This week in The Internet Course we will be talking about intellectual property and fair use. There are tensions between the two which have always been there. The internet has exacerbated those tensions.

The US Copyright Office issued a circular on Copyright Basics (PDF) which discusses copyright law in detail. Fair Use is the term given to exemptions to copyright law. The Copyright Office explains these in some detail, but it’s not usually a black and white, cut and dried situation.

Our panel of Internauts this week, Desiree, Sheldon and Josiah, have collected several articles relating to our topic. Josiah’s map puts the Copyright Clause of the US Constitution at the center, which was a nice touch. I find it interesting that the law is there to promote progress, but the enforcement of it is usually to protect profits. The two are not always aligned.

Lawyer Lawrence Lessig gave a TED talk on that mis-alignment:

Lawrence Lessig: Laws that choke creativity

Choking creativity seems to be directly at odds with promoting progress. Lessig founded Creative Commons as a way of dealing with this.

The copyright issue the internet is best known for is probably piracy. GI Joe even addresses it at the top of our syllabus. I wonder how the general public’s view of piracy has changed over the last decade or so. I’d be interested to hear what the class thinks about that.

On a somewhat related note, an article in this weekend’s NY Times noted:

ABC in January started requiring people to verify that they had a cable subscription to watch its shows on Hulu. Users either didn’t have the necessary information or declined to go the extra step, it seems, because the rate of piracy for “Marvel’s Agents of S.H.I.E.L.D.,” a network drama, shot up 300 percent.

Does the fight against piracy, in some ways, end up encouraging it?

Modern Digital Rights Management Methods

(May 2009)

Source Link: https://www.wpi.edu/Pubs/E-project/Available/E-project-051109-135624/unrestricted/modern_DRM_methods.pdf
authors: Ben Anderson and Eric Renzulli

The authors analyze the effectiveness of modern digital rights management methods (DRM). DRM is employed with most digital works in some manner, for instance Google, Amazon, and ITunes limits the number of devices that access the digital content you purchase. It’s important to take a brief look at the legal standing of DRM:

1. Copyright Act of 1976 –
   Offers protection of “original works of content produced on any physical medium” (7). The act provides the basic framework of the current fair use and copyright infringement laws. The act also greatly increased the length of copyright protection from twenty-eight years to a length that would outlive the author’s life.
2. Digital Millennium Copyright Act (1996) –
   The main reason for the act was to update copyright law to current world views and to address the problem of file sharing of digital copyrighted material on the internet.  The main application here to DRM was this act makes it illegal to circumvent copyright protection.

The major industries with historical use of DRM are movies, music, and games. The music industry has tried several DRM based models on their physical medium and on digital music. All of them have failed on a number of points and are a huge inconvenience to consumers. Furthermore, a few companies, which have build significant pull in the online industry of music distribution, such as Apple ITunes have shown the DRM-Free models work perfectly fine and have even allowed them to sell DRM-Free music at a higher premium price. The Game industry also have found that DRM fails to stop consumers from hacking the DRM and releasing their product on the internet without it. The game industry is slowly moving to an internet model for DRM similar to Apple’s ITunes, which is based on restricted download access and is also fairly transparent to the end-user. The Major player in this area is Steam, which provides game downloads secured by DRM based key codes.  The accessibility and transparency of Steam’s DRM has made them very popular for game downloads and the authors predict that they will eventually move in the same direction as Apple: offering DRM free game downloads.

Summary Judgement by New York Circuit Judge  Denny Chin

in case (11/14/2013)

The Authors Guild, Inc., Bett Miles, Joseph Goulden, and Jim Bouton

vs

Google, Inc.

Source link: https://www.eff.org/files/2013/11/14/authors-guild_v_google_fair-use-summary-judgment_copy.pdf

author: Denny Chin, Circuit Court Judge, New York

In 2004, Google started a book scanning project which digitized published works of literature making “snippets” available for viewing through their search engine. The project initially was limited to the volumes contained in the New York Public Library, The Library of Congress, and some university libraries. Google scanned more than twenty million books making them available for search online and provided digital copies to the participating libraries. Google did this without obtaining permission from the owners of the copyrighted works. Judge Chin ruled in favor of Google’s fair use claim and dismissed plaintiff’s motion for partial summary judgment.

The plaintiff’s concern was focused on three key technological points: 1. the works were copied in entirety and stored on several Google servers along with one full digital copy being provided to the library, 2. Google is a for-profit company making money from advertising related to search history. Google obviously enjoys commercial benefit from its Library Project despite not directly placing ads on book searches or selling the digital snippets. 3. The increased availability of popular parts of these books and through repeated searches a large portion of the text diminishes the future marketability of the work.

Google argues (along with the Electronic Frontier Foundation in their Amicus Brief to the court) that the digitizing of books, indexing, and searchable snippets is a direct embodiment of fair use. Google implements security measures to prevent consumers from gaining full access to the digital works. Google argues they have added to the original works by providing a tool to analyze them.

Judge Chin delves into the issue of fair use in more detail explaining how the fair use doctrine from section 107 of the Copyright Act applies to each of the 4 categories and the overall intention of copyright protection, which is “to promote the the progress of science and useful arts.” (16-17):

The fair use of a copyrighted work, … for purposes such as criticism, comment, news reporting, teaching … scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include –

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

Judge Chin argues for Google favor of fair use in item #1. Google Library project transforms static text into a very usable and accessible tool for purpose including but not limited to scholarship and research. Google is benefiting commercially from this project but does not directly monetize the copyrighted work because it does not sell the snippets or place advertisements on the searches. Item #2 hinges on the fact that all the books in Google’s Library Project are published works and Judge Chin again favors fair use here. On item #3, Judge Chin gives a small victory to the plaintiff’s case claiming that Google is copying the full works, which is not in their favor of the fair use argument. Finally, on the last point, Judge Chin discounts the plaintiff’s argument that market potential was negatively impacted citing several sources who claim Google Books “helps readers find their work, thus increasing their audiences.” (25).

In the end, Judge Chin makes a strong argument for Google’s fair use claim on the basis of public benefit coupled with the overwhelming fact that Google Books is transformative turning static works of literature into dynamic digital content that is searchable and index-able on the various individual whims of the users.

3-D Printing Your Way Down The Garden Path:

3-D printers, the copyrightization of patents, and a method for manufactures to avoid the entertainment industry’s fate.

source link: http://jipel.law.nyu.edu/wp-content/uploads/2014/05/2_Storch_3DPrinting_NYUJipel_S14.pdf
author: Joseph Storch, Associate Counsel at State University of New York’s Office of General Counsel.

Joseph Storch who works in State University of New York’s Office of General Counsel delves into the issue of intellectual property protection in the new digital age of the internet in his published work: 3-D Printing Your Way Down The Garden Path. He considers the mistakes made during the Napster-to-ITunes debacle of the recording industry as a concrete example of the sway the internet in changing the perspective of acceptable pricing, social norm, legal framework and finally moral attitude of the industry and consumers.

Intellectual property protection is essential to the sustained creation of original work; however, Storch explains that Article I, Section 8 of the U.S. constitution establishes copyright law with the intent to “advance knowledge for the public interest, not simply protect artists and inventors”. A balance must be maintained between giving content creators time to recoup profit (thereby providing incentive for them and others to continue to produce original work) and providing a benefit to the public (the main agenda of copyright law). Intellectual property is mainly protected through the monopoly held by the original creator. Storch describes three distinct types: technological, legal, and moral.

With the introduction of Napster to the internet by Sean Fanning in 1991 (#1, page 258), the RIAA’s technological monopoly of forcing users to pay premium prices for purchasing physical albums of music died. This spurred a half-decade long war between the music industry and consumers over the fair price and reasonable access to individual songs. The RIAA took drastic steps against individual consumers who illegally downloaded their intellectual property. The most significant step from this tactic was that the RIAA established a price for downloading music. They transformed the moral issue of the illegality of copyright infringement into the simple choice of weighing the cost against the benefit. The majority of music consumers on the internet quickly decided that the statistically unlikely event of getting caught would at most only cost $3000 to $4000 in settlement fines. Storch correctly points out “once lawsuits turned exchange of copyright files over peer-to-peer networks from a moral issue to a market issue, the question was not right or wrong, but simply what is the price?” (#1, page 265)

The force of the internet is strong; as new technology is invented like peer-to-peer file sharing, it’s not a question of should it be allowed but rather how long can you really fight against it? Napster may have died and the Pirate Bay may have been forced to move to the Netherlands but we now have the legal option to purchase music and movies at a fair price in a reasonable way over the internet through ITunes, Google Play, Spotify, Pandora, Netflix, et cetera. A current example of this is Uber’s battle with regulators over if it should be treated as a Taxi provider. Uber has forced 18 states to sidestep the issue by treating Uber in a different classification from Taxis (Uber doesn’t provide rides but rather just provides the interface to arrange rides) (source #2). Storch explained an experiment conducted were a daycare provider established a fee structure for picking up kids late. The experiment showed:

“‘number of occurrences of delay increased steadily in the first 3-4 weeks after the introduction of the fine .. [and] finally settled at a level that was higher, and almost twice as large as the initial one.’ Just as interesting, when the fine was later removed, the incidents of late retrieval did not return to its initial levels, but remained stable at the higher level when the fine was imposed.” (page 267). Storch argues this is because they transitioned the issue from a moral one to a “cost/benefit decision” much in the same way the music industry handled illegal downloading of music.”

In conclusion, Storch feels that the 3-d printing industry will soon face a similar choice as they make their way into residential homes. He makes a strong case against engaging in a legal war with consumers who will quickly start using them to print intellectual property like brand name shoes or auto-parts at home cheaper than they can buy them from the manufactures. Storch points to the alternate solution gained from a historical look at the Napster battle. The 3-D printing industry needs to introduce a pricing model that engages the home user by providing fair reduced pricing for printing their product at home. Lego will likely be forced to make a decision on how to handle 3-D printers sooner than most; however, they already seem to be considering this notion through their online service Lego Digital Designer, which allows users to design their own sets that Lego will manufacture and ship for a fee. If manufactures embrace the technology by providing reasonable priced options to print their products at home, then they can avoid consumers taking things into their own hands. More importantly, as Netflix, ITunes, Google, Pandora, Spotify, and many others have proven, the digital landscape provides a very profitable opportunity to deliver intellectual property to consumers without the need of retailers. And it is very hard to argue the public’s benefit of cost effective 3-D printing on your doorstep, which if you remember was and is the original main intent of U.S. copyright law.

Sources Links:

1. http://jipel.law.nyu.edu/wp-content/uploads/2014/05/NYUJipel_S14.pdf
2. http://www.nytimes.com/2012/12/03/technology/app-maker-uber-hits-regulatory-snarl.html?pagewanted=all&_r=0

The Copyright Clause of the US Constitution gives Congress the power

“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

The legal tradition of copyright goes back a few decades before the Constitution, to Great Britain’s Statute of Anne, officially called “An Act for the Encouragement of Learning…,” from 1710. It is interesting that the original concept was about progress and intellectual growth, yet today it is perceived as being primarily about protecting profits.

There is a tension between the two, and finding the right regulatory balance is difficult. How long should copyright last? How loose or restrictive should regulations be? How should the rules be adapted for evolving technologies? Copying is at the heart of how the web works. Information gets copied from a server to the end user’s computer. But that kind of copying is generally okay – the copyright owner gives tacit permission to do it by putting information online. Sometimes things are put online by people other than the owners, which can be a problem.

These days, I think the balance is out of whack. The internet opens up valuable opportunities for communication, but they are inhibited by regulations. We can share all sorts of information face-to-face, but we’re entering a minefield if we do it in a conversation mediated by the web.

There was a law firm in Las Vegas whose entire business plan was built on suing bloggers who quoted news articles. For many people, the settlement fee was less than the cost of fighting the suits, so the firm made money. Yet what was being shut down was generally discussion of events and editorials rather than copyright infringement. I read of another case where a person was threatened with draconian action based on a stupid mistake made by a bot. It’s less deliberate, but kinda more scary.

Lawyer Lawrence Lessig gave a talk about how the law is out of touch with modern reality. I like the way he lays his argument out. Times change, technology changes, and sometimes that changes culture, and sometimes the rules and regulations don’t quite keep up. About ten years ago EMI threw a fit when The Gray Album came out. Technically it may not pass an official fair use test, but so what? It’s not like anyone would not buy The White Album because of it. Maybe what can and can’t be done with copyrighted works isn’t so black and white.