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Hugh Pickens writes "Gigi Sohn, President of Public Knowledge, presented a six-step program for reforming outdated US copyright laws in a speech at the New Media conference at Boston University.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."
Re:right (Score:5, Interesting)
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.
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.
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.
Re:Um (Score:3, Interesting)
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:Reform is needed... (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
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)
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.
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.
Re:Wordy (yawn) article but I RTFA (IMBKH) (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 works, it would force holders to assess the value of the work against the fee, thus causing more works to enter the public domain sooner, and for the companies that choose to maintain their copyrights for extreme periods, it would likely create a need for additional creative input to generate sufficient revenue to justify the high renewal fee.
As for Technological Restrictions, notice is not enough. Technological restrictions should be required to expire with the copyright, and allow fair use in order to qualify for protection under the DMCA at the very least. They should probably be completely illegal if they don't make those provisions.
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.
-mcgrewRe: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?
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.
Re:right (Score:3, Interesting)
Because he is supposed to represent ARIZONA, not Illinois.