Finding a Balance 2: Signs of Imbalance
When life veers from one extreme to another, some of us look for balance—and recognize that balance means something other than negotiating among various extremes. The same should be true for copyright. You won’t gain balance by adding up the extreme protectionist view and the extreme anti-copyright view and dividing by two: The resulting center has no basis and cannot hold.
Nevertheless, it’s useful to look at some extremes and their consequences. Most items here fall on the extreme-protectionist side, because that’s where most of the action is: Few Americans actually argue against copyright, but many corporations and associations push for extreme protection.
No Limit Films released a movie I Got the Hook Up in May 1998. The soundtrack included “100 Miles.” That song included three notes of solo guitar from “Get Off Your Ass and Jam” by George Clinton, Jr. and the Funkadelics. The sampled music was lowered in pitch and “looped” to run 16 beats, the resulting seven-second loop used five places in the new song.
Omitting a bunch of other stuff, a district court concluded that the sampling was de minimis copying—a trifle that couldn’t justify legal action. On appeal, in 2004, this decision was reversed—with the remarkable finding that any sampling of a musical recording that’s at least two notes long could be considered an infringement. “Get a license or do not sample. We do not see this as stifling creativity in any significant way.” Notably, copying three notes from sheet music would be dismissed as a trifle—but once it’s recorded, that music gets total protection.
If that isn’t bad enough, the court claims that digital sampling is “a physical taking rather than an intellectual one,” because it’s copying sounds from the original recording. The court also says creativity isn’t at issue because many artists and record companies seek licenses as a matter of course—and “the record industry…has the ability and know-how to work out guidelines…if they so choose.” Therefore, apparently, sampling without license is entirely off limits. Fair use? Not even mentioned.
The Sixth Circuit Court of Appeals agreed to rehear the case. One interesting amicus brief for that rehearing came from the Brennan Center for Justice at NYU School of Law and the Electronic Frontier Foundation. They note, among other things, that hearings during the 1976 Copyright Revision Act included the express statement that only “substantial” copying from sound recordings would violate copyright. “Courts have long recognized the centrality of quotation from earlier works in the creation of new art, particularly music.” The Ninth Circuit does hold that there’s a minimal level beneath which sampling isn’t infringement: If nothing else, the level at which “the ordinary lay observer [cannot] discern or recognize the sampled material.” Would a typical moviegoer hearing “100 miles” say “hey, that’s copped from the Funkadelics and Get Off Your Ass”? Eliminating any such level appears to be unprecedented.
In June 2005, the Sixth Circuit panel essentially reaffirmed its earlier decision: A “bright line” saying that even two notes can be infringement is a good idea, entirely ignoring issues of balance and fair use.
By the way, RIAA was on the “right side” this time around: It argued against the Court of Appeals’ ruling and for continuing to consider de minimis. Oh, and RIAA’s brief mentions fair use—a concept that the association favors when it serves RIAA interests.
Well, heck, getting a license is just a little bother, right? And maybe a little cost: Apparently a sub-three-second sample can cost $1,500 to $5,000 to license. The song in question wasn’t on the soundtrack CD for the movie.
Ever had a cake custom-frosted? Traditional bakeries can do remarkable things; those with frosting-jet printers (I don’t know what else to call them) can go truly wild, since they can scan a photo or drawing you provide and produce a fairly high-quality rendition. All of it edible.
But here’s the sign at College Bakery, as noted by Clay Shirky in a June 16, 2005 boing boing posting: “College Bakery no longer accepts edible images from any outside sources.” Why? Because the bakery had been told it might be sued for copyright infringement if a recognizable image of, say, Dora the Explorer or Thomas the Tank Engine showed up on a cake. Shirky’s interpretation of College Bakery’s statement: “The risk of being sued is so high that we’ll give up on helping paying customers create their own cakes.”
Shirky thinks it’s stupid. “First of all, disappointing children is a lousy tactic for a media company. If a child loves Nemo so much she wants a clownfish birthday cake, it’s hard to see the upside in preventing her from advertising that affection to her friends.” And, to be sure, it’s a chilling effect.
Consider the infringement, if there is one. We’re not talking distribution here—“the image is designed to be eaten…within hours of its creation.” No unlimited copies. No easy transition to other media. “And what happens? The same grab for total control, and the same weak regard for side-effects on non-commercial creativity.”
One law clerk managed to get very confused about IP law in a long comment attempting to justify this. “Companies don’t run around trying to enforce their copyright because it brings them joy, they do it because they have to.” That’s trademark, not copyright; and even there, one wonders just how heavy-handed you have to be. (Yes, Lsoft has to gripe at people once in a while to retain “Listserv™” as a trademark for its list processing software, because it’s one that’s on the verge of being aspirined—of losing trademark status. Still, I’ll guess that if you said “Congrats on the new listserv” on a celebratory cake, Lsoft lawyers wouldn’t be in your entryway.) The law clerk equated College Bakery’s cake decorations with “stealing from another company,” and seemed to think it reasonable for this little bakery to ”negotiate with each of the companies involved to pay for the right to SELL the images those companies created.”
Jason Schultz commented at length suggesting a balance—that those who love copyrighted and trademarked characters should have some rights, e.g. fair use rights. You shouldn’t be able to do your own commercial Dora the Explorer cartoons or books without a license—but a cake? Even for trademark, it’s a reach: “[N]o one would ever start calling cartoons ‘Doras’ and birthday cakes aren’t even in the same class of goods.” As Schultz suggests, it’s really about total control: “The idea that someone other than the creator might actually make use of the character without permission is what drives copyright maximalist authors, owners, and advocates crazy, not loss of rights or even, often, compensation.”
I haven’t tried to do a photo cake recently. Do you need to fill out a form asserting that you took the photo and it contains no trademarked images?
This one’s tricky and goes back to a device I saw during ALA in Toronto: the Sima GoDVD! or something very much like it. The GoDVD! is or was a $130 box that “enhances” analog video so you can convert it to digital form to burn to DVD—and you could connect it to the analog video output from a DVD player to back up (copy) a commercial DVD (losing menus and special features in the process).
Sima claimed it wasn’t a DMCA violation because it didn’t operate in the digital domain. It also wasn’t a violation of Macrovision’s enforced licenses because it wasn’t a VCR—but the video enhancement had the effect of undoing Macrovision’s videocassette (and apparently DVD) copy protection, which for video relies on signal distortion of a sort. (On our old TV, we could see the effects on most commercial videocassettes: the top inch or so was wavy.) Seth Finkelstein clarified my original comment: DMCA includes a special clause to protect Macrovision copy protection (“automatic gain control copy control technology”) by outlawing any consumer recording device that ignores the protection. But, Sima said, it’s not selling VCRs; it’s just selling video enhancement.
Sure enough, come June 2005, Macrovision sued Sima and another corporation, with the claim that Sima’s Video Enhancers “are principally used to allow consumers to make unauthorized copies of copyrighted DVDs” and that they infringe Macrovision’s technology and violate DMCA. As Finkelstein notes, even if Sima and the other corporation have a reasonable legal defense, “funding that legal defense may bankrupt them.”
In April 2006, a U.S. district court granted Macrovision’s request for an injunction preventing Sima from selling its products. The Consumer Electronics Association issued a statement, with its CEO Gary Shapiro saying:
Consumers should be outraged by today's decision. The devices Sima Products manufactures simply allow consumers to use digital techniques to make up for viewing artifacts in analog material—some from age or distortion, and some caused as a result of the use of distortive copy protection techniques. Such products have been necessary and available, in the analog and digital domains, for years. The legislative history of the 1998 Digital Millennium Copyright Act (DMCA) is clear that passive analog measures that distort video signals are not “technical protection measures.” Indeed, the “No Mandate” clause of the DMCA (Section 1201(c)(3)) makes this clear. To consider them as such, and for courts to extend the reach of a problematical law is another extreme example of the growing imbalance between consumer rights and intellectual property rights.
The DMCA should not trump consumer rights. When a court sends a message to consumers that they can no longer transfer their home movie archives between software platforms, and cannot correct artifacts caused by passive copy protection techniques, it's clear the scales are tipping too far in the content industry's favor. It's time to stop government intrusion into private, non-commercial home entertainment practices.
That’s the title on an October 8, 2005 story in the International Herald Tribune, by Joost Smiers and Marieke van Schijndel. Even understanding that these are Europeans speaking to a different copyright regime, the story starts out badly and serves primarily as an odd example of the other extreme: The concept that we’d be better off if there was no copyright.
“Copyright was once a means to guarantee artists a decent income.” That’s the lead sentence and it’s complete nonsense. Patrons were once ways to guarantee artists a decent income, and patronage is about the only way to provide such a guarantee. The most extreme form of copyright won’t “guarantee” a dime to an artist, much less a decent income. It never has and—at least in the U.S.—it was never intended to. The authors say that it now serves an “altogether different purpose”: “It now is the tool that conglomerates in the music, publishing, imaging and movie industries use to control their markets.” Not as false as the first statement—but copyright isn’t the tool (DRM, combinations in restraint of trade, inherent small monopolies in creative works and trademarks are also important tools), and copyright does serve creators themselves in addition to protecting Big Media.
The authors claim extended copyright results in “The privatization of an ever-increasing share of our cultural expressions” and that “Our democratic right to freedom of cultural and artistic exchange is slowly but surely being taken away from us.” I don’t get it. Copyright doesn’t “privatize” anything that was already in the public domain (except in a few bizarre cases), and copyright by itself does not restrict “cultural and artistic exchange” except to the extent that creators or their agents insist on such restriction. When you buy a book, you’re as able to give it away or trade it for another book as you ever were—and if there are problems doing so with an ebook, those problems come from DRM, not copyright as such.
The authors assert that every artistic work “derives the better part of its substance from the work of others, from the public domain.” That’s a tough assertion to prove—and I doubt the claim that “in no other culture around the globe, except for the contemporary Western one, can a person call himself the owner of a melody, an image, a word.” Really? No other cultures allow a painter to claim ownership of their painting?
What do the writers propose? Eliminating the “luxurious protection offered by copyrights”—entirely. They claim that this will strike “a fatal blow to a few cultural monopolists who…use their stars, blockbusters and bestsellers to monopolize the market and siphon off attention from every other artistic work…” This sudden inability to create blockbusters comes about because “we can freely exploit all existing artistic expressions and adapt them according to our own insights.” Huh?
Somehow, this means “many artists” would “no longer be driven from the public eye and many of them would, for the first time, be able to make a living off their work.” How? Not stated, except that they wouldn’t have to “challenge—and bow down to—the market dominance of cultural giants.” I sense that the authors believe there would be no best-selling books or blockbuster sound recordings were it not for Big Media monopolies—that the so-called “long tail” would take over entirely, yielding adequate sales for everyone. This makes no sense to me.
Even these anti-copyright folk accept that “certain artistic expression…demands sizeable initial investments.” They propose that “the risk bearer… receive for works of this kind a one-year usufruct, or right to profit from the works.” Their examples of such high-investment works? Movies and novels. So movies get one year to earn back their costs and make a profit (although many small movies and independent movies only earn back their costs when released on DVD, and TV series may require years of reruns to earn a profit). Novels? Since when do novels demand “sizeable initial investments”—particularly as compared to, say, sound recordings or TV shows?
Ah, but that’s not enough. What do you do “when a certain artistic creation is not likely to flourish in a competitive market”? You know, like when the “artist” is producing worthless crap but still claims to be an artist? There’s always a solution: “It would be necessary to install a generous range of subsidies and other stimulating measures, because as a community we should be willing to carry the burden of offering all kinds of artistic expressions a fair chance.”
There it is. Without copyright, we would have “more, and more diverse” forms of entertainment. “A world without copyright would offer the guarantee of a good income to many artists, and would protect the public domain of knowledge and creativity.”
Interesting. No copyright, but guarantees of “a good income” for artists. I presume that we’d have boards to determine who’s an artist and who’s a hack? Or would you simply fill out your Assertion of Artistry, attach a copy of the novel, or sound recording, or sculpture, and collect your subsidy?
Not all extremists are on the Big Media side.
Here’s one that gets tricky: A post by Jason Griffey at Pattern recognition on October 19, 2005, “MP3’s, audiobooks, and libraries.” He got an email from an acquaintance asking his thoughts on ripping audio CDs that are borrowed from the library. (Griffey says “audiobooks,” but the CD in question was a music CD.) The friend checked out a CD “and ripped it to listen to [on] my iPod. I then, honestly, felt guilty…”
The friend pointed to a boing boing post where a reader asked Neil Gaiman how he felt about copying library audiobooks to an MP3 player. Gaiman doesn’t believe the person’s broken a law, and says “you’d be expected” to copy an MP3 CD borrowed from the library “onto your iPod, after all.” But here’s where it gets interesting, and where balance becomes difficult:
There’s a weird sort of ethical fogginess, in that I suspect that part of the idea of libraries is that when you’re done with something you return it, and of course once you have your MP3 on your computer and iPod you can keep it forever. But I think this is just one of those places where changes in technology move faster than the rules…
Probably wisest not to pull it off your iPod and give it to other people, though. Let them at least take it out of the library themselves.
Griffey’s take is that copyright is out of control—and that copying library audiobooks “counts as fair use. It’s format shifting.”
Well, yes…and no. It’s format shifting while you have the CD checked out from the library. I have no ethical problem with that—listening to the audiobook or Jimmy Buffet music on your preferred device. But, as Gaiman says indirectly, library circulation is consecutive multiple use, allowed under the First Sale doctrine: That purchased copy can be used by any number of people, one at a time.
When you return the CD and keep the ripped copy, you’re infringing copyright. It’s not piracy by my standards; it’s informal sharing, which should be regarded as a far less serious offense. But it’s also ethically wrong by my standards. If you wish to retain permanent use of a copyright object, you should buy it.
Daniel J. Solove posted a thought-provoking piece at Concurring opinions (www.concurringopinions.com) on December 15, 2005: “What if copyright law were strongly enforced in the blogosphere?” What if mainstream media initiated vigorous copyright enforcement against bloggers?
“The blogosphere would be in for some tough times I bet. Bloggers frequently copy large chunks of mainstream media articles and some of us copy pictures we find on the Web.” Solove says bloggers quote liberally “because the mainstream media is notorious for creating dead URLs”—but I find that ingenuous. Bloggers (some, certainly not all, and generally not libloggers) copy significant portions of articles because it’s easy and they don’t expect to run into trouble. Dead URLs make a great excuse. If you provide a proper citation and cite the arguments in the original, a dead URL shouldn’t be a big deal.
“We bloggers have, to put it mildly, a very robust concept of fair use.” That’s closer to the truth. “[T]he blogosphere has developed a set of copyright norms in an area where there is very little enforcement. These norms about the use of copyrighted material are probably at odds with existing copyright law.” Probably? If you quote the entirety of an article, or even half of it, in a blog that runs ads—or, worse yet, if you copy a photo because it makes your blog more visually enticing—you’d have a tough time making a fair use defense. Solove noted a Wall Street Journal article that some stock photo houses are cracking down on unauthorized use of photos from those houses (e.g., Corbis and Getty Images).
Solove thinks “the development of looser copyright norms in the blogosphere is a wonderful thing”—not because it’s vital to expression or freedom of speech or opinion, but because “blogging is already quite time-consuming” and “copyright holders might charge fees for the use of their materials.” Having to pay attention to copyright “can make posts less complete, less interesting, less snazzy. Having to paraphrase rather than quote directly will take more time, and perhaps make bloggers more reluctant to dash off a post on a particular issue.”
I hate to say it, but “I want my site to be snazzy” and “I’m too lazy to actually write as opposed to quoting” are not particularly good fair use defenses. Nor are they ethical reasons to appropriate other people’s work. In the final paragraph wondering whether a crackdown’s likely, Solove finishes: “With blogging getting bigger and more profitable every day, will copyright suits become the wave of the future?”
Sorry, but if you’re getting “more profitable” by grabbing pictures to make your site snazzy and importing articles wholesale, rather than quoting the excerpts needed to make your commentary meaningful, I’m not particularly sympathetic. You know, a People-type magazine would be significantly more profitable if it simply grabbed other people’s pictures and stories without payment or license fees.
What’s particularly interesting is that Solove’s post spends almost no time—maybe one sentence out of a long post—discussing legitimate reasons for extended quotations: That is, because they’re needed for the purposes of commentary. Instead, it seems to be about laziness, snazziness and profitability: Too lazy too write or paraphrase, out to make a buck, and wanting neat celebrity pictures. None of which are legitimate reasons for wholesale copying. As one extended comment notes, there haven’t been many copyright lawsuits against bloggers, and litigation is expensive on both sides. One blogger believes media that pursued such suits “would be in for a major fight” because “really smart litigators and law professors would chip in to help out”—which I’ll suggest is probably not true if the suits are for flagrant infringement with no legitimate education or commentary purpose…like those decorative pictures of the celebrity of the week. One professional photographer states a simple fact I have trouble disagreeing with: If that photographer’s work is adding value to your blog, the photographer may (and probably does) deserve compensation.
Putting this in the context of libloggers, I don’t believe there’s much of a problem. While one high-profile blog within the library field used to quote substantial portions of articles, that’s no longer the case. I don’t know of any library-related blogs that habitually quote large portions of copyright articles except as interleaved with extensive commentary, or that import copyright pictures for decorative purposes. Libloggers understand linking, and it’s my impression that libloggers understand the ethics of fair use, which can be even fuzzier than the always-fuzzy law of fair use.
The Digital Cinema System Specification, the basis for digital projectors in movie theaters, will allow studios to trace bootlegged movies (DVDs, downloads) back to the specific theater the movie was shown in, maybe the time it was shown. That assumes the specification works; it requires that the 35-bit “forensic marker” be “visually transparent to the critical viewer” and “inaudible in critical listening.” If it works, it’s a good thing: Pirated DVDs and downloads sold for commercial gain, typically camcorded in a theater or diverted somewhere along the distribution line, absolutely hurt artists and studios and have no defense.
Ø What can you say about the family of Joan Miro and the Artists Rights Society, who “asked” Google to remove the Miro-esque Google logo that appeared on Miro’s birthday? Google did not reproduce Miro’s art. Google’s artist did some letter-filling sketches in the style of Miro. Google took down the special logo. It all seems a shame: A shame that protection against “derivative” works could be so extreme as to rule out casual tributes, and a shame that the family wouldn’t recognize the honor Google was paying. So extreme copyright makes fools of us all. (Shakespeare’s been dead more than 70 years. I’m safe.)
Ø One bad proposed new law, H.R. 4861, not only authorizes the broadcast flag, it extends it to digital radios as a mandatory feature. If the law passes, you’d need an FCC license to build a radio receiver and be forced to incorporate DRM if the receiver has recording function. The bill prohibits unauthorized copying and redistribution, not unlawful or infringing redistribution: Fair use goes out the digital window, as does the Audio Home Recording Act. Basically, the RIAA would determine what you could and couldn’t do with digital broadcasts—and it doesn’t think you should be able to do very much. (See EFF’s Deep links, March 2, 2006).
Ø Another one, in draft form and pushed by the Department of Justice, would broaden criminal copyright infringement by eliminating the necessity of proving actual infringement and increasing the penalties; even attempted infringement would be a criminal offense, as would “conspiracy” where no infringement took place. (Deep links, April 25, 2006)
Ø The PERFORM Act would require webcasters to use streaming formats with DRM: The statutory license available for music webcasting would require that the webcaster “uses reasonably available technology to prevent copying” of the transmission, except for “reasonable recording”—and, as in H.R. 4861, “reasonable” would basically assure that you can’t record or identify recordings based on artists, genres, or song titles, and that you can’t separate a stream into individual songs.
Ø Now RIAA’s suing XM satellite radio—because XM is making it easier to record broadcasts and turn them into playlists. Doesn’t the Audio Home Recording Act assure that you can legally record broadcasts for later home use? Oddly, the complaint never mentions AHRA: after RIAA assured us that AHRA would “allow consumer electronics manufacturers to introduce new audio technology into the marketplace without fear of infringement lawsuits,” RIAA wants to ignore the law it pushed for. The complaint’s a gem. It says that the highly-compressed MP3s from XM are “perfect digital copies” of the original sound recordings (emphasis in the original). It claims that adding track identification and a buffer to broadcast reception suddenly changes it from broadcast (“performance”) to distribution, thus violating the XM license. Sirius has introduced similar features—but it’s paying off the record labels. This one has everything: Ignoring fair use, asserting that failing to build in sufficiently draconian restrictions constitutes inducement to infringe, and ignoring the law RIAA asked for (and has received millions in payments from).
Ø The U.S. 2d District Court of Appeals upheld a decision favoring fair use in Bill Graham Archives v. Dorling Kindersley. DK published a 480-page coffee table book, Grateful Dead: The Illustrated Trip; it’s DK, so of course it used loads of illustrations as meaningful parts of its content. In this case, there’s a timeline running continuously throughout the book combining more than 2,000 images representing dates in the Dead’s history, with text. Seven of those 2,000 images are small versions of concert posters (or in one case the front and back of a concert ticket). Can you imagine a book about the Grateful Dead that doesn’t include some of those posters? The largest reproduction of a poster is 3x4.5"; the originals were 13x19" to 19x27". No reproduction is more than one-twentieth the size of the original, takes up more than one-eighth of a page, or “is given more prominence than any other image on the page.” (All quotes from the court’s decision.) So, naturally, Bill Graham Archives sued to enjoin further publication, to destroy unsold books, and for actual and statutory damages. The lower court decided tat DK’s reproductions were fair use and granted summary judgment. The appeals court goes into each fair use factor in some detail (with emphasis on the first factor, purpose and character of the use), and in almost every case finds that the balance favors DK.
As with Part 1, no firm conclusions appear reasonable at this point. Copyright becomes unbalanced in many ways. There are forces at work to create even greater imbalance—and there are people who deal with imbalance in what may also be inappropriate ways.
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