The EFF brings up potential new copyright modifications to tighten down on fair use. It's important to remember that in 1998, the US Congress extended copyright protection retroactively for 20 years, putting off new additions to the public domain until 2019. So all of us who care about copyright ought to be ready for a new copyright extension act coming in 2017 or 2018, to extend things even further. That will be the optimal time for the industry to push for another DMCA-style law that will complicate our lives even further and push more power into the hands of media conglomerates and out of our control. Be prepared.
AKA "The Mickey Mouse Curve" - easily searchable for a visual reference point. I completely agree "Be prepared" is important not only for the arts, but for technology. The fact that people can be subjected to breathalyzer evidence but that code can not be revealed due to "copyright and trade secret protections" is a foul twisting of US law. Is it on the level with SOPA and Net Neutrality? Not quite, but we all should definitely be aware of the implications and...to be frank...monied stakeholders who want to buy laws they like...
Those extensions are known as the "Mickey Mouse protection act," since more or less their sole purpose is to ensure that Mickey never enters the public domain.
...inasmuch as Mickey is a proxy for Disney's (some others, but mostly Disney's) mindshare which copyright protections are about to expire. I really wish the original copyright law stipulated that for a given work, controlling law is what's on the books at the time it was printed.
Changes to copyright law are probably more likely to pass Congress as part of international trade agreements these days, rather than as stand-alone bills.
...and guided through the Federal landscape by none other than former Senator Chris Dodd. If the MPAA can actually prosecute wholesale piracy in China/India/etc, I'll have to look outside and see if a flying pig might smack into my living room window. From my experience, they prefer to sue grandmothers, families and college students in the US, because fish in a barrel.
Former Academic System's Librarian here. "Fair Use" when I was a librarian meant absolutely nothing. Librarians were the biggest defenders of copyright and would scold and threaten anyone that they felt was on the borderline of fair use. REASON? The fair use clause is horribly written and is legally provides zero protection from libraries or schools from litigation as told to us by lawyers.
So don't touch and don't get near anything that looks beyond showing a video in the classroom. Then a school was sued for students watching legal videos in "public areas" AKA lobbies and even outside on their laptops. This was when buy these viewing licenses to cover yourself for classrooms that show video content started.
It's too bad librians couldn't muster the mettle to pull a DMCA type of user-based accountability. I'm serious about this, as Fair Use does have significant implications when performed in an institutional setting, but by the use of individuals, it becomes much more easy to circumnavigate. One of the greatest misconceptions is the extent to which Fair Use applies - showing an entire video? That's not Fair Use except perhaps in a Film Studies class by a vetted Professor. Showing a snippet of a video as a point within a broader presentation or lesson? That's the goal of Fair Use.
Showing videos as a general rule is a Performance Right issue, not Fair Use. The DMVs in my part of the world routinely broke the law by showing Disney VHS tapes in the lobby. I'm talking for years, not just an isolated incident. That's not a Fair Use issue in the least, and lawyers, with respect to the law, could reasonably pursue compensation.
Are you familiar with "independent coffee shops" coming under fire from ASCAP for hosting open mic nights and/or playing AM/FM/XM/Internet Radio without paying official dues? The poor widdle coffee shop owners claimed it was extortion, or they tried to muddy the water with some kind of Fair Use claim, but they didn't have a case and I have to admit that ASCAP was abiding by their legal rights. Now, coffee shops are more diligent in telling people to play originals, not cover songs.
Overall, my point is that Fair Use is so utterly abused as an argument by people who don't understand Copyright, Performance, and other nuances of (wholly butchered / Disney-lobbied) legal channels that it genuinely hurts those who understand the concept. I routinely have to counter the argument that Weird Al is an example of Fair Use (as a general principle of using other people's music) because it's a very specific issue that he is legally allowed to do - Parody. Showing Bambi or non-Public Domain documentaries in the lobby of your library isn't Parody, nor should it be argued that way. Besides, if librarians can't find enough Public Domain content or educate students enough to assist them researching a project, then the job is effectively wasted space, and should be tossed out of conversation with respect to utility and necessity.
Radio is a public broadcast and people get sued for tuning in. Like the NFL Super Bowl party limitation and screen size of the past. These rules drive me nuts and should be reviewed in my opinion.
So your recommendation to all the street performers? If open mics are "stealing" from the artist then street performers are at a whole new level. We will have no art or performance in our society if we continue these down these roads of copy right and performance.
Only one's that can do anything reflecting to society will be satire and that is only because of the Supreme Court.
As I see it, part of the problem comes from the attitude taken about enforcement when laws are written compared to actual enforcement a decade later. I've had it with statements like, "this is meant for corporations" or "on one would try to enforce this against a private citizen because there's no money in that" because those laws always end up turned against mom & pop operations. Patent and copyright trolls have put the lie to such claims.
IIRC Satire isn't legally protected, just Parody. There's a distinct difference. I think Hustler was a Parody ruling.
What you're failing to recognize is that the coffee shop owners are, for lack of a better term, profiting from the music being played in their establishment. In a more direct case I can speak to, I frequently purchase beer from the places where I've played open mics. They directly profit from hosting the event, and feel that they should be exempt from paying the compositing artist association dues...why?
Now, for street performers, they are providing a service akin to radio, insofar that they are publicising a song, not charging a cover, and further advancing the arts and society's respect for them (putting aside the quality of the performer). That's why my local city has ordinances actively supporting busking - provided no solicitation for compensation is put forward - because it makes life better. In turn, performers are allowed to have a tip jar or accept compensation as they are benefitting society and the arts through the "practice and performance of their craft" as the ordinance describes it.
Satire is a defense to defamation, which was what Falwell sued over, and Edward Norton, playing Larry Flint's attorney, did such a swell job of depicting in the movie, People vs. Larry Flint.
Ah! Nice to have that input. I'm with you in spirit, for sure. That stated, I think we are both on-track with some of the difficulties relating to Speech vs. Fair Use. Freedom of Speech seems to be the tenent by which Flint won against the Defamation charge. However, in Fair Use, where Parody has very clear protections, it seems Satire is not as supported as grounds for Fair Use. The Wikipedia citation regarding Campbell notes that Satire may be protected, but yet again, we run into erratic outcomes on the subject. Phew!!
Why do you think the Fair Use section is so poorly written? I'm inclined to agree with you that it doesn't provide as much protection as some people might think, but I don't know about "zero" protection.
I support the EFF and the protection of fair use, but I don't think this article is well written enough to make a good case for it. It makes some coherent points near the end of the article, but the beginning is just a jumble of statements that introduce a fair amount of confusion.
For instance:
"New technologies and services depend on the creation of multiple copies as a matter of course. At the same time, copyright terms cover works many decades old and copyrighted software appears in more and more devices."
That's just a mess of an argument. What does it even mean? "Copyrighted software appears in more and more devices." Hasn't every electronic device ever invented (from the Sony Walkman days, to VCRs, to every flat screen television on the planet) contained copyrighted software? How is that "more and more"? I don't get the argument here.
I agree; I was hoping for a more cogent explanation, but the whole time-shifting concept with respect to Fair Use is...weird? It's more of a "Terms of Service" type of issue, from my perspective, in that paying for the service should carry with it certain reasonable rights. It's not exactly a "transformative" notion from my perspective, but honestly, the courts have been so all over the map of reasoning that it takes me a while to figure out the logic. Sometimes, when I do figure it out, I get really, really mad with flashbacks to the crux of the Napster case which ruled "A home computer is not an audio device and therefore person-to-person sharing of audio copies as Fair Use does not apply" (paraphrased) and is so utterly shitty and wrong it has led us down the DRM wormhole.
At least Eminem successfully sued for his 50% cut. For those unfamiliar, the jist of the story is Eminem's label told users they were 'leasing' a song, which entailed a 50% royalty rate to Eminem, but they accounted each lease as a 'sale' and paid him closer to 20%...which was in violation of his contract. He sued, he won, and it's a thorn in the industry's side to this day. I blame the greed of "having our cake and eating it too" and the outcome pleased me on both fronts as an artist and paying consumer.
Time-shifting is not a "Terms of Service" issue, because fair use is a right under copyright law and signing a license cannot take that away from you.
Also, I think you misread the article: Time-Shifting was never ruled to be transformative. It was ruled to be fair use by the Supreme Court because it is for private use and does not affect the market for the original work.
Ah, indeed I conflated the "transformative" part from the book scanning, which makes them searchable. That's definitely a value-addition of the process, to me. Oh well, I'll leave the comment as it stands, flawed as it may be.
As far as signing a ToS / license, yeah you're right in principle, but I have no doubt that right will, as it was in this case, be under heavy legal artillery for the foreseeable future. Even the NFL hasn't bothered to change their tune with their "...is prohibited" disclaimer, which is fundamentally unenforceable. Maybe if that kind of dishonest truth stretching were an actionable offense, the stakes would be a little higher and cases more interesting.
Yes, misleading copyright notices are real a problem as they cause many people to think that they will violate the license by exercising their fair use rights. Fixing the language might help - but I'd like to see fair use more clearly defined, so that consumers can easily check if their activity is legal, regardless of the license.
Does anyone know a good lawyer for fair use issues? I've got a project that I'm fairly certain falls on the fair use side of the line, but it's important enough that I'd like a lawyer's opinion.
As an IP lawyer, i can tell you that you will never get a definitive answer, and it's pretty sure all you will do is waste money.
Fair use is a mixed question of law and fact, and the fact issues will go to a jury (and in some cases, the judge will send it all to the jury). Without an actual trial, it's really hard to say what is fair use, unless what you are doing is something identical to say, an existing supreme court ruling :)
If you recall, GoldiBlox retained a big-time Silicon Valley IP firm when they filed suit against the Beastie Boys claiming Fair Use. When it became obvious the Beastie Boys 1) Were going to fight, and 2) The Beastie Boys were going to win, GoldiBlox fired them and hired different counsel. I would've preferred the case to go to court for some real, hardcore clarification. That would've done a lot of good for the legal, commercial, and artistic community.
Granted, I did really, really like how GoldiBlox had to wear a proverbial dunce cap by putting a statement on their website to the effect of "We were wrong, way wrong, shouldn't have done that, and don't make the same mistake we did." Pretty epic. Also, it does go to show that hiring a law firm to tell you what you want to hear is completely possible, though fiscally dangerous.
Lawyers are very good at identifying threats, but they will never offer you much assurance about an issue as subjective as fair use. There's always some speculative danger they can see that's technically, though maybe not realistically, justified.
What you can do is ask a lawyer if your idea is obviously not fair use and you'll get a straight answer. But you're not going to find someone who is going to say to you "yes, this is fine" because the law covering fair use is so vague. Laywers need to protect themselves when giving legal advice.
I'd recommend reading up on fair use and using your own brain. Case law is especially useful, i.e. many fair use cases regarding software have been to the supreme court - if you find a ruling covering something similar to your project then that is a good sign - Wikipedia and Google News are your friends.
>I'd recommend reading up on fair use and using your own brain. Case law is especially useful, i.e. many fair use cases regarding software have been to the supreme court - if you find a ruling covering something similar to your project then that is a good sign - Wikipedia and Google News are your friends.
I wouldn't do this for myself and I am lawyer capable of doing this sort of work for someone else.
You bias your own research when you are too close to the matter.
If you want a good rule of thumb for commercial fair use: Don't use copyrighted material at all unless you are doing a clear parody.
There isn't much assurance to offer. The vagueness of fair use often benefits copyright plaintiffs, due to procedures that are as much or more a part of copyright law as the big ideas behind doctrines like fair use.
From Wikipedia:
The Supreme Court of the United States described fair use as an affirmative defense in Campbell v. Acuff-Rose Music, Inc. This means that in litigation on copyright infringement, the defendant bears the burden of raising and proving that the use was fair and not an infringement.
In other words, fair use is not "an exception" to copyright violation, but a legal process you can try to perform when you've been sued for copyright violation and concede that you copied (&c.) someone's work. If you've wound up in court, or even gone back and forth on a cease and desist letter, you have already drowned in inconvenience, cost, and lawyer time. You might be "right," but you've still been screwed by the copyright holder, who may be on the war path to make a point with a legal budget greater than your net worth.
Remember: lawyers are responsible for practical advice, not intellectual, political, or ideological purity. They will be very sensitive to attempts to treat them as "lawyer-approved" stamp dispensers, and will assume an appropriately skeptical defensive stance. You may think the "substance" of fair use is more important than practicality and procedure, but a good lawyer will anticipate present risks and won't bother reading up on case law on your dime when, as a practical matter, that research and those arguments will never help you. A lawyer that gives you the bad advice you need to feel vindicated now might face reputation damage and potential malpractice liability later when bills mount and you suddenly wonder why your lawyer wasn't watching out for you. Yes indeed, it can be a lot more fun to go it alone on Google, following only links and leads that seem reassuring, a dog-eared Lessig book beside you and a Doctorow talk in the background to keep you warm.
You probably saw this coming: I'm not your lawyer, and this isn't legal advice meant for you or anyone else. If you have a legal problem, find a trustworthy lawyer. They'll ask questions to understand the specifics of your situation, which will affect what advice they give in ways you might not expect.
There are two questions you have to ask. One goes to the attorney's opinion of actual legality/defensibility. The other goes to likelihood that it will attract legal action. It's a business calculus.
"Laywers need to protect themselves when giving legal advice."
Well, yes, but that's not the reason here, the reason is the other thing - we can't give a definitive answer because none exists.
