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Over the past week, much has been written about GoldieBlox's parody of the Beastie Boys song "Girls." For those who haven't heard, GoldieBlox, maker of toy building sets targeted at girls, made a video promoting their product, which went viral (as of this blog post, it has over 8 million views on YouTube). Beastie Boys found out, they cried copyright infringement, and GoldieBlox went to court to ask the court to declare that this use of "Girls" is fair use, and therefore not copyright infringement.
Yesterday we recapped the transition of the phone network thus far and touched on what to expect. Today we discuss the technical trials and what happens next.
For those unfamiliar with the terminology, a “wire center” is the place where all the wires for telecommunications service in a specific area come together. That’s not just all the residential subscribers on the AT&T system. It’s the place where AT&T exchanges traffic with the other providers (such as the local cable operator and whoever offers cell service), the 9-1-1 access point, and the source of “special access” circuits for enterprise customers and other carriers.
The argument about trials has unfortunately broken down largely into two sides. AT&T and its supporters, who want to see AT&T convert a wire center under terms defined by AT&T, and everyone else, who thinks we don’t need trials at all. Public Knowledge supports well constructed trials that actually further the debate. We’ve written at length on our problems with the current AT&T proposal and what we’d like to see in a real set of technical trials.
Federal Communications Commission Chair Tom Wheeler’s blog post announcing his intent to have the FCC issue an Order on the process to transition the phone system in January kicks things into high gear.
I noted previously that Wheeler started out strong, with good opening remarks and a staff prepared to start working immediately on the major issues. But even I was surprised at his recent blog post, announcing his intent to get an Order out on the transition of the phone system by January.
We Pause To Recap Our Story So Far.
For those just joining us, the “Future of the Phone System,” refers to the massive and wide ranging project of phasing out traditional phone technology for Internet protocol (IP) based systems and wireless systems. This sometimes gets called the “PSTN Transition” (PSTN stands for “public switched telephone network,” a fancy way of saying things with phone numbers that use the phone system) or the “IP Transition” (because we are moving the phone system to IP).
This transition has been going on quietly in the background for years. About a year ago, AT&T kicked it up a notch by asking the FCC to “begin a dialog” on how to phase out the old phone technology and to rethink what rules we ought to have for the phone network going forward. AT&T also suggested doing two “technical trials,” by which it meant ‘please let us start playing with this without any regulatory oversight – it’ll be awesome cool!’ This promptly caused a major freak out in telecom land, with folks on one side accusing AT&T of trying to get out of its regulatory responsibilities, rip off consumers, crush competition, etc., and others saying that wholesale elimination of all those pesky legacy rules was just the thing to unleash the engines of innovation, encourage investment, bring us to the dawn of a new golden age, etc.
Google Books decision is much more than a win for Google.
A lot of people have already explained how awesome the Google Books fair use victory is. There's no need to retread that here. But it's worth pointing out how the decision (assuming it survives appeal, which it probably will) could benefit a lot of non-Googles in the future.
The story of the Google Books lawsuit has been going on for years. Its weirdest turn happened a while ago when Public Knowledge, along with many many other nonprofits, academics, libraries, and authors, filed in court to oppose the proposed settlement between Google and the Authors Guild. There were many reasons to oppose the settlement, but the most pertinent is that a settlement would have allowed Google to continue its book-scanning project--which is a good thing!--but that there would be no precedent to allow others, whether other companies, libraries, or nonprofits, to do the same. On top of that, the way the settlement would have been structured, as a bizarre kind of class action settlement between Google and all "authors," would have made it extremely unlikely that any future scanning projects would be able to get the same treatment as Google. This would have competitive implications, because there shouldn't be a legally-enforced monopoly on book search engines. But it would also stunt the development of the law, by preventing a court from issuing just the kind of thoughtful fair use decision that Judge Chin issued last week.
Everyone, but especially copyright reformers, should look to more than fair use to protect legitimate uses of copyrighted works. While fair use is a vital doctrine, it should not be, and never has been, the only way to protect users from spurious claims of infringement.
When there is a contested copyright issue, many legal observers--including copyright reformers--immediately jump to a fair use analysis without first considering whether a use is non-infringing for other reasons. As a friend of fair use, I want to give it the day off once in a while. There are other ways that some uses of copyrighted works are non-infringing besides fair use. This is particularly so in the case of sampling in music.
Fair use, of course, is very important. Judges long ago realized that not every use of a copyrighted work required permission of the copyright owner, even when those uses fell within one of the "exclusive" rights the law gives copyright owners control over. Thus, the common law tradition gave rise to the fair use doctrine, which recognizes that while the rights of copyright owners to control certain uses are broad, they are not unlimited, and cannot be used to limit criticism or commentary, prevent education or transformative uses, and so on. (The test that courts apply is codified in 17 U.S.C. § 107, though the common law is still relevant.) Because of fair use, a user of a copyrighted work might be able to make a reproduction of all or some of it, without permission, even though the law grants copyright holders the right to control reproductions.
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