Expanding Fair Use To Reform Copyright Law 229
Hugh Pickens writes "Gigi Sohn, President of Public Knowledge, presented a six-step program for reforming outdated US copyright laws in a speech at the New Media conference at Boston University.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."
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.
my momma used to say... (Score:3, Insightful)
Re:right (Score:3, Insightful)
Re:right (Score:5, Insightful)
Falling on deaf ears (Score:4, Insightful)
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."
Re:right (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: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.
Re:Thank International Law . . . (Score:2, Insightful)
-mcgrew
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...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.
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.
The sad part is (Score:2, Insightful)
Witness that the *AA's (the main litigants in most copyright cases) seek to kill technologies they didn't think of, a la Napster, Grokster, Bittorrent, etc., simply so they can increase their revenue streams. They now salivate, *years* after the introduction of P2P and streaming, at the thought of charging "consumers" not for a show/song/episode/album, but on a per-device price for the *same content*.
Copyright is a barely sustainable concept, and then only when the original author/s of the content hold them.
When corporations get into the mix, we all get screwed.
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
Re:this brings to light an interesting phenomenon (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 a bad law).
The only way the law hasn't matched technology is where it can't go at all; the international internet (I'm being purposly redundantly redundant here).
You have an example of where the law doesn't match technology? I personally see no difference between sampling on a computer and recording on a tape, or swapping P2P vs trading tapes. The only difference is the scale.
-mcgrew
(PS- take your meds
Re:right (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 should boycott those companies. Don't buy or use the goods long enough and the companies will change. The "free market" will work itself out on its own. It's not the government's job to fix people's problems.
There's nothing moral about it. Nothing immoral, either. If anything, his stance is amoral in my opinion.
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
Re:OT: Mere transforms shouldn't get a fresh (c) (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 idea in the garbage where it belongs.
If your work is not original, or is not creative, then it is not copyrightable, no matter how hard it was to do. It's deliberately so.
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.
Re:enforce what we have (Score:2, Insightful)
You think any smart lawyer swears to things him or herself? One of the first things you learn as a lawyer is, "don't believe everything your client tells you."
Re:right (Score:2, Insightful)
Re:right (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. someone sued you and won them as damages) then you wouldn't, regardless of your opinion on the matter. Whether you own something has more to do with everyone else allowing you to than whether you want to.
Anyway, what I'm saying is that if you are going to give a copyright to an author, then isn't that author better-suited to manage his own financial affairs than you are? He knows more about his own condition than you; he knows how much he values his copyrights than you; he is more interested in his own welfare than you will ever be. So let him use and dispose of it as he wishes, and don't interfere. If he makes a good choice, or a bad choice, it is better for him to have made his own choices than for you to make them for him because you are paternalistic and lack faith in him. Authors are not children, and should not be treated as such.
Re:right (Score:3, Insightful)
Petty bickering over pork projects is one of the causes of the bloated situation we have now. Regional disputes also are not good for the country.
Every Senator should have the best interests of the entire country at heart -- and while their state of origin will influence their thinking, they do not represent just the state that voted them into the Senate.