Author: john

More “‘Dysfunctional Views’ on Copyright in the Federal Government”

Dysfunctional Views on Copyright in the Federal Government | Public Knowledge

PK’s Sherwin Siy writes about a recent talk by Susan Anthony of the Patent and Trademark Office where she recounts an incident with a “shocking” number of “mischaracterizations” on the issue of fair use. From the description, it sounds as though he is correct that Anthony, while generally supportive of fair use, falls on the more protective side of its interpretation. Siy asks an important question:

How are we ever going to have a functional copyright policy if those who are charged with educating others can misstate such basic concepts so thoroughly?

While the law of copyright does have a few seemingly indisputable points, I would argue that interpretations of the law are so wide that “education” isn’t the way to look at the issue. As copyright becomes increasingly divisive, I think educating someone on copyright is becoming more like teaching someone about a controversial issue or something subjective (like educating someone on the social value of American Idol). Everyone brings their own ideological baggage to the issue.  This doesn’t mean that it can’t or shouldn’t be done (as I have argued, Stanley Fish’s views are very instructive on this point), but rather that calls for education on copyright are bound to fail under our current indeterminate system of fair use. It’s important not to forget that the problem of individual copying was largely solved by individual and institutional norms before the digital age (where it was a concern at all). My question is: is copyright “education” enough to create the norms necessary to create compliance with the law?

What the Copyright Office & the EFF think about Fair Use

What the Copyright Office thinks about Fair Use

This piece contains some valuable insights into how the copyright office construes fair use [narrowly], and equally valuable insights on how the office’s application of the “law on the books” differs from the “law in action.”

The Court’s ruling in the Sony case was limited to “free, over-the-air television for time-shifting,” she tells Ars. “It is not space-shifting; it’s not anything beyond that. It’s not off cable, it’s not off video-on-demand, and yet if you talk to most consumers, they think that anything they do in the home that comes through their television set is fair use.”

This is certainly because of the great social weight we place on the Supreme Court, and speaks well to their role in simplifying ambiguities. While the Court’s ruling may be limited in the courtroom, in the ‘court of public opinion’ rulings such as Sony play an crucial role in setting social norms which in time may or may not agree with prevailing legal opinion.

Further on, an EFF lawyer gives an agreeing analysis, albeit from a different angle, which serves his chosen profession well:

This ambiguity [in fair use] is “not a bug, it’s a feature,” he says. “Marybeth Peters is correct that the Sony Betamax case does not clearly establish that space-shifting is a fair use. Neither does it say that it’s not a fair use. That’s a question for a court to answer when the case comes up.”

Unfortunately, most of us don’t know the law well enough or cannot afford to hire an attorney to fight a copyright case. Who would want to bother fighting an owner for a quickly posted YouTube video, anyway?

No, it shouldn’t.

A Great Idea Lives Forever. Shouldn’t Its Copyright? – New York Times

The question “why is the duration of copyright limited?” is asked somewhat frequently in copyright circles. An editorial in yesterday’s Times argued [note, you may need to be a Times Select subscriber to view]:

Booksellers that publish their own titles benefit not from escaping the author’s copyright, but the previous publisher’s exercise of a grant of rights (limited, authors take note, to 35 years). “Freeing” a literary work into the public domain is less a public benefit than a transfer of wealth from the families of American writers to the executives and stockholders of various businesses who will continue to profit from, for example, “The Garden Party,” while the descendants of Katherine Mansfield will not.
[emphasis added]

While the author has a point that, like many other areas of copyright, profit from public domain works serves to enrich industries which are already financially stable, a crucial point is glossed over: future creative works depend on building on the shoulders of past work. Helperin is right that ideas are rightly beyond the scope of copyright, but in our modern “rip and mix” world the flexibility to use previously copyrighted expression (which has lapsed into the public domain) will likely be demanded by the public.

Or, if cultural arguments aren’t your preference, the copyright has historically been limited because of the potential for abuse by copyright owners. Since copyright in a work is usually transferred from creator to publisher anyway, one might ask Helperin “why favor the original ‘executives and stockholders of [a business]’ over another?” …especially when that subsequent publisher might reinvigorate the original work.

No good case exists for the inequality of real and intellectual property, because no good case can exist for treating with special disfavor the work of the spirit and the mind.

The author shouldn’t forget that intellectual property cannot be owned in any real or metaphysical sense. Copyright holders own a copyright– never an actual creative work.

…and in his typical innovative fashion, Lessig has created a wiki page for an organized rebuttal.

First Amendment and Copyright

Lawrence Lessig and others have called on “the RNC & DNC to eliminate unnecessary regulation of political speech“.

While the First Amendment and copyright haven’t received much support from the courts, the area of copyrighted political speech perhaps holds the greatest potential for finding harmony in these seemingly disparate areas of law. Rather than risk future litigation, Lessig rightly has called for broad rights to political debates to enrich political discourse in the public. Please spend a few minutes promoting this worthy cause.