statement at the bottom, but the long term solution to battling people who "steal" your "work" is to just notify your fans about them, and let simple reputation take care of the rest. What happens if a big company takes your work? Good luck fighting them in court. A single artist with a Cease and Desist has almost NO chance of even going to court -- the laws are written against artists.
10 years from now, I bet we'll see even MORE people sharing the photos freely on flickr, writing freely on blogs, producing videos and music freely. Sure, all those sites have some creative commons license, but again -- who will have the money to fight infringement?
Embrace the new market -- supply is near infinite, demand is finite, so price drops to zero. But the reputation you can build from producing years of quality new content is more than enough to compensate you in the long run; financially and otherwise.
Re:Thankfully, copyright fixed itself... (Score:5, Informative)
Just to be clear, according to the Berne convention, the minute you create a work, it's copyrighted. Period. End of story. Registering that copyright simply makes it easier to enforce, if it ever came to that.
What you *should* be doing is placing your works under the Artistic License or something similar. That will ensure that those who might wish to use your works will be able to do so without fear that you'll come along later and hand them a cease and desist ('course, if you made public statements that you won't do such a thing, that changes things, but it's still advisable to just use an open license and be done with it).
Parent
Re: (Score:3, Informative)
Consequently, I stand by my original statement. It's simply far clearer to just attach an extremely liberal license to one's works, and
Re:Thankfully, copyright fixed itself... (Score:4, Informative)
This is what most people don't understand, the price will drop, but it will never reach zero cost for new goods due to the fact that there IS a cost associated with production that must be recouped.
Parent
Re:Thankfully, copyright fixed itself... (Score:5, Insightful)
In terms of economic theory, this has not been proven or even insightfully debated.
Per my own economic theory, which has roots in the Austrian school but we differ in many areas, I truly believe that even new goods have no intrinsic cost unless such cost is applied or assumed by the creator of the goods (or services). Not all creators of goods or services place an inherent cost to creation. I don't. I spend close to 20 hours a week inventing, writing, recording or whatnot, and I place absolutely NO cost on that time. My view on time preference is that my content is pure entertainment value, so the actual cost to me to write, or create, is actually negative -- I gain a profit (entertainment value) from the act of creating.
If we take this perspective (for myself), the cost of goods is negative, let us say I can assign it a value of $-10. The entertainment I've gained has an equity of $-10 because I would have to spend $10 to get the same entertainment elsewhere ($10 cost - $10 in entertainment received gives a time preference net value of $0), so for me I have ($0 cost - $10 in entertainment or a time preference net value of $0). Since I already set aside a certain amount of hours each week (consciously and subconsciously), I don't attribute those hours to my normal time preference value which has a net value of +$100 per hour. Some Austrians might factor in the entertainment "Zero Hours" into an average of the positive net time preference hours, but I don't.
Now, with a negative cost of goods, and and a near infinite supply of those goods once created, the price actually falls to a negative based on the flawed supply and demand curves. This is why I am a fan of supply and demand theory, but have written extensively on the failures when one does not consider a zero sum net time preference value or even a negative cost association. Sure, you can say that web hosting has a cost, but I use NearlyFreeSpeech, so I pay around $0.01 per megabyte transfered, and if a typical blog post or RSS feed is 3K, I can have 333 readers for $0.01, so there is SOME intrinsic cost, but it is part of my entertainment value. In fact, I receive LESS entertainment value just writing an article in Notepad than I do in Wordpress, so even the hosting charge is not considered a positive cost to me.
Do most people think this deep about creating free content? Surely not, but most people aren't aware of time preference or supply and demand curves. "Mmm, writing on MySpace blog good." Why do they do it? Because there is an inherent profit to entertaining yourself because of the zero cost, other than time preference losses.
Why do I do it? Because not only do I lose nothing (other than time I set aside to lose), AND gain entertainment, I also gain something MOST bloggers, musicians, producers and artists don't perceive as a gain: I get a HUGE response to what I create. Beyond the minimal income that advertising gives me, I get hundreds of e-mails a week with amazing insights, criticisms, comments, and debate points that I can work into my real life (work). This gives me an edge and an enhanced time preference profit because now I have MORE information to sell to my clientele.
Parent
OT: Mere transforms shouldn't get a fresh (c) (Score:4, Interesting)
This is already the case with photographs of 2-dimensional works in the USA: Due to a court ruling, if I photograph a painting that is in the public domain, my photo does not have any copyright protection.
In a perfect world, the same would hold for literal translations of text, musical recordings that are faithful representations of a public-domain score, and other mechanical transforms.
On the other hand, if I took a passage from the King James Bible and wrote it by hand in my own calligraphy, I should be able to protect it as a work of art for the usual length of time. I have added a non-trivial creative element. Likewise, musical recordings that contain a significant amount of improvisation or other deviations from the public-domain score should also enjoy a fresh copyright.
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Re: (Score:3, Insightful)
Dead wrong.
Mere 'sweat of the brow' is never a valid argument for copyright, and the notion is dead and buried in the US. See Feist v. Rural for the Supreme Court throwing the
Um (Score:2)
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Should I be allowed to make a backup copy of the latest Disney Princess movie so my daughter can put it in the DVD player herself, and I don't have to worry about replacing the original copy after it gets scratched/broken beyond the point of being able to be viewed? Should I be allowed to watch that same movie on my Linux laptop while traveling with her in a plane?
I don't mind not being able to make a copy of the movie - as long
Re: (Score:3, Informative)
Reform is needed... (Score:5, Interesting)
Copyright terms are too long, especially for things like software. While for example a piece of music may be listened to (and have commercial value) for many years, software very rapidly loses value. Do you think anyone would have much use for windows 3.1 short of a curious enthusiast or a collector/museum? Copyright terms in all cases should be shortened severely, most of the profit is made in the first couple of years after release anyway, and it's wrong to let someone carry on milking something they produced years ago. Would you continue to subscribe to slashdot if there were no new stories being posted?
Fair use needs to be extended to ensure people aren't forced to buy multiple copies of the same media to play in a car etc, and DRM needs to be clamped down on for the same reason. People also need to be able to make copies for use (this used to be considered reasonable and standard behaviour, copy the original and play the copy, if the copy gets damaged make another), especially important when kids are involved, and made worse by things like games that require you to keep the original media in the drive (even if theyre not actually reading from it).
Similarly, when copyright expires a work falls into the public domain, DRM prevents that. There needs to be a facility in place to ensure that work will be available freely once it's copyright has expired. Software for which it's copyright expires should be required to be released with source code too.
Abandonware, companies should be required to keep their old products available on a non discriminatory basis, it is unacceptable for something to be "no longer produced" in this digital age. If there is no longer mass market appeal for something, it can be made available in a much cheaper form (ie free or low cost download) and without support. The restriction should be that older media is still available for not more than it's previous cost plus standard inflation, but it's free to become cheaper, and availability should not be artificially limited (ie you should always be able to call and order it, or order online, they cant make the process overly convoluted to put you off).
As an example of why this is important, i have an Amiga here that i would like to play with for nostalgic reasons. I had one years ago, so i still have a pile of floppies containing media in various formats some of which proprietary, but i cannot obtain the program that opens them (and potentially can convert to other formats), the company that made it wont sell or provide me a copy at all. I also can't buy a TCP stack for the amiga or much of the networking apps because the places selling them no longer exist, and the downloadable versions are time-limited demos (disconnect after 30 minutes, useless).
Re: (Score:3, Interesting)
Releasing a copyrighted work into the public domain early (ie before copyright expires) should satisfy the requirement to keep something available, and remove the burden of doing so from the original publisher.
this brings to light an interesting phenomenon (Score:3, Interesting)
however, we live in an era where technological change is accelerating
such that, perhaps for the first time ever in human society, the contrast between law and technological change is taking place so fast, the law is getting challenged within a single human generation. the change is bumping up, to the effect that society's laws are actually impeding technological progress
before, it might have taken a few generations of technological change to seriously conflict with the law. so i would assert we are the first human generation to suffer from technological legal whiplash
i hope someone else has coined a better term for this phenomenon than me
Re: (Score:3, Insightful)
If the copyright law was as it was in 1901, all of Jimi Hendrix' works would be in the public domain. Windows 3.1 would be in the public domain. Steamboat Willie would be in the public domain. In fact, all the movies Disnay made prior to 1987 would be in the public domain! There would be no DMCA (now THERE'S
enforce what we have (Score:3, Interesting)
Last I looked, those were already sworn to be true under penalty of perjury. We just need to enforce it. One time. Some slimy RIAA lawyer sitting in jail for a couple of days would completely change the way it's done now.
While these changes sound good, the copyright industries have congress in their pockets, and congressmen/women openly go to them for "advice" on copyright issues. Until that changes, you can talk all you want, they won't hear you (unless you come up with cash).
As I've said before, they are cheap given the influence that you can buy. It costs just a few hundred thousand dollars to turn a congressman into your own remote-controlled robot that'll say and do what you want. The CEA needs to figure that out.
Wordy (yawn) article but I RTFA (IMBKH) (Score:5, Interesting)
The author offered no concrete suggestions, just "expand fair use". I offer a suggestion: any non-commercial use should be considered fair use. And if you sue me for copyright infringement and the courts deem my use to be fair use, I should be able to collect a kingly sum from you.
2.Limits on Secondary Liability
BZZZT! No, these tech ddin't become popular because they "challenged the status quo." They became popular because (surprise) they were USEFUL. And again, IMO TFA is wrong. There shouldn't be "limits" to secondary liability, there should be no such thing as "secondary liability.
3. Protections Against Copyright Abuse.
Am I the only one that gets annoyed when someone presents some obscure reference that I'm supposed to know about to the point that they need no link? Look, you want me to know about the "The Let's Go Crazy Baby" case then dammit, link to a Wikipedia article [wikipedia.org] about it. Hmmm... "No page with that title exists". That said, I agree with the author about his point even though it was extremely retarded to expect me to know about "lets go crazy baby". If it isn't in Wikipedia it must be pretty damned obscure.
4. Fair and Accessible Licensing
As an end-user, I should have no license, nor any need for one. Licenses are for those who wish to use a copyrighted work for financial gain. End-user licenses should be illegal, PERIOD, not merely the unenforceable clickthrough licenses.
As to music, a small sample should be considered "fair use", not unlike a quote from a book. File sharing, being noncommercial, should be fair use.
5. Orphan Works Reform
Agreed, to get copyright you should have to register your copyright. And you should havce to clearly state the year your copyrighted work was registered so one can know when it gets to the public domain.
6. Notice of Technological and Contractual Restrictions on Digital Media.
Agreed.
But the guy completely missed the most needed reform of all: Sanity to copyright lengths. IINM at the beginning of the 20th century it was twenty years. That sounds about right; you're not going to pursuade Jimi Hendrix to do any more recording!
The recording artist should hold copyright to the recording rather than the record label, as it is now.
-mcgrew (I hold two ISBN numbers)
Re: (Score:3, Interesting)
I think copyright terms should be unlimited... sortof.
They should expire every 7 years, but with infinite renewals. For each renewal, the fee should increase exponentially.
This would accomplish several things. It would give a clear legal path to the use of orphaned
Copyright Expiration (Score:3, Interesting)
The free speech right is unchanged, of course, as well as the minimal infringement people are willing to accept for a working compromise. What has changed is the commerce, and its requirements. But the basic term of the original compromise is still largely acceptable. Which was 14 years of exclusivity for printed matter.
That time is also how long it takes a teenager to grow up to consider their parents' pop songs to be folk songs like the rest of their cultural legacy. Old pop songs that survive that long are make folk songs by the folks, not by the author. The author's exclusive right is not justifiable after that balance evolves in favor of the audience's contribution. Books work the same way.
The same is true of other media, but with different speeds. Movies are "old" before 14 years pass, though the culture could survive a 14 year exclusivity for them. TV (other than movies) is old in under 10 years; talk shows in under a year; TV ads in a few months. Videogames are "classic" after the time that it takes an older brother to hand it over to a younger sister, which is usually 5 years or so.
Copyright has gone so far out of whack that it threatens both the commerce, as the music and book businesses amply demonstrate, and the culture (ditto). Copyright law should specify maximum terms before expiration of 14 years, with shorter exceptions for faster aging media. Those faster media also happen to be more profitable faster, and cheaper to produce, and more completely adopted more quickly. That balance is mandated by the Constitution. We should get back to what's right.
Then "fair use" won't have nearly as many hard boundary cases to consider.
Re: (Score:3, Informative)
There's a period within which copyright works in favor of commerce, but gradually the balance inhibits commerce.
The negative effects of relying on copyright rather than creation can also be easily seen in the music industry, as well as other entertainment media. Especially when the copyright prevents the distribution of content whose free distribution is still monetized, like advertising, branding and promoti
No Electronic Theft Act of 1997 (Score:4, Interesting)
So why don't we admit our mistake, repeal the stupid very recent law that has failed society and rethink how that act should have been written to fairly protect artists, as well as the people.
I wasn't impressed (Score:3, Insightful)
1. Fair use reform is dangerous; it is essential that a flexible approach be maintained, even though this may result in less certainty. Remember, fair use arose in the mid-19th century; could the jurists of the day have anticipated novel fair uses such as time shifting? Sohn acknowledged that position, but I don't think she paid it enough heed. The only fair use reform I would suggest, though I am ambivalent as to whether it would actually be a good idea, would be to allow facilitators of fair use to stand in the shoes of actual fair users, reversing the decision of Princeton v. Michigan Document Services.
I do agree with the proposal that copyright should be reduced so as to not interfere so much with certain uses, but these should be structured as statutory exceptions separate from fair use, rather than as a part of fair use itself. In particular, I have long advocated for a broad exception for any non-commercial conduct by natural persons. Exceptions for incidental use, and particularly the incidental copies that are inescapable when computers are involved, are also good ideas. Just not all shoehorned into fair use.
Sohn also proposes an exception to the anticircumvention statutes. That's just inadequate, however. Sections 1201 et seq all need to be repealed; it is impossible to fix them. Indeed, what we really need is the opposite provision: that if a work is published (using a broad definition of publication that encompasses public performance and display) by or under the authority of the copyright holder, the work enters the public domain immediately. Further, that one of the duties of the Copyright Office and Library of Congress will be to assist in the efforts of cracking the DRM on those works and of disseminating those works once unprotected. There would need to be a brief period of time for publishers to reissue or forfeit their already-published DRM'ed works, though that wouldn't apply to works that hadn't been published in some manner prior to the reform taking effect.
While we cannot ban DRM outright, as it is a free speech issue, nor would we want to in certain applications, e.g. private communications and information, unpublished manuscripts, etc., we can at least avoid providing the incentives and benefits of copyright to anyone who would use it for published works. Authors would be free to opt to use DRM, but would forgo legal protection. This strikes me as a fair balance.
2. I generally agree with Sohn on this point, though I don't see much point in abolishing statutory damages for secondary infringers if you're already reversing Grokster with a strict reading of Sony.
3. I generally agree with Sohn on this point as well, though really the 512 exception should be made broader, with more general language, lest a court read it too narrowly, as happened in Napster. Also, the remedies for abuse should be broad, ranging from mere money damages, to injunctive relief, and in extreme cases, copyright revocation.
4. I agree that music licensing needs to be reworked from the ground up, as it is hopelessly convoluted. However, I do not think that there should be a public performance right for sound recordings, as it seems not to have produced any incentivizing effect, and clearly harms the public interest otherwise.
Further, I absolutely abhor the idea of non-assignable copyrights of any type. If an author wants to assign some or all rights, then it should be up to him to do so, provided that no one is forcing him. The typical practice in the music industry to present contracts that are heavily weighted in the favor of the publisher does not rise to the level of compulsion. Authors are free to reject those deals, to try to negotiate for something better, and to self-publish if all else fails. Authors are not children, and do not need special paternalistic protection against making foolish deals. I'm willing to speak out against
Harmonize US copyright term with TRIPS agreemen (Score:3, Funny)
US copyright terms should simply be "harmonized" with the TRIPS agreement. The TRIPS treaty (a WTO thing pushed by the US) calls for a minimum copyright term of 50 years, and most countries have signed on. So let's take that as the US term - 50 years, maximum.
Call it the "Copyright Term Harmonization Act", and trim back US law to the minimums required by the TRIPS agreement. That's a good first step.
As part of this, provide that willfully publishing content with a false copyright date voids the copyright in the material. This punishes criminal copyright fraud (it's a crime now, but there have been no prosecutions), and will discourage re-stamping old content with new copyright dates. This provision should be retroactive.
Those are provisions one could probably get through Congress.
Let the creator/owner decide, within lmits (Score:3, Insightful)
Yes, he content owners have gone too far in fighting fair use, but they are (over)reacting to rampant and widespread theft and the fact that supposedly serious people are making excuses for theft. Look at the BitTorrent nets and you'll see pirated movies, TV shows, software, etc. Lots of it. None of this is fair use.
We need to get rid of stupid DRM schemes that limit the number of devices in my house that I can play something on. We need to allow indexing but NOT full content storage / retrieval from "caches" without the copyright owners permission. We should allow some level of sharing but not on a scale like YouTube where things are so generally available we wind up taking away the ability of the owner to have any say in the use of their works or effectively make money from those works. We need to define "fair use" in an understandable and possibly quantifiable way.
The author has a lot of reforms but the suggestions aren't balanced. We need to restore balance and not have the government confiscate one set of property, just becuase it is somewhat "intangible". People work hard to create great music, movies, software, books and the like and deserve recognition of their efforts and rights.