Copyright Part 1: Guiding Principles and Online Application

March 5

The Internet has enabled individuals to become involved in the production of media and to distribute their contributions widely at a very low cost. The former bastion of the entertainment industry is opening up to what many are calling a democratization of culture. The copyright doctrine of fair use seemingly bolsters the right to recut, reframe, and recycle previous works, but the protection fair use gives to those re-purposing copyrighted material is notoriously uncertain.

Over the next two classes, this course will take up the some of the issues related to copyright protection and enforcement online. Today’s class will focus on the legal regime of copyright: what it protects, what it doesn’t protect, and how the doctrine has transformed in light of digital reproduction and distribution.

Download slides for this week's class.

Assignments

The second half of assignment 2 (commenting on prospectuses) is due before class today. Information on the assignment can be found here.

Readings/Watchings

• Wikipedia, Copyright Clause

• U.S. Copyright Office, Circular 1: Copyright Basics (read only Who Can Claim Copyright?, What Works Are Protected?, What is Not Protected by Copyright?, How to Secure a Copyright, and How Long Copyright Protection Endures)

• 17 U.S.C. § 107 - Limitations on Exclusive Rights: Fair Use

• Lawrence Lessig, It is About Time: Getting Our Values around Copyright (watch first 6 minutes)

• James Grimmelmann, Why Johnny Can’t Stream: How Video Copyright Went Insane

• Terry Hart, There is No Magic Bullet

• Lawrence Lessig, Remix: Making Art and Culture Thrive in the Hybrid Economy (Introduction only)

• Creative Commons, A Shared Culture (video, watch all) and Spectrum of Rights

Optional Readings

• Jessica Litman, The Exclusive Right to Read (introduction and Sections I and II only)
• Julian Sanchez, Ars Technica, 750,000 Lost Jobs? The Dodgy Digits Behind the War on Piracy

Links

The gloss we're doing in class on the duration of copyright terms is a bit simplified. For a more detailed chart discussing copyright duration, check out the chart developed by Cornell's Copyright Information Center.

Class Discussion

Please remember to sign your postings by adding four tildes (~~~~) to the end of your contribution. This will automatically add your username and the date/time of your post, like so: Asellars 15:29, 21 January 2013 (EST)

I was somewhat surprised by the tone of Julian Sanchez', Ars Technica, 750,000 Lost Jobs? The Dodgy Digits Behind the War on Piracy. It reads as if it were written by some type of torrent-freak railing against legitimate business, and is about as informative. While his fundamental point that it is hard to quantify the harm copyright piracy does in terms of economic loss and jobs lost is reasonable, he does nothing to argue against the undeniable fact that the United States (and Canada) do lose jobs and money due to the piracy. Sanchez' point "When someone torrents a $12 album that they would have otherwise purchased, the record industry loses $12, to be sure. But that doesn't mean that $12 has magically vanished from the economy. On the contrary: someone has gotten the value of the album and still has $12 to spend somewhere else" is just flat out wrong. It may be valid when an American steals from an American, or a Canadian steals from a Canadian, but it does not apply when a Canadian steals from an American, or more problematically, when China and the rest of the world steal from America. The US trade deficit with China is enormous. This is due in quite a significant part to the fact that we import and pay for enormous amounts of manufactured goods from China, while China imports, but does not pay for enormous amounts of IP from the US and Canada (think fake Apple phones, hacked MS office, every single hollywood movie and song, serious technical data and research). While Sanchez might not want to pay $100 for MS Word or $20 for a movie, he should think twice before accepting the argument that the 6.1 billion people in the rest of the world do not have to pay the US for IP. Joshywonder 10:18, 3 March 2013 (EST)

Thanks for the very thoughtful comment, Josh. I'm not sure if Sanchez meant to take on the second question as to how much damage is caused to the American economy by piracy. As to the "$12" discussion you mentioned, I agree that Sanchez is being a bit too fast and loose here, but I think what he is driving at is more macroscopic: that the presence of downloading for consumption of works doesn't have a substantial impact on the discretionary spending budgeted by citizens in America – the same amount of money is being spent, it is just being reallocated. I have no idea if that is true or not, but I do know that studies that have looked at the microeconomic dimension of that – that is, whether each download should be valued as a lost sale – have suggested largely that it does not. Felix Oberholzer-Gee and Koleman Strumpf have the most famous examination on point (and their study has its critics), but other studies done by Wharton and others have reinforced the general point. My point in including in today's reading was not to suggest that the RIAA is wrong and that Sanchez is right; it is rather to highlight the fact that we are trying to legislate in an area that is famous for a lot of hyperbolic talk and little empirical analysis. asellars 12:16, 5 March 2013 (EST)

The Ars Technica article was very intriguing and made me think of the landscape of Internet access with the high fixed costs of transitioning to a fiber optic network. I’m sure that laying cables, etc. was extremely costly (which we have reviewed in previous lectures). However it opened the doors to much greater advancements in technology. I believe that if subsidies were somehow provided to entice companies to build fiber optic networks then the internet may experience a harkening much to the likes of cable television. And with greater technological advancement will surely come greater legal points of contention. I wonder if the legal battle for transmitting copyrighted information will become more heated as technology continues to progress. AaronEttl 11:51, 3 March 2013 (EST)

Grimmelman’s article on the madness of the Cablevision case really encapsulated the crux of the copyright debate for me. Grimmelman concludes: “Instead of asking which back-end technologies are legal, it might make more sense to ask what it is legal for users to do with computers on the front end.” An astute point that should be obvious (and I personally loved Grimmelman’s irreverent tone to reinforce this). The protection of copyright is a dense, complicated problem in the digital era, but to make progress, we have to be able to agree on some sensible underlying assumptions. Namely, that “copying” and “performing” is different in the digital world than in the analog world. Consequently 1.) we can't directly apply old copyright regulations to new ones and 2.) we ought to apply copyright regulations as they relate to users’ uses rather than some obscure behind the scenes minutiae.

Reading Grimmelman’s article, I was blown away by the technical intricacies of de-duplicaton, public performance, and what constitutes as a “copy.” Absent from the discussion surrounding Cablevision were issues of user practices, fair use, and rethinking the nature of a digital copy. As Lawrence Lessig points out, the technology with which we access our culture today has changed – copying is ubiquitous in our creative “remix” culture. And so while I think few people fall into the extremes of “abolish copyright altogether” or “preserve everything bout old copyright” it’s important to recognize, as Lessig says of Aaron Swartz’s work, when to recognize “dumb copyright.” I think by focusing too heavily on analog metaphors and technical loop-holes, we do little to combat dumb copyright.

Film major side note, here are some brilliant video essays on the subject:

Everything is a Remix: http://www.everythingisaremix.info/watch-the-series/ A Fair(y) Use Tale: http://www.youtube.com/watch?v=CJn_jC4FNDo

Asmith 22:18, 3 March 2013 (EST)

The prosecution of You Tube videos when a "performance" is uploaded of a toddler dancing to a pop music hit seems to me to be self-defeating and more in the sphere of 20th century thinking, such as when the music industry flailed about trying to stop digital downloads of their music. Times change, and the intellectual property laws that were lobbied for at one time and passed must be re-thought in the digital age. Needless to say, other countries around the world mercilessly copy and sell material such as DVD's of movies and music. This is nothing new, and it has not stopped. Clothing is copied in the same manner. Prosecuting citizens of your own country for enthusiatically promoting a brand for free on You Tube or anywhere else on social media or in person at a non-profit exhibition, or even for profit in a cover performance is to me the worse excess of over regulation. Performers can make money off of live performance instead of through digital sales. A copy of clothing is not the real thing, and those who can afford the real thing would never wear a copy, such as a Rolex on the corner. The customer base is grown through copies, not diminished. The global economy solves that problem. When corporations and laws focus on free trade in the global market and seek their profit points from live performance and pushing related items such as digital memberships for exclusive content, and interaction with the performers and creators of the art, intellectual property law will no longer be grasping at straws attempting to regulate across national lines into another country and have when that fails, go after their own fan base! Profit centers change, and in the digital age regulation and control have a place, but are not a replacement for the free market and competition that is able to flourish on world stage.

Daniel Cameron Morris 13:15, 5 March 2013 (EST)

Wikipedia's and the U.S. Copyright Office's explanation of copyright made the law seem straightforward and easy to understand. But once the readings and video started tackling the copyright issues in the internet realm, everything became rather confusing. This is partly my fault for not knowing a lot about copyright law, but from what I've read, it seems like the courts (and legislatures?) are also still trying to figure how the copyright system should work in cyberspace.

Is the problem because we're trying to apply a system of laws that was originally developed to regulate mostly ideas fixated on tangible objects (books, cds, records) on a virtual platform? The debate about what kind of "copies" are legal (see e.g. the Ars Technica reading on Video Copyright) result in strange rules/law, as Grimmelmann summarizes: "A million viewers and a million copies—OK. A million viewers but only one copy—not OK."

If the copyright law is interpreted broadly, I think a lot of normal online activity infringes the law. And yet it's so easy to click to a page, save a chunk of text, movie, and/or image one likes, then share it somewhere else, making more and more copies. Are these activities infringing copyright law? It's not fair use, it's more like sharing. In the physical world, I would share a book I like by actually lending it to a friend and not photocopying it because of the hassle; but when applied online, the matter is as simple as a right click of a file, then "copy" then "paste." And the paste can result in tons of copies without much effort.

Perhaps a new system should be created for the internet, instead of just applying the old principles of copyright. Creative Commons is a step in that direction, but the issues dealing with traditional intellectual property (such as music and books published by by brick-and-mortar businesses) going online still aren't solved.

I think Lawrence Lessig made an important point reminding his audience that the purpose of copyright law isn't supposed to make money for the rights holder, although that's a nice reward, and there are business models built around that (e.g. the music and movie industry). Rather, the purpose of copyright is to provide the incentives to create an environment that fosters creativity and discussion. Any thinking on how copyright should apply to the internet should keep these goals in mind.

--Muromi 06:27, 5 March 2013 (EST)

I found the video Creative Commons very inspiring. This video really harnessed my view on the globalization of technology. The view that sharing content can advance education, technology, medicine, just to name a few areas is not new. While most countries and companies hold their intellectual property close to their chest and will fight tooth and nail to take anyone down who infringes on it, we should evolve as a culture to allow for a shared space. This shared space could provide the insight to allow for advancement rather than stagnation. One little binary code, or biological sequence can inspire another individual to change the world. Interestingcomments 06:35, 5 March 2013 (EST)

The readings this week are well balanced: past, present, and future. The overview about Limitations on Exclusive Rights (17 USC § 107) and Exclusive Rights in Copyrighted Works (17 USC § 106) sets the stage for copyright regulations, dating back to the U.S. Constitution. The examples in the other articles draw attention to present-day legal debates, such as Internet streaming (i.e., the son of cable). And, the Creative Commons (CC) video/article, is a segue to the future of copyright regulation and knowledge transfer. From my perspective, the future outlook is an interesting scenario to consider.

During the first month of this course, we've learned that the boundaries surrounding online regulation and sovereignty are complex. Online copyright follows suite. Literary, musical, dramatic arts, choreographic works, and motion pictures, among the other forms of communication (outlined in 17 USC § 106) are continuously shared, yet who becomes the ultimate online police? Much like freedom of speech, it seems almost impossible to define the boundaries of copyright infringement in cyberspace. When intellectual capital (IC) is shared without approval, where is the line drawn? From the standpoint of last week’s “third-party provider articles,” the stakeholder web appears even more convoluted. IC passes from hand to hand, server to server, website to website. Who assumes accountability?

CC is interesting because it opens the door for knowledge sharing, and anyone can participate. It promotes “creativity, collaboration, and access.” I personally like the mission stated in the video: CC moves away from content control and thinks in terms of communications, bringing communities together through open-ended collaboration. This concept is in-line with the “online freedom of speech argument,” promoting creativity as a means to become more united. Creating and sharing within an online global community generates different outcomes versus building legal walls (i.e., copyright restrictions).

What do others think about the CC-form of communication and expression? Can this collaborative concept dominate the web, or will restrictions trump open-ended communication? Are there parallel online communities that mirror the Creative Commons’ concept? Zak Paster 11:22, 5 March 2013 (EST)

I really enjoyed reading material for today’s lecture, however the main question arises as to why can’t we apply the laws of intellectual property in a simple and coherent manner? In my view, the law of copyright seems to be falling apart, while restricting the information that can change the world and [could] alter the research and development of new and improved results of diverse frameworks. What about community? How can we share intellectual information if it’s so drastically protected? The article of Grimmelmann portrays an interesting view of copyright of video industry, which has its own architecture of copyright law (fees for Netflix and hulu as an example), however, how about those individuals/countries that cannot afford the copyright [fees] conditions? While watching the video about Creative Commons on A Shared Culture, I was definitely inspired about the comments that were made, which I completely agree with. I believe that laws do get in the way; furthermore, a shared community must exist (and it does at some extend) in order for diverse societies to be able to adapt by the laws, which must portray a source of freedom within creative and intellectual spectrums. user777 11:44, 5 March 2013 (EST)

Wikipedia gave a brief and general description of the Copyright clause of the US Constitution, the history and origin of the copyright language and its effects. I've come to expect a bit more out of the Wikipedia community and was a bit surprised that there wasn't more content on it, especially considering the controversial nature of copyright laws.

The first six minutes of the Lessig speech and his first point - the elephant in the room - seemed to me to neglect the idea that while the Internet is a place where massive amount of information is available virtually, the same information is still available through more traditional means and in physical form. This point is important because much of the world has access to traditional (i.e. pre-online) access to information and do not need to violate copyright law in order to access it. The counterpoint to my point would obviously be that much of the world does not have access to traditional forms of information and the Internet is their best and only means to obtain such information. However, I think it remains important to point out that convenience should not be a justification, in and of itself, to tear down copyright laws.

Finally, I struggle to understand the perspective those who are hostile towards the very existence of any copyright law. Copyright law protects the motivation and incentive for profit-seeking institutions to create and help advance the world by offering more choices, whether the purposes of their products or services are educational, entertainment, scientific or other purposes. It is true that those with altruistic motivations (i.e. those who create for the purposes of the proverbial "greater good" of society or the world) can and have made major contributions, but to ignore the value in protecting intellectual property of profit-seekers and those who want to protect what they create for any other purposes, will remove the incentive for a massive portion of the creative world to continue to produce.

CyberRalph 11:53, 5 March 2013 (EST)

Thanks, Ralph. If you're still hungry for more reading about the Copyright Clause and its history, I would strongly recommend Dotan Oliar's The Origins and Meanings of the Intellectual Property Clause. His is probably the leader in the space about what was going on in the Framers' minds when the clause was drafted. And I wouldn't presume to speak for Lessig, but he has been rather insistent throughout all of his scholarship that he is not a copyright abolitionist. The question for him (and for me, and for many, many legal scholars out there) is not the whether, but the how – what is the appropriate calibration of rights and limitations that would afford authors sufficient (and appropriate) compensation for their works, while also allowing the general public sufficient freedom to expand and build upon existing works in order to further our scientific and artistic progress.asellars 13:56, 5 March 2013 (EST)

This week at the computer was pure ecstasy. I love the articles that we read for class and the informative nature of this material. The copyright problem as exasperated with the current issues is probably the most interesting thing ever. So, when I went to that site called Creative Commons, I felt like the world was lifted off by back. I sat in front of my computer and was elated. Then, I realized that the articles listed there were open copyright copyrights and basically send up the idea that the whole situation there is just about as fabulous as a Project Runway show where intelligent designers get their ideas stolen by people with more intellectual capital. So regardless as this is, the differing platforms and the differing modes of media interpretation, show how people online can steal eachother's ideas, even if not the spellcheck. So this weeks readings left me in a tizzy about lecture today and I know that regardless of this exoneration of say, multiple cycles of cyclical group therapy, aka communism, that the internet is certainly a place I will continue to play on for years to come. Thank you for you time. Johnathan Merkwan 12:49, 5 March 2013 (EST)

I thought this was a good basic overview of copyright law and the Creative Commons license. However I would have liked a bit more background (thanks for providing the link) on current copyright law, and a bit more critique on the Creative Commons licenses. I found a Wikipedia page, http://en.wikipedia.org/wiki/Creative_Commons, on the Creative Commons license that contained some links to critical voices. I also found a paper that went a bit into who is using the licenses and how they are using them herehttp://www.law.ed.ac.uk/ahrc/script-ed/vol4-1/coates.asp. The author of the article, Jessica Coates, was the Project Manager at the Creative Commons Clinic at Queensland University of Technology at the time the paper was written. The Creative Commons website contains a list of articles here:http://wiki.creativecommons.org/Scholarship_and_critique_regarding_Creative_Commons

According to the Creative Commons website, this is the current breakdown of usage, charts are available on the site. See the site for how the data was gathered and the caveats on usage) http://wiki.creativecommons.org/License_statistics "These charts show a breakdown of the types of licenses deployed and the properties of deployed licenses, based on Yahoo! queries as of 2006-06-13. (As above the Google API is now superior for an aggregate count, but Yahoo link: searches are superior for measuring the relative deployment of specific licenses and thus specific license types.)"

by: 96.6%

nc: 67.5%

nd: 24.3%

sa: 45.4%

Finally, knowing little more about current copyright law and use then can be found in this class and in the media, one of the critiques mentioned in the Wikipedia article on the Creative Commons had me wanting to know more:

"Péter Benjamin Tóth asserts that Creative Commons' objectives are already well served by the current copyright system, and that Creative Commons' "some rights reserved" slogan, as opposed to the "all rights reserved" principle, creates a false dichotomy. "Copyright provides a list of exclusive rights to the rightholder, from which he decides which ones he wishes to 'sell' or grant and which to retain. The 'some rights reserved' concept is therefore not an alternative to, but rather the very nature of classical copyright." The link for this quote is here:^ Tóth, Péter Benjamin (2009). Creative Humbug. Indicare Project http://www.indicare.org/tiki-read_article.php?articleId=118

I suppose the response to this argument is that one would have to track the creator down and request permission for use, whereas the Creative Commons license allows this info to be embedded by machine language and carried across the web with the material, but without digging into the articles on the Creative Commons website and elsewhere on the web, I really don't know enough (and obviously, I'd like to) to have an opinion on whether or not the Creative Commons licenses are truly a solution to the problem to which tonight's readings point.

Raven 13:03, 5 March 2013 (EST)

Thanks for sharing that, Raven. We will (time permitting) be digging into the limitations of the Creative Commons solutions tonight, but I do appreciate you flagging them here as well. More criticism can be found here. I'd note that much of the modern criticism around Creative Commons (especially as version 4.0 of the licenses is soon to be deployed) is not based on the premise, but on the execution – wondering whether and to what extent the licenses may develop inconsistencies or may be incompatible with other open source licenses (such as the GNU FSF or MIT licenses). My response to Tóth would begin with what you flagged already – that it would be impossible to actually track down each specific user to secure the rights to do many things online. Tóth is correct that the rights granted under copyright (for the most part) are optionally enforceable, but there's a big difference in execution between deciding whether to exercise that option in the moment and communicating to the world that you can use this affirmatively. As to whether it "erodes" copyright, another popular criticism, perhaps most famously brought by ASCAP, I personally don't find much credence in it. Creative Commons very much depends on copyright in order to work, as enforcement for violation of a CC term (e.g., using CC-BY-NC works for commercial purposes, or CC-BY works without attribution) would be an action for copyright infringement. The only major US case addressing open licenses used this to find liability for violation of the GNU GPL. And by empowering authors to decide for themselves work-by-work the fundamental choice remains with the party who – as Tóth said – is empowered always under copyright law to make the choice. asellars 13:47, 5 March 2013 (EST)

As a nonphysical and interactive medium, the internet alters concepts of ownership, reproduction, and exchange. On the internet, people can can claim others' media and ideas much more subtly than in the physical world. Technologies that aggregate massive amounts of content, such as Google and Wikipedia, strip owners of control over their work . As Lessig argues, the internet has changed the way we interact with out culture, and thus, necessitated revision of how culture creators establish ownership. While less prohibitive licenses such as the Creative Commons have developed, these new terms of ownership do not mitigate the disconnect between content creators and online users/viewers. Not just copyright law must change, but also internet users' awareness of copyright law in of online work they hope to use. On the creators end, while uploading content, they should be able to designate copyright preferences. At the user endpoints, perhaps web browsers could have a feature that allows users to view the specified copyright of web content elements, similar to the web inspector tool. If there were more apparent ways for users and creators to interact with copyright, I wonder whether this would constrain accessibility to and sharing of information. Jax 13:17, 5 March 2013 (EST)