right – Techdirt (original) (raw)
Reminder: Fair Use Is A Right — And Not 'An Exception' Or 'A Defense'
from the it's-free-speech dept
This week is Fair Use Week, according to the Association of Research Libraries, and that’s as good a time as any to remind everyone that it’s wrong to refer to fair as merely a “limitation or exception” to copyright law — or merely a defense to infringement. It is a right that is protected by the First Amendment. The Supreme Court has regularly referred to “fair use” as a “safeguard” of the First Amendment, allowing copyright law to be compatible with the First Amendment. As such, it seems bizarre that fair use is not seen as the default, rather than the other way around. If we are to protect the First Amendment, and not allow for speech to be stifled, at the very least, we need a greater recognition of the importance of fair use in guaranteeing that the First Amendment’s principles of free speech are allowed to thrive.
Freedom of expression is a right that may not be abridged by the government — except in a few narrowly defined cases. Copyright is one of those cases — and we can argue about whether or not that’s appropriate, but at the very least, it’s important to shift our view from thinking “copyright” is the norm and that fair use is a small “exception,” to one where we recognize that free expression is the norm, with fair use making sure that freedom of expression is enabled, even when copyright is present.
Unfortunately, too many powers that be in legacy industries have sought to flip this equation. They deny that fair use is a right — insisting it is merely a “defense” to infringement. While it is true that under current law, in order to be able to demonstrate your fair use rights, you need to raise it as an affirmative defense to an accusation of copyright infringement, that does not diminish the fact that fair use is simply a procedure for guaranteeing your First Amendment rights. It is not a small issue that’s only important in academic debate, but rather a central issue that determines just how strongly we, as a society, believe in the First Amendment.
Finally, how could we conclude a post on fair use without including some fair use in it? How about this video, misleadingly called The Infringement Melody (Section 107 of the Copyright Act clearly states that “the fair use of a copyrighted work… is not an infringement of copyright”), which appears to be a student project to come out of a popular Yale class on Law, Technology and Culture, in which fair use is a big part of the curriculum:
F-A-I-R U-S-E… find out what it means to me!
Also, be on the lookout for tomorrow’s podcast… all about fair use as well.
Filed Under: defense, exceptions, fair use, fair use week, first amendment, free speech, right
Latest Survey Shows People Across The Political Spectrum Are Skeptical Of Government Surveillance
from the and-yet-it's-still-there dept
It would appear that the government’s attempts to convince the public that giving up their privacy for the good of national security isn’t going so well. The latest numbers from the Pew Research Center show pretty broad consensus that it’s not right to diminish privacy rights in order to fight terrorism, and this was true across the political spectrum.
Meanwhile, when it comes directly to the question of NSA surveillance, the research shows many on both sides of the traditional political aisle are against the NSA’s practices:
The various groupings seem a bit suspect to me (and I generally find “left/right” political spectrum analyzing to be a distraction), but it’s still interesting. Given the details of how the groups are made up, it seems likely that many steadfast conservatives and the next generation left might flip the positions above if there were a Republican President, but it does seem notable and important that the solid liberals are now against NSA surveillance as well.
The partisan nature of views on surveillance has been a bit depressing — because you see the very same people who hated the NSA’s warrantless wiretapping under George W. Bush suddenly change their tune under Barack Obama — and vice versa (I even had a bizarre Twitter debate with someone who dismissed all facts by saying “Well, I trust Eric Holder,” which seemed like the ultimate in pure partisan faith). But it’s good to see that plenty of people are ignoring the partisan pull (and whatever attempts there are by the NSA’s defenders to “educate” the public) and are flat out recognizing how problematic these programs are.
Filed Under: left, nsa, public perception, right, surveillance
US Chamber Of Commerce Guest Post On Fair Use Fails Copyright Law 101
from the because-of-course-it-does dept
In another instance of the U.S. Chamber of Commerce’s Global IP Center (GIPC) posting factually incorrect information, on June 11, the GIPC cross-posted a blog post from Plagiarism Today purporting to clarify the meanings of “5 Copyright Terms We Need to Stop Using Incorrectly.”
I ran across this post because of the following GIPC tweet (screenshot posted here in case it mysteriously disappears):
Unfortunately, the linked post gets basic facts about copyright law wrong. On fair use, it reads:
What it Means: A fair use of a work is an infringement of a work where the court has determined that the infringer is not liable due to the nature of the infringement being within the bounds of the law.
I’m honestly not sure how much more wrong one can get. 17 U.S.C. § 107 plainly states:
the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.
To say a fair use is an infringement is to fundamentally misunderstand the nature of U.S. copyright law. It’s also nonsensical. By definition, an “infringement” means going beyond what is permitted by law. An “infringement being within the bounds of the law” is no infringement at all.
The author’s confusion probably stems from the fact that in lawsuits, fair use is raised as an “affirmative defense.” Many people wrongly interpret this to mean that fair use is a kind of acceptable copyright infringement. This is incorrect. Wikipedia explains it nicely:
“Affirmative defense” is simply a term of art from litigation reflecting the timing in which the defense is raised. It does not distinguish between “rights” and “defenses”, and so it does not characterize the substance of the defendant’s actions as “not a right but a defense”.
In other words, an affirmative defense is an admission that you committed the alleged acts, but that other circumstances make these acts lawful.
GIPC blog contributors might want to take an introductory copyright law class before trying to educate others on the meaning of fair use.
Reposted from To Promote the Progress? under its CC BY-SA 4.0 license.
Filed Under: affirmative defense, copyright, fair use, infringement, right
The Old 'Partisan' Lines Don't Fit Nicely With Modern Civil Liberties And Tech Policy Issues
from the rethinking-partisanship dept
I’ve said a few times in the past that, as someone who doesn’t identify with any particular group on the political/partisan spectrum, I’ve appreciated the fact that the issues I tend to cover aren’t normally considered “partisan” and can often create “strange bedfellows.” Copyright, for example, isn’t an issue that fits into partisan lines at all (though, unfortunately, that’s because for a long time, both major parties supported ever greater maximalism — though that may finally be changing). In fact, when issues did become partisan, it often meant that all reasoned discussion and debate (and chance for actual forward motion) went out the window. Net neutrality was a good example of that. When it first came about, the discussions concerning net neutrality weren’t partisan at all, but then the Democrats embraced it, and the Republicans lined up against it, and any reasoned or nuanced discussion or debate about it seemed to vanish.
Still, some issues are historically associated with one side or the other. Things like “national security” often seem to be an issue that the traditional “right” lines up behind, while “civil liberties” is an issue that the traditional “left” lines up behind. I’m old enough to remember when being a “a card carrying member of the ACLU” was used as an insult by Republicans to smear Democrats. Obviously, there are libertarians who are often (in my view, incorrectly) associated as being on “the right,” who care deeply about civil liberties, but for the most part, the general stereotype is that Republicans on the “right” lined up behind strong national security fights and were less interested in civil liberties, while the Democrats on the “left” were “weak” on national security.
So it’s at least a little bizarre to see this piece in Foreign Policy Magazine talking about how the Heritage Foundation, often considered the keepers of the Republican platform, refused to publish a paper that defended the NSA’s surveillance efforts as perfectly legal and constitutional. The Heritage Foundation was a big supporter of the Patriot Act, and urged that the key provisions that enabled the dragnet data collection of phone records be renewed. Even more bizarre? When Heritage refused to publish the paper, Benjamin Wittes, of the Brookings Institution — often considered a “liberal” think tank in DC — jumped in to publish a version of the paper instead:
Cully Stimson, a senior Defense Department official in the Bush administration who now runs Heritage’s national security law program, called Benjamin Wittes, the editor-in-chief of the national security blog Lawfare and a senior fellow at the Brookings Institution.
Stimson “asked me whether Lawfare might be interested in [the papers], and I was delighted to publish them,” Wittes told The Cable. “We asked Steve to consolidate them into a single paper, and there were some subsequent revisions as well because of the document release that took place in the intervening period,” Wittes said, referring to the government’s decision in August to declassify a large number of documents about NSA programs.
Now, there could be a few different things at work here. For example, while Brookings is traditionally considered more on the liberal end of the spectrum, Wittes has long been a full on cheerleader for the surveillance state, so it was a natural fit. Similarly, Heritage is now under the leadership of Jim DeMint, who has long been identified as being more closely aligned with the more libertarian wings of the Republican Party. So this could be simply a case where the leanings of those two individuals resulted in what might be seen as a “strange bedfellows” situation with this paper.
Alternatively, there’s an argument that rather than a sort of post-partisan issue that some of us hope these kinds of issues will become, this really is an overtly partisan issue, to the point that Heritage is less eager to support NSA surveillance by the administration because it’s not “their guy” in the White House, The same may be true for those on the left who are willing to support the NSA’s actions (even when they protested angrily about similar, and potentially less egregious, civil liberties abuses under George W. Bush) because it’s okay with President Obama in charge. If this is true, it’s not just incredibly cynical and short-sighted, but it’s kind of depressing at the intellectual dishonesty of it all.
While either of those scenarios may be true, I’m still hopeful that more and more of these important issues having to do with technology and civil liberties policy will be viewed as post-partisan (which is very different than “bi-partisan”), in that they’re important issues that should be dealt with on their own merits, rather than if you happen to prefer the red team or the blue team. Part of the problem that many of us who focus on things like innovation and civil liberties policy have with the way the political efforts break down is that neither party comes close to representing what we’re interested in. If more of these important issues that are getting attention don’t fit neatly along party lines, perhaps the political landscape can be reconfigured in a more effective way to actually deal with the issues of tomorrow, rather than mere bickering about the issues of the past.
Filed Under: civil liberties, conservative, intellectual property, left, liberal, national security, partisan politics, politics, right, think tanks
Companies: brookings, heritage foundation
Would You Rather Be 'Right' Or Realistic?
from the being-right-in-fantasy-land-doesn't-help-much-in-the-real-world dept
We recently wrote about the excellent comic from Matthew Inman’s The Oatmeal to highlight how companies turn would-be buyers into infringers by not making the content available. Here’s a snippet.
In response, some folks sent over columnist Andy Ihnatko’s response, in which he suggests the comic is actually representative of the sense of entitlement that people feel towards such content. Ihnatko’s writeup is slightly amusing as he tries to mock those consumers for actually having an opinion on how they consume content and concludes with this basic statement:
The world does not OWE you Season 1 of “Game Of Thrones” in the form you want it at the moment you want it at the price you want to pay for it. If it’s not available under 100% your terms, you have the free-and-clear option of not having it.
I sometimes wonder if this simple, grown-up fact gets ignored during all of these discussions about digital distribution.
I was going to write a rather long response to why this is kinda silly, but Marco Arment did a better job than I ever would in explaining the difference between being “right” and being “pragmatic.” You really should read the whole thing, because it involves a rather detailed example involving the physical layout of a restroom. I’m going to skip over that part and highlight the summary point, but it’s worth reading the full thing:
We often try to fight problems by yelling at them instead of accepting the reality of what people do, from controversial national legislation to passive-aggressive office signs. Such efforts usually fail, often with a lot of collateral damage, much like Prohibition and the ongoing “war” on “drugs”….
[….]
Relying solely on yelling about what’s right isn’t a pragmatic approach for the media industry to take. And it’s not working. It’s unrealistic and naive to expect everyone to do the “right” thing when the alternative is so much easier, faster, cheaper, and better for so many of them.
This point could be seen as the central theme of many of the 40,000 plus posts that have been made on this blog: dealing with reality is always going to be a more effective way to go about things than taking some “moral” stand on how things “should” be. And, if you can deal with the realities and it actually solves the whole moral “I’m right!” part at the same time, what good is it to not deal with realities?
Taking the point even further, there’s a simple fact of today’s world, which is that consumers have power. Ihnatko’s entire point seems to assume that this consumer power is “entitlement.” I tend to think of it as consumers making their will known — and that tends to lead to better products that should make everyone better off. What Ihnatko ignores is that a market is not determined by just one side. It’s the interplay between buyers and sellers, and if the buyers aren’t happy, they express that to the sellers in certain ways — and infringement is one of those ways. It’s a market signalling method. I’d argue that it’s just as much an “entitlement” mentality by the “sellers” to pretend that only they get to decide what the consumer should be able to get, without listening to what the consumer wants.
Filed Under: business models, infringement, morals, practicality, realism, right
Being First Isn't The Most Important Thing, Getting It Right Is
from the and-that's-hard dept
Marcus Carab points us to this wonderful comic from Scott Meyer’s Basic Instructions. I won’t post the full strip, but just one awesome panel, so as to encourage you to check out the whole thing. In it, two guys are discussing Steve Jobs and his ability to make products that work:
That last line is a classic:
He’s the kid who copies off of your test, then gets a better grade than you.
But the overall point is a key one, and one we’ve tried to make often around here. Merely copying what someone else has done isn’t all that meaningful. If you’ve just copied, and don’t add anything new, you haven’t done much. But if you can copy something that’s so-so, and make it _work_… that’s real innovation. This is something that people who haven’t built companies or brought products to market often don’t understand. Execution is everything. The idea is almost worthless.
Actually, I really like the way Derek Sivers has explained it: the idea is a multiplier, but the execution is still what matters:
AWFUL IDEA = -1 WEAK IDEA = 1 SO-SO IDEA = 5 GOOD IDEA = 10 GREAT IDEA = 15 BRILLIANT IDEA = 20
NO EXECUTION = $1 WEAK EXECUTION = $1000 SO-SO EXECUTION = $10,000 GOOD EXECUTION = $100,000 GREAT EXECUTION = $1,000,000 BRILLIANT EXECUTION = $10,000,000
To make a business, you need to multiply the two.
The most brilliant idea, with no execution, is worth $20.
The most brilliant idea takes great execution to be worth $20,000,000.
So the idea matters… but marginally. Execution is what makes the big difference all around. Along those lines, being first doesn’t much matter if the execution is weak. And in technology, plenty of first executions are weak. If we limit the ability of anyone else to execute better, then we lose out on tremendous opportunities for others to execute correctly. We want products that work. We don’t want broken products that were “first.”
Filed Under: first, innovation, making things work, right
Companies: apple
Finland Says 1Mb Broadband Access Is A Legal Right
from the my-rights-are-being-trampled dept
While the US is still struggling to figure out how to define broadband and where it’s even available, Finland has decided that 1Mb broadband access should now be considered a legal right, with plans to boost that to 100Mb by the end of 2015. There do appear to be some exceptions for remote households, but if I were living in Finland right now, instead of the heart of Silicon Valley, my “legal rights” would be denied. While I’m not sure it makes sense to define broadband as a legal right, it’s yet another reminder of how far behind the US appears to be on broadband deployments.
Filed Under: broadband, finland, right
Judge Says Copyright Holders Must Consider Fair Use Before Sending DMCA Takedowns
from the this-isn't-over-just-yet... dept
Strong copyright system supporters have always tried to push aside fair use. Sometimes they pretend it doesn’t actually exist. Sometimes, they claim that it stifles creativity. However, in the last few years, they’ve pretty much aligned their talking points on fair use. You’ll hear it repeated again and again: fair use is “just a defense, not a right.” This is a bit of semantics that basically tries to minimize what fair use represents and what it’s designed to allow. The argument, effectively, is that there’s no “right” to fair use, and there’s no clear cut meaning for fair use. Instead, it can and should only be brought up as a defense in court. In other words, fair use does not exist until a court says it exists.
This is misleading and not entirely correct. The reason fair use is allowed as a defense is because there is a right to make use of certain types of content in certain types of ways that constitute “fair use” without first needing to receive permission from the copyright holder. But, it was still this argument that Universal Music recently used to defend itself against a lawsuit from the EFF, concerning the now infamous 29-second video of a little kid dancing, with some music from Prince playing in the background. Everyone now agrees that this video was fair use. Universal Music let the video go back online and did not sue. The DMCA has a clause that allows damages to be sought against a falsely filed takedown notice — which was basically designed to punish those who send a DMCA takedown claiming copyright over something for which they do not actually hold the copyright. In this case, the EFF claims that since this is obvious fair use, then the DMCA notice was falsely filed. Universal, on the other hand, asked the court to dismiss the case, saying it need not consider fair use when filing a DMCA takedown notice — mainly because fair use is just a defense, not a right.
The judge handed the EFF something of a victory, though, allowing the case to move forward and noting that copyright owners should consider fair use before sending out takedown notices. To be honest, I’m a bit surprised by the decision. While I agree that it makes sense, it wasn’t at all clear that the law actually meant for fair use to be taken into account. In fact, I rather doubt that this sort of scenario was even considered by those who wrote and debated the DMCA. Universal will likely appeal on this point, and so we’re pretty far from establishing definitively if fair use needs to be taken into account. However, if this ruling stands, the claim that “fair use is a defense, not a right” loses a lot of its bite. The court effectively said the opposite:
Even if Universal is correct that fair use only excuses infringement, the fact remains that fair use is a lawful use of a copyright. Accordingly, in order for a copyright owner to proceed under the DMCA with ‘a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law,’ the owner must evaluate whether the material makes fair use of the copyright.
The judge also noted that it wasn’t any sort of onerous burden to expect the copyright holder to make a fair use determination, since it has to review the content to make sure it’s infringing in the first place:
Undoubtedly, some evaluations of fair use will be more complicated than others. But in the majority of cases, a consideration of fair use prior to issuing a takedown notice will not be so complicated as to jeopardize a copyright owner’s ability to respond rapidly to potential infringements. The DMCA already requires copyright owners to make an initial review of the potentially infringing material prior to sending a takedown notice; indeed, it would be impossible to meet any of the requirements of Section 512(c) without doing so. A consideration of the applicability of the fair use doctrine simply is part of that initial review.
All in all, this is a definite win for supporters of fair use — and a definite loss for those who trot out the “defense, not a right” line. As for the rest of this particular case, though, the judge indicated that the EFF may have a difficult time winning, noting that even if the copyright holder takes fair use into account, the specifics would have to be pretty extreme to then decide that it used “bad faith” in sending the takedown. In other words, the judge is saying that Universal should take fair use into account, but that doesn’t mean that sending the takedown was done in bad faith.
Filed Under: dancing baby, defense, dmca, fair use, prince, right
Companies: eff, universal music
Sometimes The Customer Is Wrong
from the better-customers dept
My friend Jacob Grier weighs in on a story that’s been getting a ton of attention: some guy went into a DC-area coffee shop called Murky Coffee (where Jacob once worked) and asked for an iced espresso. The barista told him that the shop has a policy against making iced espresso. The barista agreed to give the guy an espresso and a cup of ice so he could ice his own espresso, but a shouting match ensued and the customer wound up leaving a dollar tip with a message that’s not printable in a family blog. The owner of Murky’s Coffee responded here.
At first glance, it seems like if the customer wants his espresso poured over ice, that’s what the customer should get. But Jacob makes an interesting point: Murky’s fastidiousness (or pig-headedness, depending on your perspective) about coffee quality is part of what sets it apart from the run-of-the-mill coffee shops. Murky isn’t just selling coffee, they’re also trying to build up a clientele that takes coffee seriously. This reminds me of a great post Don Marti wrote a couple of years ago called “FUD is good for you.” Marti pointed out that while it’s true that Microsoft’s disinformation about free software could actually drive away some potential customers from free software, that’s not necessarily a bad thing. These are, after all, likely to be the least technically-savvy customers, customers who will consume a disproportionate share of tech support resources and unlikely to be repeat customers. In the long run, the company might find it’s actually more successful because some of its customers were scared away by FUD. I think we can see the same kind of attitude at Apple. For example, Steve Jobs took a lot of heat when he unveiled the iMac in 1998 without a floppy drive — one small part of a broader strategy of giving customers what Jobs thought was good for them rather than what they asked for. That attitude has alienated a lot of potential customers over the years, but it has also produced a lot of repeat customers who are more loyal than the customers of any other computer company. In contrast, the PC vendors that have tried to serve every customer have wound up in a brutally competitive market with razor-thin margins.
There are two lessons here. One, not all customers are created equal. To most customers, coffee is all pretty much the same, and one coffee shop is about as good as another. (Just as one all PCs and software stacks are pretty much the same.) But there’s also a minority of customers who pay more attention to quality, and the latter will tend to be a lot more valuable because they’ll be more loyal and more prepared to pay a premium for quality. If it’s true that icing an espresso ruins it (personally I think coffee is all revolting, so I’m agnostic on the question), refusing to serve iced espressos may be a good business strategy; the customers it drives away probably wouldn’t have stuck around for very long anyway. Similarly, Apple’s high-handed approach to its customers seems to have worked fairly well for it. It’s a niche player in the PC market, but it has proven to be an extremely profitable niche. Second, sometimes customers only discover quality after it’s shown to them. It turned out that Jobs was basically right about the floppy drive; I bought an external floppy drive for my iMac but almost never used it. Similarly, Jacob notes that the coffee shop customer seems to have enjoyed the alternative iced beverage that was suggested to him. I doubt that particular customer will be back, but there may be others who develop a taste for the specialty coffee served at Murky and then start to notice the defects of coffee from run-of-the-mill coffee shops. Niche businesses can create loyal customers by guiding them towards more refined tastes, and this can be more rewarding than trying to comply with every whim of every customer.