Against Monopoly

defending the right to innovate

Fair Use

Monopoly corrupts. Absolute monopoly corrupts absolutely.

Copyright Notice: We don't think much of copyright, so you can do what you want with the content on this blog. Of course we are hungry for publicity, so we would be pleased if you avoided plagiarism and gave us credit for what we have written. We encourage you not to impose copyright restrictions on your "derivative" works, but we won't try to stop you. For the legally or statist minded, you can consider yourself subject to a Creative Commons Attribution License.

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Google to pay for scanning copyrighted books--as will you

In an op-ed, James Gibson castigates Google's deal with authors and publishers to pay for its right to scan their copyrighted books link here. Although Google had initially argued that scanning was fair use, it has now caved in to the copyright holders, apparently preferring to pay rather than litigate. Gibson argues that the deal gives Google a monopoly on scanning because no other companies will be in a position to scan library collections. He hopes the court will not agree to this anti-competitive deal.

Subsequently, Harvard's library which has a deal with Google to scan its books, is pulling out on books still under copyright, arguing that it went with Google initially because it expanded access to its collection link here.

It is depressing how copyright's power keeps getting extended and the monopoly, expanded.

And what has happened to "do no wrong"?

Copyright Alliance Begs Supreme Court To Make Remote DVRs Illegal

Copyright Alliance Begs Supreme Court To Make Remote DVRs Illegal-- great post by Mike Masnick at TechDirt. He notes there that

"back in August there was an extremely important Appeals Court ruling that noted that Cablevision's remote DVR setup did not infringe on copyrights. The ruling pointed out the rather obvious troubles that would occur if we interpreted copyright laws the way copyright holders wanted to. It's clear that DVRs, like TiVo, are perfectly legal in the home. Time shifting shows has been found, quite clearly, to be legal. Cablevision's remote DVR is effectively the same exact thing. The only difference is that the DVR is stored at Cablevision data center, rather than at someone's home. The ruling, quite clearly, demonstrated how twisted copyright law has become, as it is patched up each time some new technology comes along.

"The importance of this ruling cannot be understated, however, as it will enable many important online services that will be tremendously useful. Needless to say, copyright maximalists in the entertainment industry don't like that."

... The district court found Cablevision analogous to a copy shop that makes course packs for college professors. In the leading case involving such a shop, for example, "[t]he professor [gave] the copyshop the materials of which the coursepack [was] to be made up, and the copyshop [did] the rest." ... There did not appear to be any serious dispute in that case that the shop itself was directly liable for reproducing copyrighted works. The district court here found that Cablevision, like this copy shop, would be "doing" the copying, albeit "at the customer's behest."

"But because volitional conduct is an important element of direct liability, the district court's analogy is flawed. In determining who actually "makes" a copy, a significant difference exists between making a request to a human employee, who then volitionally operates the copying system to make the copy, and issuing a command directly to a system, which automatically obeys commands and engages in no volitional conduct.

Now analysis of causation is important--I've written on this before in my article Causation and Aggression. In this piece, my co-author Pat Tinsley and I note the importance of the Austrian concept of "praxeology"--the science of human action--to provide a framework to properly classify actions, to determine whether an action is aggression (and what type and degree), who is responsible for actions, etc. For example, this view of action helps to clear up the confusion among libertarians about whether, and why, Presidents and mob bosses are indeed responsible for the actions of their underlings.

Now, in my blogposts Causation, Spam, and Worms, Spam, Spyware, Spiders and Trespass, Spas as a Nuuisance, and Spammers face "mail fraud" charges and 20 years in the federal pen!, I apply this basic understanding of causation to argue that "spam and related activities can in principle be a crime--a type of trespass--since it is a means by which the spammer uninvitedly uses another's property". This reasoning is similar to that employed by the court in the DVR case, since they are saying the customer is the one actually "controlling" (via electronic signals etc.) the equipment of Cablevision (albeit with Cablevision's consent, unlike in the spam case).

That said, the decision in the DVR case reveals how irrational copyright law is. You could analogize Cablevision to the photocopy shop; or to the use of one's own personal DVR/VCR.

The problem is that over time technology will stretch these analogies to the breaking point. The court, for example, emphasizes that the customer can instruct the RS-DVR system to record a TV show, and if he does, then the transitory data in the buffer is "move[d] from the primary buffer into a secondary buffer, and then onto a portion of one of the hard disks allocated to that customer." Thus, if no customer requests a given show be recorded, the information in the "primary ingest buffer" is lost--it is overwritten every 01 seconds (per channel). For this reason, "A customer cannot, however, record the earlier portion of a program once it has begun."

Thus, the system is set up so that it mimics the operation of a DVR. Presumably if 25,000 customers all want to record "Lost," then 25,000 separate copies of Lost are made on Cablevision's "Arroyo" server--one for each customer. And presumably there is a limit on the number of channels one can record simultaneously, and the total amount of hours of recorded material that can be maintained--similar to the way a personal DVR works--one's own DVR has only 20 or so hours of space, and can only record two channels at a time. But in theory a DVR could have 100 tuners, and terabytes of space. So in theory, Cablevision could adjust the RS-DVR system to permit users to simply give a blanket instruction on day 1: "Please record all channels [or the following 50 channels] at all times, and maintain them for a trailing 1 year period." Thus, the buffers for the various channels are always recording for each user basically everything that is transmitted. It's like an always-on DVR, with all (or dozens of) channels. And why does Cablevision need to waste space by making 50,000 copies of Lost? Why not just keep one copy around, so long as at least one user still "has" "a copy" of it in "his" RS-DVR "space," and serve up from that one copy? What's the difference, really? The difference is that at this point the RS-DVR would not look as much like a DVR, and the courts would have a harder time analogizing to one (unless, in the future, DVRs in the home get petabytes of capacity and dozens of tuners, which is technically feasible). So in the meantime, expect Cablevision to employ artificial limits and inefficiently use its equipment just to get around the arbitrary contours of copyright law.

McCain wants party right to copy as fair use

Saul Hansell, writing on the NYTimes Bits website and in today's paper, discusses the McCain campaign's "right to remix on YouTube" as fair use, observing that McCain introduced a new position on copyright law" link here. His commercial ads had used snippets of TV news broadcasts, the news organizations complained under the Digital Millennium Copyright Act, YouTube took the ads down, and the campaign complained, asserting that the mashups were fair use.

The incident has led the campaign to assert that the election is upon us and it can't wait for the issue to be adjudicated, so it should receive priority treatment. YouTube doesn't want to be forced to make the judgment on fair use. The Electronic Freedom Foundation opposes special treatment for political groups and wants uniform and extended fair use for all.

Hansell observes that given the unlikelihood of McCain's winning the election, he may never have the chance to lead the move to change the DMCA.

But this experience once again illustrates the fundamental absurdity of this law and more broadly, of copyright.

McCain to YouTube: ever heard of fair use?

Lessig's blog has posted an interesting letter from the McCain campaign to Youtube about their take-downs of videos that "are clearly privileged under the fair use doctrine".

A Small Victory For Fair Use

Details from the S.F. Chronicle -

In a victory for small-time music copiers over the entertainment industry, a federal judge ruled today that copyright-holders can't order one of their songs removed from the Web without first checking to see if the excerpt was so small and innocuous that it was legal.

The ruling by U.S. District Judge Jeremy Fogel of San Jose was the first in the nation to require the owner of the rights to a creative work to consider whether an on-line copy was a "fair use" - a small or insignificant replication that couldn't have affected the market for the original - before ordering the Web host to take it down.

The decision isn't as far reaching as it ideally needs to be, but its a small positive step.

Read the whole thing here to learn more.

NY Times hypocrisy on copyright infringement?

Patterico seems to think so with regards to their reprinting of a blog post authored by your humble servant (without my permission).

And Patterico is right - I don't care. It certainly isn't going to cause me to lose my incentive to continue writing about topics that interest me.

Dispatches From The AP's War Against Freedom Of The Press

In response to some of the AP apologists, Jeff Jarvis at Buzz Machine hammers the point home quite well:

What the AP and The New York Times' Hansell don't seem to realize is how hostile an act it is to send lawyer letters to individuals. They have armies of attorneys. We bloggers don't. The mere act of sending us a letter can cost us money out of our own pockets. Sending a lawyer letter is an assault.

Saul tweaks me about having a conversation first: "Mr. Jarvis, in particular, often talks about blogging as a conversation. It seems like the A.P. wants to talk, and many bloggers would prefer a temper tantrum to a discussion." Saul, I don't think you're cut out for a career as a playground monitor, for you don't have the most basic skill of the job: recognizing who started it. The AP sent its lawyer letters. It declared war.

And so, Saul, I'd say you should pose this to the AP: Why didn't it start a conversation an open conversation before starting war?

Patterico also defends the flanks.

The AP No Longer Deserves The Press Freedoms Afforded To It

Here is a quote from an AP article suggesting that sites such as this one shouldn't be quoting from AP articles:

NEW YORK (AP) -- The Associated Press, following criticism from bloggers over an AP assertion of copyright, plans to meet this week with a bloggers' group to help form guidelines under which AP news stories could be quoted online.

Jim Kennedy, the AP's director of strategic planning, said Monday that he planned to meet Thursday with Robert Cox, president of the Media Bloggers Association, as part of an effort to create standards for online use of AP stories by bloggers that would protect AP content without discouraging bloggers from legitimately quoting from it.

People are right to be upset in this instance.

There are already 'guidelines' for quoting news stories online (and elsewhere) - the guidelines are called FAIR USE LAW (starting with section 107 of the Copyright Act). Many would justifiably argue that even the current fair use guidelines are too limiting with today's technology. But AP's efforts here are a clear attempt to roll back such rights and privileges even further - and should be forcefully rebuffed without compromise.

UPDATE: AP irony alert as the organization 'steals' content from a blog - using its content more extensively than many blogs use AP materials from single articles. Check out the details here.

Internet Archive vs. the FBI (and free books!)

There was a fascinating discussion on TWIT 144 with Brewster Kahle of the Internet Archive and the Wayback Machine. Kahle is great--he put up a heroic fight against the FBI after it served the Internet Archive in 2007 with a "national security letter" seeking the identity and behavior of an Internet Archive user. The letter circumvented the FISA court and put Kahle and his attorneys under a gag order under penalty of incarceration. Kahle's discussion of his Kafka-esque battle--except that he won--is inspiring and fascinating. Apparently the FBI served 200,000 such letters in four years. The Internet Archive and Kahle was limited in how it could respond to the suit, so it ended up just suing the goverment (Internet Archive v. Mukasey) with help of the heroic ACLU and the Electronic Frontier Foundation. In response to a victim who was not willing to just roll over, the FBI instantly wanted to settle, but the Internet Archive would not agree to this until the settlement permitted all this to be public, so that other victims of such "national security letters" might have an idea of how to fight back.

In any event, I was aware of the Internet Archive's Wayback Machine but hadn't realized that Archive.org is trying to be a sort of open library storing books, films, etc., nor that Microsoft had teamed up with Archive.org (see this Dvorak column). Microsoft helped start the project but has backed out; but at least it removed contractual restrictions on the books it had scanned. You can find hundreds of thousands of free books now on the Internet Archive; take, for example, this gorgeous scan of a classic 18th century nursery book Goody Two Shoes.

(Cross-posted at Mises.org)

Fair Use Of John Lennon Song Upheld In Documentray Film

Per Wired -

A federal judge on Monday freed the producers of a movie promoting intelligent design to continue using a 15-second recording of John Lennon's "Imagine."

A New York judge said the makers of Expelled had a right of fair use under copyright law to use a small portion of the work without Yoko Ono's permission.

I'm not going to get into the controversy surrounding the subject of this film. But in terms of the fair use/copyright issue, this is great news indeed.

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