Tag: Fair Use

It sounds paradoxical, but that’s the argument made by Universal in its defense of an overzealous DMCA takedown notice sent to Stephanie Lenz. That notice was sent to Lenz after she posted a YouTube video of her then-13 month-old son dancing in her kitchen to the barely-intelligible strains of Prince. Give me a minute to walk through the background of what caused Universal to make this twisted argument.

Lenz, represented by EFF, has sued Universal for violating 17 USC 512(f), which penalizes abuses of the DMCA’s notice-and-takedown procedures.

On Monday, Judge Richard Sullivan of the Southern District of New York ruled resoundingly for eBay in its defense against Tiffany’s various claims of trademark infringement. Coming as it does in the wake of eBay’s $63 million loss to Louis Vuitton in France, this decision stands as an unambiguous breath of sanity. It’s great to see that France’s nakedly protectionist, moral rights-influenced, lack-of-first-sale-doctrine decision has been quarantined to France for the time being. As Judge Sullivan affirmed, “The law clearly protects secondary markets in authentic goods.”

The Court detailed the myriad ways in which eBay extended itself in trying to accommodate Tiffany by removing listings featuring counterfeit Tiffany merchandise.

The first Senate hearing I attended struck me as a “dog and pony show” since the witnesses were presented for display purposes, merely echoing the pre-determined opinions of the presiding Senators. I’m beginning to see the animals in a less benign light.

Today, Senator Baucus (D-MT), Chairman of the Senate Finance Committee, held a hearing on “International Enforcement of Intellectual Property Rights and American Competitiveness,” with Ranking Member, Senator Grassley (R-IA), in the wings and with Senators Kyl (R-AZ) and Roberts (R-KS) making cameo appearances towards the end. As for the witnesses, the deck was stacked, as appears to be more the norm than the exception.

Is this video fair use?

You shouldn’t have to have a lawyer to know whether or not a user is fair. The good folks at the American University’s Glushko-Samuelson Intellectual Property Clinic and Center for Social Media have done it again and developed a Code of Best Practices in Fair Use for Online Video. It is a short 16 pages and easy to read, so you have no excuse to go check it out!

In this best practices, the experts go beyond the typical “four factor test”

I’ve been plying my trade as a blogger for quite a while—okay, well, “quite a while” in blog years, anyway. During that time, I’ve learned that the old guard print journalists and their scrappy web counterparts don’t always see eye-to-eye on matters of citation and attribution. On the web, the mantra has always been “share and share alike”: most bloggers generally quote and cite each other freely, returning the favor in the form of a link. This works because the Internet economy runs on page views, which are equally coveted by advertisers, writers and business folks alike. Unfortunately, some content producers with roots in the print world, most notably the large wire services, have failed to understand this unspoken code of conduct. I know that I’m not the only one who has worked for a web publication that received a stern letter from the likes of Reuters or Bloomberg, which essentially said “don’t cite, quote or link to our content”. Sure, this proved to be an inconvenience at times—sometimes the major wire services had exclusive stories that no one else had—but to avoid a legal squabble, the easiest thing to do was to simply stop linking to and quoting from the offended party. After all, if these services want to shoot themselves in the foot, why not simply let them? Here’s why: because rights holders, including the major wire services, do not get to decide what is and isn’t fair use under the law.

George Washington Law School hosted a symposium on June 18 as part of their “Creative Industries in Transition: New Directions for the Digital Era” series. The talk was co-sponsored by BMI and was, therefore, unsurprisingly about the importance of performance rights organizations(PROs), such as BMI and ASCAP, and their place in the digital future.

Representatives from the US, EC, Japan, Switzerland, Australia, New Zealand, S. Korea, Canada, and Mexico have been holding close-to clandestine meetings over the past year to construct a trade agreement that tightens the level of regulations on IP-related goods and services. This proposed pact is called ACTA, the Anti-Counterfeiting Trade Agreement. No official agendas or results of the talks have been released, though a “discussion paper” was leaked to Wikileaks in late May. This discussion paper is the basic extent of the world’s knowledge on ACTA, yet some version of ACTA will apparently be up for adoption at the G8 Summit in July.

If you haven’t read about it, the New York Times reported yesterday that: Microsoft May Build a Copyright Cop Into Every Zune. Essentially, the large content provider would withhold their content from a distributor unless the distributor put in effective measures to prevent against piracy. We’re not talking about DRM here, we’re talking about filtering software, whether it resides on the playback device like a Zune or iPod, or in the software on a syncing computer that stores the consumers’ library of music and movies like the Zune or iTunes software. This software would troll your library checking for content that was somehow infringing or unauthorized. It may even be spyware that could report back to someone about the contents of your media library.

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The House and Senate both introduced new legislation to allow for greater use of so-called “orphan works” — books, music, photos, movies or other works whose owners can’t be found. Why are these bills important? Because there are literally millions of works in existence that are currently under copyright protection but for which the copyright owner cannot be easily found. Because if you use a copyrighted work without permission, you could be on the hook for statutory damages of up to $150,000 per work, orphans go unused.

Think of a diary kept by someone during the second world war and recovered from an attic. Think of a box of old photographs happened upon at a yard sale. Think of an illustration used in an advertisement but not clearly attributed. At the moment, these works are unavailable to publishers, filmmakers, collage artists and many other creative professionals who would like to use them and gladly pay for the privilege, but can’t because of the potential for massive penalties if the original copyright owner does emerge.

The newly introduced bills allow artists to use orphan works as long as that user makes a diligent effort to find the original copyright owner. In the unlikely event that the original owner does emerge, the compensation that a user pays should be reasonable. The two bills currently on the table — S. 2913, the Shawn Bentley Orphan Works Act of 2008 (PDF link) and H.R. 5889: The Orphan Works Act of 2008 (PDF link) — go a long way to address these issues and if passed, would grant the public access to millions of previously inaccessible works of art.

These Bills are being considered in there respective committees this week. We need you to write letters and call your Members of Congress to ask for them to support the bills and make a few tweaks.

NOTE: My original blog post on this topic stated that the Tennessee state legislature was on the verge of passing SB 3974, a copyright industry-supported higher ed filtering bill. As discussed below, SB 3974 has been replaced with a different (and weaker) version. I regret the error.