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November 7, 2015

Fair use and the Google Books decision has posted my brief-ish article on why the decision that Google Books doesn’t violate copyright is a big win for us all.

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October 16, 2015

A victory for fair use

The Second Circuit Court of Appeals today upheld the decision that permits Google Books to scan and index books to make them searchable and for data mining. The court agreed that this is fair use. It also generalized the prior court’s finding so now libraries can also scan their own collection, so long as they provide access as limited as Google Books does. Woohoo!

Here’s the surprisingly readable decision [pdf].

The Authors Guild has now vowed it’s going to appeal to the Supreme Court. But I don’t get it.

Not that this necessarily matters to the legal case, but has the Authors Guild been able to attribute any actual damage to Google Books? Their site today says:

America owes its thriving literary culture to copyright protection. It is because of that success that today we take copyright incentives for granted, and that courts as respected as the Second Circuit are unable to see the damaging effect that uses such as Google’s will have on authors’ potential income.

If Google Books hasn’t produced any visible damage so far, shouldn’t that count as evidence that “uses such as Google’s” are unlikely to damage the interests of AG’s constituency?

In a longer piece on its site, the AG says:

Google Books will indeed harm the market for books,


Further, if Google’s doing so is fair use, then it sets a precedent allowing anyone to digitize books for similar purposes, which inevitably will lead to widespread, free, and unrestricted availability of books online.

But at this point, eleven years after the beginning of the suit, shouldn’t they be able to demonstrate some of that inevitable harm? Did the prior ruling lead to any increase in the unrestricted availability of free books online?

Haven’t we tested The Authors Guild’s hypothesis?

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August 1, 2014

Time to invoke the Streisand Effect?

The Register just posted one of the most ridiculous pieces of clickbait trolling I’ve ever seen. They’re claiming that by posting the parody video below, the UK’s Open Rights Group is comparing people who defend their copyright to Hitler:

It helps to know a few things:

First, the movie the clip, taken from Downfall, has been used for this sort of re-titling parody well over a hundred times, with Hitler fulminating over everything from Miley Cyrus twerking to spam. (Here are seven recent parodies, and 25 from an article in 2009.) Note that the video above was created and posted by Brad Templeton in 2009.

Second, a few years ago, the producers of Downfall apparently got fed up with their movie becoming so well known and started issuing DMCA takedown notices for the parodies.

Third, two days ago the House of Lords protected parodies against copyright infringement suits — covered in the US by our policy of Fair Use. ORG linked to the Downfall parody to celebrate this victory for free speech.

So, it hurts my head how many ways The Register’s trolling gets things wrong. It’s as if someone were accused of violating Godwin’s Law because she invoked Godwin’s Law. [I am taking Godwin’s Law as normative. Sue me.]

Here is the link to The Register article but I encourage you not to go there, just so they won’t feel that this sort of ridiculous trolling is profitable. Instead, we could perhaps invoke a version of the Streisand Effect by posting the video widely.

[A few hours later:] The Register just appended the following to their post:

Since the publication of this story, the ORG has contacted The
Register with this comment: “Earlier this week, the Open Rights
Group tweeted a Downfall parody about copyright on the day that
parody exceptions for copyright were approved by the House of
Lords. Downfall parodies are widely recognised and have been used
to great satirical effect about a wide range of subjects. It is
wilful ignorance to portray a Downfall parody as a direct
comparison with Hitler and Nazism.”



August 24, 2013

Unknowing v. Lessig

Not since the NFL sent a takedown notification to Wendy Seltzer because she posted the NFL’s copyright notice has a takedown notice been so unknowing. Wendy is a law professor and the head of the Chilling Effects archive of takedown notifications. The new Notification of Unknowingness went to Lawrence Lessig for using a short clip to make a point in a video of a talk about the overreach of copyright:

A co-founder of the nonprofit Creative Commons and author of numerous books on law and technology, Lessig has played a pivotal role in shaping the debate about copyright in the digital age. In June 2010, Lessig delivered a lecture titled “Open” at a Creative Commons conference in South Korea that included several short clips of amateur dance videos set to the song “Lisztomania” by the French band Phoenix. The lecture, which was later uploaded to YouTube, used the clips to highlight emerging styles of cultural communication on the Internet. [source: eff]

When YouTube forwarded the DMCA takedown notice to him, Lessig did what so few people do: he counter-notified that his use of the clip was an instance of Fair Use. [More details here.] Fair Use is an exemption to copyright that lets reasonable extracts be used in cases just like Larry’s video. [Better explanation here.] The copyright holder then said they were going to sue Lessig for infringement. Lessig took down the clip and is now taking the issue to court with the help of the Electronic Frontier Foundation. (Did you remember to donate to the EFF?) Their aim is to get the judge to issue a declarative judgment that the the clip is covered by Fair Use, and to get damages as specified in DMCA clause 512f:

(f) Misrepresentations. Any person who knowingly materially misrepresents under this section
(1) that material or activity is infringing, or
(2) that material or activity was removed or disabled by mistake or misidentification,

shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.

Since what exactly constitutes Fair Use is determined by courts, a declarative judgment would help clarify that uses like Larry’s are definitely ok, and the awarding of damages would help discourage organizations from issuing automated takedowns that give no heed to the circumstances in which the content is being used. (But I am not a lawyer, so do not believe me.)

The final irony: The name of the copyright holder is Liberation Music.

Go, Larry! Go EFF! And thank you!

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April 20, 2011

Google’s copyright cartoon

Google’s educational copyright cartoon is amusing in a Ren and Stimpy sort of way

But it’s disturbing that the cartoon purposefully makes the Fair Use “explanation” unintelligible. Presumably that’s because Fair Use is so complex and so difficult to defend that Google doesn’t even want to raise it as a possibility. Nevertheless, it seems like a missed opportunity to do some education. Worse, it’s a sign that we’ve pretty much given up on Fair Use.

Likewise, many of us were disappointed when Google Books dropped its Fair Use defense and instead came up with a settlement (since overturned) with the authors and publishers. It was another lost opportunity to provide Fair Use with some clarity and oomph.

Fair Use doesn’t need just a posse (Lord bless it). It could use a bigtime hero with some guts.


November 28, 2009

Wendy Seltzer on the other problem with DRM

Wendy Seltzer has posted an article that will run in Berkeley technology Law Journal (Jan. 25 2010) . In it she argues that the problems with DRM go beyond its failure to accommodate Fair Use:

The fair use debate is important, but it is not the only problem with DRM. Equally important, but thus far largely overlooked, is the impact on user-innovation and on the permitted development of media technology. Because DRM systems, by design and contract, must be hardened against user-modification, they foreclose a whole class of technology and mode of development. Moreover, this problem is distinct from that of fair use. Even if we could wave a magic wand and fully accomodate fair use in DRM, the incompatibility with user-innovation would persist, because it stems from a different and deeper aspect of the DRM system. Even the “fairest” DRM systems on the market today are unfair to the developers of new technology.

Anticircumvention law, backing TPMs [Trusted Platform Modules] and robustness rules, is fundamentally incompatible with deep-level user innovation…

Here is Wendy’s “Tell ’em what you’re going to tell ’em” paragraph:

First I briefly review the history and existing academic debates around DRM to consider why they have so overlooked the user-innovation impacts. The next sections examine the law and technology of digital rights management, particularly the interaction of statutory law, technological measures, and the contractual conditions generally attached to them. I focus particularly on the “robustness rules” in licenses at at this inter- section. I then introduce the rich literature on disruptive technology and user innovation, to argue that these copyright-driven constraints significantly harm cultural and technological development and user autonomy. I conclude that the mode-of-development tax is too high a price to pay for imperfect copyright protection.