Category: 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.

The C-Span copyright issue was one I had meant to blog about, but missed the window of opportunity. Thankfully, C-Span has opened their window of allowable use of their expression to include attributed, non-commercial use on the web. This will likely take care of most of the demand for use, but I’m wondering if there are still a few cases where it may not go far enough. Fair use might protect the example of a corporation who wants to post a legislator’s speech for purposes of criticism, but it would not shield them from the threat of a lawsuit.

In my view, a few static cameras and creative software/server tricks could meet the demand for copyright-free governmental material, while still leaving space for C-Span to make quality government television. This could be done at little taxpayer expense and would go far to shed more sunlight on how government works. The problem: image conscious public servants would never go for the idea (on the chance that they might get caught taking a nap or rolling their eyes).

Nevertheless, as Lessig said, “More of course would be better. But first steps are progress [towards openness], and deserve sincere praise.”

Links

• Lessig: On being big and being great: C-Span
• Washington Post: C-SPAN Alters Copyright Over Pelosi Flap
• NY Times: In Policy Shift, C-Span Clears Some Clips for Web Use
• Addition – The C-Span press release, which flat out states: “The new C-SPAN policy borrows from the approach to copyright known in the online community as ‘Creative Commons.'” Neato.

Berners-Lee pushes Congress on nondiscriminatory Web | CNET News.com

Berners-Lee testifying before the House Energy and Commerce Committee is interesting in itself, but his comments on copyright and DRM were surprising to me. After being asked how creators might be compensated in a world free of DRM, the following exchange ensused (pardon the long quote):

Berners-Lee said a better approach would be to devise software capable of tracking whether a person owns a particular file. “It won’t stop you, but it will let you know if you’re playing music you shouldn’t listen to because you backed up someone else’s machine and you got access to it,” he said.

“Is that not the equivalent of having the speed limit but no enforcement of the speed limit?” Bono replied.

Berners-Lee suggested closed DRM regimes were akin to enforcing a speed limit by requiring the offending car to “grind to a halt” and added, “I am inclined to try to make software that allows you to do the right thing first.”

I’ve thought a great deal about the similarities between copyright and speed limit laws — both reach into the realm of private life, both are frequently igored. What I like about Berners-Lee’s response is the idea of making code be a tool to set soft social and legal boundaries. Rather than tightly lock materials, or rely on “educating” the public about copyright, this solution might generate more acceptance of copyright by alerting users to the boundaries of copyright while still leaving space for ordinary and possibly creative use. Using code to structure perceptions of law in society — what an amazing idea.

Old news:

On the ownership of C-Span materials, Patry’s post about originality shouln’t be missed.

A quick reading the bill text shows that, while doing a bit more to advance fair use, it doesn’t quite go as far as creating a “right.”

First, the bill sets a standard for statutory damages for secondary infringement directing the courts to find that infringement was “done under circumstances in which no reasonable person could have believed such conduct to be lawful.” However, by limiting the language to secondary infringement it’s unclear how this would reach a user who is usually the primary infringer who is for some reason unaware that their activity was infringing. If changes are being made to this section, why not lower statutory damages for infringers who aren’t profiting from their piracy?

The bill includes new protections for hardware manufacturers if their device is capable of “substantial, commercially significant noninfringing use.” This may be good for protecting new and innovative devices, but could also cause confusion over just what a user could legally do with such a device.

Finally, the bill adds additional exemptions for creating compilations, skipping commercial, transmitting via a home network, accessing public domain works, and replacing lost or stolen works owned by a library. These are just the type of specific exemptions that are needed to give users confidence of how they are able to use a copyrighted work.

In all, the bill extends some of the boundaries of fair use, but doesn’t come anywhere near creating a “right” or any other drastic change to the fair use landscape.

A post over at Ars Technica points out another important deficit that this bill does not address: protecting developers of “circumventing devices.”

These are all legitimate reasons for circumvention, but in practice they’re rendered toothless by the fact that they apply only to the act of circumvention itself, not to the act of “trafficking” in tools that would enable non-programmers to take advantage of them. So if Boucher’s legislation passed, a film studies professor would be permitted to use software such as Handbrake to circumvent the copy protection on DVDs and create an audiovisual presentation featuring scenes from various movies. However, developing or distributing Handbrake in the United States would still be a crime.