Wednesday, December 07, 2005

Fair use in the digital era

I spotted an interesting piece in the Benton Foundation Comm Policy news service this week, concerning issues of copyright and intellectual property rights. It relates to a recent report by the Brennan Center for Justice ("Will Fair Use Survive?", authored by Marjorie Heins and Tricia Beckles and available in downloadable PDF format.).

The report was "the product of more than a year of research - including many firsthand stories from artists, scholars, bloggers, and others," and "paints a striking picture of an intellectual property system that is perilously out of balance." The core of the report is a call for the legal doctrine of fair use to be reaffirmed and strengthened in the digital age "so that it can be an effective tool for anyone who contributes to culture and democratic discourse."

Fair use is a long-standing concept in American law that allows people to use copyrighted material, in certain limited circumstances, without the permission of the copyright holder. As the Stanford University Libraries website notes, "Most fair use analysis falls into two categories: commentary and criticism; or parody." Traditionally, there has been a fair amount of flexibility granted under the umbrella of fair use. But, the Brennan report holds, this flexibility is fast disappearing. The Benton service notes the report's following key findings:
  • 1) Artists, writers, historians, and filmmakers are burdened by a "clearance culture" that ignores fair use and forces them to seek permission (which may be denied) and pay high license fees in order to use even small amounts of copyrighted or trademarked material.
  • 2) The 1998 Digital Millennium Copyright Act (the DMCA) is being used by copyright owners to pressure Internet service providers to take down material from their servers on the mere assertion that it is infringing, with no legal judgment and no consideration of fair use.
  • 3) An analysis of 320 letters on the Chilling Effects website, an online repository of threatening cease and desist and "take down" letters, showed that nearly 50% of the letters had the potential to stifle protected speech.

In response to these challenges to fair use,
    The report recommends: A) creating a clearinghouse for information, including sample replies to cease and desist and "take down" letters; B) outreach to Internet service providers who are instructed by companies to take down sites with material they claim as copyright-protected; C) changes in the law to reduce the penalty for guessing wrong about fair use; and D) the creation of a national pro bono legal support network.

Certainly something needs to be done to protect fair use. Otherwise, it will become very difficlut or even impossible for people to use any digital matrial for any purpose without having to ask permission and/or pay someone for the privilege. And that would be deleterious to robust democratic debate. Remember, copyright law is supposed to find a balance between, on the one hand, enabling creators of original material to make a reasonable profit from their works for a fixed period of time, and on the other, enabling creative works to enter the public realm in order to spark new creative and democratic output.

The balance is shifting very much against the public realm. Another major strike in favor of the copyright holders came last June, when the Supreme Court, in MGM v. Grokster, ruled that Internet file-sharing services, such as Grokster (a service run by StreamCast Networks Inc) and Morpheus can "be held responsible if they intend for their customers to use software primarily to swap songs and movies illegally." In a surprise move, the justices also unanimously rejected "warnings that the lawsuits will stunt growth of cool tech gadgets such as the next iPod." The BBC characterized the ruling as making clear that the "file-sharing companies are to blame for what users do with their software." It seems clear from the ruling that the Court believed Grokster could be facilitating illegal activity, i.e., copyright infringement.

The case had been "brought by 28 movie and music makers who claimed that rampant piracy was denting profits." Even though the Supreme Court justices had been expected to rule in favor of the file-sharers - because of legal precedents such as a 1984 case involving Sony's Betamax VCR (Sony Corp v. Universal City Studios), they didn't do that. Instead the Court has set aside the precedent (and lower court decisions) because they determined that "the makers of a technology have to answer for what people do with it if they use it to break the law." Notes the BBC:
    In the ruling Justice David Souter wrote: "The question is under what circumstances the distributor of a product capable of both lawful and unlawful use is liable for acts of copyright infringement by third parties using the product."

    He added: "We hold that one who distributes a device with the object of promoting its use to infringe copyright ... is liable for the resulting acts of infringement by third parties."

The BBC also noted at the time that the decision could "have an impact on any technology firm developing gadgets or devices that let people enjoy media on the move. If strictly interpreted the ruling means that these hi-tech firms will have to try to predict the ways people can use these devices to pirate copyrighted media and install controls to stop this infringement." And indeed, this does seem to have happened. According to Wikipedia, Grokster - which "was forced to pay $50 million to the music and recording industries" - announced in November that it would cease its P2P (peer-to-peer) file-sharing service. Furthermore:
    Fearing lawsuits similar to MGM v. Grokster, Mark Gorton, the chief executive officer of the firm that produces LimeWire, has said that he plans to stop distributing his file sharing program. He explained this by saying
      "Some people are saying that as long as I don't actively induce infringement, I'm O.K. I don't think it will work out that way...[the Court] has handed a tool to judges that they can declare inducement whenever they want to."

    In order to download the free LimeWire client, users must now first agree to the statement "I will not use LimeWire BASIC for copyright infringement.


Anonymous Anonymous said...

When I first read this article I was very surprised that such a restriction of copyrights was underway. All of my term papers cite using the legal shield of the fair use clause. After my first reading I thought three things. (1) What exactly would happen if there was a complete restriction of rights? (2) I had an unpleasant critique of the suggested responses. (3) A potential copyright infringement interfering with the advancement in technology? What’s wrong with this picture?

Complete and total material rights would defeat the purpose of even publishing it in the first place. If you make it illegal to use any publication without asking permission, then why even publish it instead of simply do it and wait for users to come to you. It would also make students lives much more complicated if they needed to ask every source to be able to refer to them. Term papers would have a whole new level of complexity, and teachers would have much more work to do in both preventing and checking for a copyright infringement.

In response to the report: “A” doesn’t really fix the problem it just makes it easier for the people to access a common opposition to the new law. “B” is an aid to the resistance in a way. All it does in effect is provide an opportunity for the ISP’s to cooperate and unify their interests. “C” also doesn’t help, if fact I think that it would make things worse. I think that if the penalty were decreased, more cease and desist orders would go out, not less. “D” is entirely unreasonable. Most lawyers are encouraged to do at least fifty hours of pro bono service per year, but there is no reasonable way that a network of lawyers, all putting in their fifty hours to this cause, would be able to meet all of the needs of people under attack by this copyright restriction.

On top of it being a monstrous task, it is virtually imposable for the makers of new devices to think of and disable any misuse of the device. To ask that of technology creators is a complete and unnecessary impediment on their ability to create new technologies. It would add a whole new level to the amount of thought and foresight necessary to create something new. It would necessitate that every think tank add a new department to try and misuse the new device and if successful, either find a way to shut it down, or scrap the device. I think that if this happened the new law would be opposed to the best interests of humanity as a whole. Had this been written into the law books from America’s conception the economy would have never grown as it did, especially in the media section. And things like the internet or satellite distribution would not have been allowed into production or application. This minor change in the copyright laws, if permitted, threatens everything that has allowed for America to become the cultural superpower it is today.

~Christian Foster

12/07/2005 12:35 PM  
Anonymous Anonymous said...

Okay, I lied---this is my last blog response---starting now! As an avid reader of Sci-Fi for more years (and books) that I do care to remember, my mind has been allowed to be formed in strange and wonderful ways. After almost 34 years of absorbing the extrapolational and prophetic writings of these authors, my brain sometimes involuntarily leaps to scenarios of future impact of human action in the now. After reading this piece by Dougie it happened again.
You know what this means don’t you? Yes, by purchasing (or renting) books, newspapers, magazines, CDs, movies, newscasts (you purchase through cable/satellite fees), concert tickets, ad infinitum, you are allowed the right to enjoy these products.ONCE! However, once you have finished absorbing said product you better watch out. You can’t even sing a song verse, quote an author or talk about something seen or read without citing, paraphrasing or paying for the information used by its author. Dut, dut, dut---no you can’t! You paid for it once, but that doesn’t allow the use of it over and over again without paying up again and again and again. So watch your Ps & Qs in the future, or the copyright police will throw your ass and all connected to it in jail. (side note---do you all know that Ps & Qs is an Irsh/English colloquialism that literally means-“watch your pints and quarts”—a pub phrase that meant—you’re responsible for the safety of your own libation from others, or that last call was coming)


12/10/2005 6:48 AM  
Anonymous Anonymous said...

I'm tired of artists and film companies that complain that file-sharing hurts their bottom line. If the prices of CDs and tickets to movies weren't so exorbitant that would be one thing. But I can't justify spending $10 to watch a movie once or $15 on a CD with only one or two good songs on it. If anything, file-sharing has helped me discover new artists that I otherwise would not have known about.

-Mike Tatelbaum

12/11/2005 10:35 PM  
Anonymous Anonymous said...

I think the arguement over the whole filesharing thing is simple....You can try to stop it, but you will fail. For every way in which people, or companies have tried to stop it, there have been 2 new ways to get it. First there was napster....I remember it like i was yesterday. I would sign online before the bus picked me up for school, pick maybe.....10 songs to download...By the time I got home, If I was lucky, THEY WERE DONE, and ready to burn on my super fast 4x cd writer! Then they shut napster was such a sad day. UNTIL.....Kazaa and IMESH came out. Once again it started back up. Then the RIAA started putting fake songs, and trackers in the downloads. They had ways to find out if you were sharing songs and could then sure you. A friend of mine got sue for thousands of dollars for sharing about 1000 songs. BUT ONCE AGAIN TECHNOLOGY COMES TO THE RESCUE! First came files that you can download that would block the RIAA fake songs, and then we learned to not share our files, and if we did, there were even programs to save your identity! Fast foward more and now we have bit-torrent which is almost untrackable, and we have faster connections, and limewire and dozens of other programs! I don't see it slowing down anytime soon. I am sure if there were laws put out that it might slow it down a bit, but then people will come up with new ways.....ect....ect...ect...

-Bradley Shepps

12/11/2005 10:52 PM  
Anonymous Anonymous said...

I think these laws are ridiculous, first of all i totally disagree with movie and music makers complaining about dents in their profits because they still continue to make millions more than the average american who is "making these dents", but that is another subject. The courts did " a tool to judges" like Mark Gorton said to destroy these file sharing companies that benefit people on the internet and benefit new techonologies like the ipod. I totally disagree with the ruling here and I dont see how it is the problem of the file sharing company for what their users do. People have tried many times to blame gun companies for what people do with their products and that never works. So how can a file sharing company be blamed for what their users do with their product


12/11/2005 11:43 PM  

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