This week’s favorites post comes from Marietje Schaake, a Member of the EU Parliament, who has been called “Europe’s most wired politician.”

When Mike asked me to write a post about my favorite Techdirt posts of the past week, I was honored. Techdirt is one of the main blogs I read everyday to keep me informed about information law and policy developments. The Techdirt contributors focus on a number of areas of my work. That was the same this week.

ACTA & TPP
I met Mike about a month ago, when I hosted a hearing about ACTA in the European Parliament (EP). Mike was one of 12 speakers who explained the dangers of ACTA, which I consider a misguided agreement, and presented his research ‘The Sky is Rising’. Although several commentators have already declared ACTA to be dead, I still see a lot of lobby efforts trying to get approval. The article, “Time To Realize That The Obama Administration Doesn’t Even Have The Authority To Commit The US To ACTA Or TPP”, also shows the way in which lobbying continues, if not for ACTA, then now for TPP. This post highlights how the ACTA negotiators tried everything possible to circumvent the democratic process. If ACTA doesn’t bind the US, then why would Europe ratify a binding agreement and bend over backwards to get to that point?

There were a few posts about the Trans-Pacific Partnership (TPP). Although this agreement does not concern Europe directly, it will have global ramifications. The lack of transparency sets an undesirable precedent that treaties which are mostly enforcement treaties are increasingly classified as international trade agreements, thereby allowing negotiators to discuss the enforcement measures in secret, without democratic oversight. Rep. Darrell Issa was able to give some insight into the negotiations by posting a leaked version of the agreement online.

Copyright reform
One of the reasons I enjoy reading Techdirt is the realistic outlook on intellectual property rights. We should be critical of industry statistics and figures, which aim to strengthen copyrights further. I am a supporter of rewarding and incentivizing creators of cultural, artistic or literary content. Arts and culture are essential in open societies. A strong culture develops when we can all build on these works and use them for enjoyment, study or invention. The internet offers a great platform for cultural diversity, because it democratizes the cultural process, instead of leaving some gatekeepers in charge to decide which works are mass-marketable. It is also possible to bring content to users at a lower price, as long as there are no disrupting measures in the way.

Artists and inventors are realizing you don’t necessarily need copyright to create works. Crowdfunding through services like Kickstarter (see “Biggest Kickstarter Project Ever Surpasses $10 Million; Cuts Off Funding”) or Sellaband is becoming increasingly popular and leading to many success stories where the production of creative works is pre-funded by fans.

Of course, copyright is a useful tool to monetize created works, but it is not the reason works are made in the first place. However, copyright as it is currently enacted can threaten the open internet. As economist Dean Barker suggests, copyright is an antiquated relic that has no place in the digital age. Bear in mind the principles of the law were developed at the time of the printing press. We live in a different world today, and if we do not reform copyright, it risks losing legitimacy all together.

Copyright has benefited certain monopoly stakeholders since its inception, and those who benefitted are now lobbying fiercely to keep the old laws in place as they protect their business models. The downside is that this is to the detriment of society and the development of the internet. Online enforcement will most likely infringe on internet users’ fundamental rights, as demonstrated by the Pirate Pay Bittorrent disruptor.

What politicians do not hear enough is that there is little relationship between stricter IP laws and innovation or economic growth. European politicians should also take note that spending on entertainment products and services is increasing, such as demonstrated by the record income of European cinemas and the record production of European films. In the end, even the American copyright office will circumvent rules that do not make sense in the real world.

Europe
The Pirate Party is quickly gaining popularity with this message. The party is currently being rewarded by voters in Germany for campaigning for copyright reform, transparency and many other necessary and important political changes, which have been enabled by the internet. My party in the Netherlands (D66) covers these issues well on both the national and the EU levels.

Currently there are many cases relating to copyright and the internet under way in European courts, and almost all raise a significant amount of controversy. Some have even called the judge, who deals with many of the anti-piracy issues in The Netherlands, corrupt. It appears that he and one of the main lawyers of the entertainment industry offer classes together teaching IP enforcement. Although calling this corrupt is a little unfair, I do agree with Mike that there is a conflict of interests here. No wonder this lawyer and his colleagues usually take their anti-piracy cases to the The Hague court.

On the other hand, a Finnish court displayed common sense and understanding of the open internet when it ruled that the owner of a WiFi network is not liable for copyright infringements by other users. It does send a signal however, that this case has been brought to court at all. Was it intended to set a precedent, whereby all European WiFi operators would feel the need to filter traffic?

Domain name seizures and blocking
The Finnish case is an exception to the general trend. For example, the US government seized two Spanish domains. In the current proceedings, the government claims it can “forfeit a domain without showing any crime actually happened. Instead, all they need to do is vaguely assert that someone, somewhere may have possibly violated a law somehow using the domain in the process — but they never have to actually prove anyone violated the specific law.” Mike rightly points out that this reasoning means that any website, including search engines, could be seized, since almost all information exchange online infringes copyright in one way or another.

Blocking and seizing domain names is supported by the movie industry, as shown in this article. According to the MPAA, blocking websites is good for consumers. I disagree strongly with the MPAA on this point and would like to point out that some great online services have been developed which compete very well with websites such as The Pirate Bay. Rights holders (whether artists or corporations) need to figure out how to monetize their works in the new digital environment. Computer nerds at IT companies are currently leading the way. Blocking has great collateral damage, which needs to be taken into consideration as well.

In the European Parliament I serve on the committee for Foreign Affairs. I’m currently drafting the report on Digital Freedom in the EU’s Foreign Policy. The post titled, “If You Meet A Censor, Ask Why They Haven’t Become Moral Degenerates Themselves”, makes a valid point with respect to blocking information which is deemed bad for society. If blocking becomes a mainstream method in the US or EU, it undermines our credibility in speaking to other countries about the way in which they block websites where an undesired (political) message is shared. We risk a slippery slope!

Cyber Security
Are we being attacked and spied upon via ICT networks, and should we increase public finances and resources to combat this threat? I have been trying to find good, independent and verifiable information or research to answer this question. Unfortunately, I have not found it. Most of the numbers and statistics about a security threat are compiled by companies who sell security software. As the post “Fearmongering About Cyberwar And Cybersecurity Is Working: American Public Very, Very Afraid” says, these tactics seem to be working for those companies.

Education
It is great news that Harvard and MIT will be offering courses virtually through EdX. In the committee for Culture & Education of the EP, I have been advocating to extend the European Open Data Strategy to include educational and research institutions. The initiative by the Boston-based American universities is a great step in opening up education for all.

Finally, the piece titled, “Something Is Wrong When A Judge Needs 350 Pages To Decide If A College’s Digital Archives Are Fair Use”, was interesting from several perspectives. First, I consider the fair use doctrine to be better for the digital age than the current, rigid, European system. In this case the judge gives a favorable ruling for uses of works in education, which in my view is right. However, I find it most interesting that the judge rejects the self-regulatory “Classroom Guidelines.” In my work in the EP I have also warned that these types of regulations are often not desirable and can be used to circumvent the democratic process and infringe on fundamental rights.

You can get in touch with me via Twitter (@marietjed66) or via my website: http://www.marietjeschaake.eu

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Techdirt. Marietje Schaake

In discussions about artists like Amanda Palmer using Kickstarter, plenty of people continue to insist that their success was made possible by their traditional industry backgrounds. We’ve already gone over lots of reasons why this is silly, most notably the fact that such artists do a lot of work and certainly don’t coast on anything. But it also usually ignores the artists themselves, who more often than not clearly say that they are going it alone because traditional structures were holding them back. The fact that creators who have received some amount of benefit from labels/studios/publishers decide to move on anyway, and then see their careers grow, doesn’t say less about platforms like Kickstarter, it says even more.

This sentiment is not limited to music, or to independent creators. Kickstarter is getting a lot of attention, and that’s bound to attract bigger and bigger names. The latest, sent in by jtomic, is a feature film called The Canyons which involves some pretty serious Hollywood talent. The script is written by Bret Easton Ellis (author of American Psycho) and directed by Paul Schrader (as in, the guy who wrote Taxi Driver and the screenplay for Raging Bull). Ellis, Schrader and the producer are putting up a bunch of the money themselves and turning to Kickstarter for the rest—all because they want to escape the confines of Hollywood:

The film is a collaborative effort stewarded by former Lionsgate producer Braxton Pope as a response to the changing landscape of the film industry. Pope, Ellis and Schrader are partly financing the film themselves through Pope’s new company Sodium Fox in order to maintain complete creative control of the distinct source material. According to Schrader, “We all experienced the frustrations of financing and institutional censorship. But now, with advances in digital photography and distribution, we can tell a story in the manner we choose. Movies are changing and we’re changing with it.”

They expand on this in the video, which includes some excellent comments from all three creators. Pope talks about how the Hollywood process encourages “groupthink” and makes it hard for a film to stay true to the artists’ vision. Schrader and Ellis both compare the current revolution in film to that of a hundred years ago when the medium was in its infancy, and are clearly excited about the prospect of making a film without notes from meddlesome studio execs.

There are some pretty cool funding tiers too, many of which are unsurprisingly sold out. The cast itself is being largely crowdsourced through an online audition platform, netting undiscovered talent from around the world, and anyone who pledges at least $10 gets to vote on finalists. For $500, Ellis and Pope offered to watch your short film and share their honest reactions (with links) to their followers on Twitter & Facebook (all 10 slots for that one are already sold out). For $1,500 they’ll do the same with a feature-length film. For $5,000, Ellis reviews your novel (again, sold out) or Schrader gives you notes on your script (a few left at time of writing). One lucky backer has already snagged the single $10,000 “De Niro’s Money Package”, which comes with a money clip autographed by Robert De Niro and given to Schrader on the set of Taxi Driver.

So there can be absolutely no doubt that these guys are using their momentum from the traditional Hollywood system to make this project possible—but I’m at a loss as to how that says anything good about Hollywood. I doubt any of these creators had any real need to finance a film themselves, but they saw a growing opportunity to go directly to their fans and make movies the way they really want to make them, and they jumped on it. That’s not coasting on the past—it’s embracing the future.

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Techdirt. Leigh Beadon

Here is Part II of our excerpt from Chapter 1 of Reframing Fair Use by Patricia Aufderheide and Peter Jaszi, which is our May selection for the Techdirt Book Club. You can read Part I here. We’ll have another excerpt soon, and will be scheduling the author chat in the near future.

Fair use was in eclipse for decades, with judges, lawyers, legal scholars, and creators unsure of its

interpretation and convinced of its unreliability. Since the late 1990s, fair use has returned to the

scene, and has become a sturdy tool for a wide range of creators and users. This transformation has

been remarkable; we discuss it in detail in Chapter 5, and provide highlights here.

It happened in part because of changing scholarship. A generation of legal scholars has developed

arguments for fair use as they have analyzed copyright’s effect on cultural expression. At the same

time, cultural studies scholars have showcased the relevance of fair use to their work, which often

involves analyzing popular culture. Teachers and scholars are beginning to take up the fair use

banner, publicly using their rights and encouraging their students to do the same.

Settled, established communities of creators, administrators and users—filmmakers, teachers of

English and visual art, librarians, makers of open course ware, poets, and dance archivists–have

identified fair use as a necessary tool for them to use to achieve their missions. They have turned

to the sturdy tool of consensus interpretation, by making codes of best practices in fair use through

their professional associations.

Members of these communities have become active advocates for fair use. Their organizations and

representatives have appeared before the Copyright Office to testify about the way that the DMCA,

which makes illegal the breaking of encryption on DVDs, limits their ability to employ fair use in

their work.

Remix artists of all kinds, working online, have come to adopt the claim of fair use as an anti-corporate banner. They trade information on fair use in conferences and conventions. When they

receive takedown notices on YouTube, they issue counter-takedown notices and explain why their

uses are fair. Remixers have also gone before the Copyright Office to protest the way that the

DMCA impedes their creations, which are often socially critical.

New businesses have flourished employing fair use, and their trade associations have supported

them. Google, the Consumer Electronics Association, and the Computer and Communications

Industry Association have all advocated for fair use. Legal and professional services for communities

of practice, such as lawyers and web developers, have built their fair use expertise to serve their

clients better.

Think tanks and advocacy organizations have promoted fair use. The Electronic Frontier

Foundation, Public Knowledge, the American Civil Liberties Union, Duke University’s Center for

the Study of the Public Domain and the Stanford Fair Use Project have all taken action on fair use.

Between the scholars, the creators, artists, and organizations, fair use is emerging out of a

twilight existence where, for decades, it had lived. During those decades, many professionals and

especially professionals in the corporate media environment—whether broadcast journalism, cable

documentary, or newspapers—routinely and extensively employed fair use. But if you weren’t a

professional, you might not even have heard of it. That has changed.

The goals of various actors in this resurgence of fair use differ. Some simply want to assert their

rights to be able to improve their work, lower their costs and start or grow new businesses. Some

want to expand the sphere of freedom of expression, so that copyrighted culture does not become

off-limits for new work. Some believe that an expansion of fair use rights is imperative both to keep

fair use as copyright policy is tinkered with, and to maintain the crucial principle of balance between

owners’ rights and the society’s investment in new cultural creation. Some believe that fair use,

exercised to the maximum, will provide concrete experience of the limitations of today’s copyright

law, and point to more effective change. They all share a common understanding that individual and

community action simply to assert their rights has an immediate and long-range effect on markets

and policy.

The resurgence of fair use, the topic of this book, forms part of a much greater discourse in the U.S.

and world-wide, critiquing the most stifling, confining features of copyright practice today. That

discourse is variously called copyright reform, copyfighting, the copyleft, and cultural/creative/intellectual commons, depending on your angle of entry. Some people call it a movement, though

it still lacks evidence of broad social mobilization (as Patrick Burkart has noted for music). The

people in this discourse share an acute awareness that copyright policy and practice are tilted unfairly

toward ownership rights, in a way that prejudices the health and growth of culture. This broader

discourse is evident in many ways, besides the efforts to make fair use more useable: proposals for

formal copyright reform; efforts to create copyright-light or copyright-free zones or to expand the

public domain; and civil disobedience.

Some propose copyright reform to shrink the monopoly claims of owners. Veteran legal scholar

Pamela Samuelson has proposed reconceptualizing copyright law from a blank slate. She imagines a

simpler, shorter copyright law, grounded in principles rather than the “obese Frankenstein monster”

it has become through stakeholder pressure and endless tinkering. Neil Netanel has proposed a

range of tweaks to pull back the extent of copyright protection, such as limiting copyright length

and dropping protection against the preparation of derivative work, so that less licensing is needed.

Lawrence Lessig also has argued for simplifying and minimizing copyright protection for owners.

Some people offer suggestions to improve the efficiency of licensing, which today is messy,

clumsy, and frustrating. Prof. David Lange, for instance, proposed increased use of statutory (or

compulsory) licensing schemes, such those that allow today for the retransmission of TV signals

by cable and satellite systems. Others have suggested new voluntary digital platforms through

which users could make “micro-payments,” tiny payments for each individual access to copyrighted

material offered commercially. Legal scholar William Fisher has proposed a voluntary collective

administration system, akin to those that today enable public performances and broadcasts of

music, and to collect licensing payments through Internet service providers and distribute them

to copyright owners and artists whose material is used online. Some copyright owners, including

the Association of Commercial Stock Images Licensors, are even toying with how to restructure their own

licensing schemes, to eliminate archaisms such as regional rights in a transnational Internet age.

The ideas and projects all respond to the real problem that copyright law now fits ever more poorly

the way people are actually making culture. They may well take some time to become useful, though.

The big stumbling block both to fundamental copyright reform and to licensing reform is that large

copyright holders—key stakeholders in any change in licensing schemes—are not able to agree on

what they would like to do. They do not know what business models will be most relevant in a few

years, so living with a lumbering, archaic licensing system with a lot of holes in it looks better to

them than change that might have unanticipated downsides. As major stakeholders in any legislative

reform, they will stall, derail or rewrite legislation in the same unbalanced direction as today, until

their interests shift with shifting business models. As major actors in licensing, they will collaborate

on new methods of licensing when they understand how emerging business models favor their

interests.

Another part of this broad copyright critique is a range of efforts to expand copyright-free and

copyright-light zones, discussed by David Bollier and James Boyle. People in this arena often

invoke the phrases “the public domain,” “open access,” and “Creative Commons.” Projects such

as open source software (collaboratively created and freely offered software), open source (free

and accessible to all) academic and scientific journals and databases, and OpenCourseWare (freely

available curriculum materials) offer such alternative zones. The various Creative Commons licenses

contribute to this alternative zone by offering a way for creators to give their work away more easily,

although with conditions, by labelling it appropriately.

These efforts have indeed created significant copyright-light zones, as well as creating enormous

enthusiasm for a more flexible copyright policy. They work well for people who want to give their

work away and share it without economic reward. A pool of noncommercial works now exists, but

it is tiny compared with the field of copyrighted and often-commercial work. Viacom and News

Corp will continue to copyright their holdings and treat them as assets. The existence of copyright-

light zones, however large, does not address the frequent need that people have to access mass

commercial culture to make new cultural expression.

Finally, copyright critique is seen in opposition and resistance, such as giddy, open flouting of

copyright law by “culture jammers,” pranksters and appropriation artists. Burkart describes this

work as part of the incipient and still-inchoate cyberliberties social movement, taking up “the politics

of symbolic action,” typically “weapons of the weak.” These people and groups—Negativeland, the

Yes Men, Adbusters magazine and others—position themselves on the margins of official culture,

and see themselves as reclaiming culture one image or gesture at a time. They also see themselves

as challenging the terms of long and strong copyright. Ironically, many times the uses they make of

copyrighted material are actually completely legal fair uses.

This broad and diverse discourse calling for changes in long and strong copyright thus has many

faces and approaches, each with opportunities and limitations. They add up to a broad public

awareness of trouble around long and strong copyright. Within this discourse, efforts to make fair

use more useable stand out because they can be done now, by people in many walks of life; they can

be publicized and celebrated, thus spreading the word; and because using this right expands its range

of uses.

Fair use is not necessarily a popular phrase for all in this broader collection of copyright critics.

Some regard it as hopelessly compromised because of technologies such as encryption, which

override a user’s will to excerpt. Some believe that exemptions such as fair use are good but that

fair use is too murky or unclear to be a helpful exemption. Some believe that fair use partakes too

much of the status quo, and that another copyright-free world is possible. One way that concern

is expressed is to argue that it is too limited a doctrine, and that we need to reach beyond it to

accomplish our goals.

In fact, under the current interpretation, fair use does apply in a wide variety of situations. They

range from making copies of TV programs on our DVRs to creating digitally annotated critical texts

to making an archive of the worst music videos ever to making relevant curriculum digitally available

to students. Fair use has evolved, having different functions at different moments in U.S. history.

Today it has an ever-growing importance and value within copyright, as a primary vehicle to restore

copyright to its constitutional purpose, and the transformativeness standard assists in creating that

value. Fair use is like a muscle; unused, it atrophies and exercise makes it grow. Its future is open;

vigorous exercise will not break fair use.

Fair use will continue to be important, no matter what the success of other aspects of long and

strong copyright protests and proposals. Even if we could wave a magic wand and execute reform

of copyright policy that rolls back some of the longest, strongest terms in copyright policy, fair

use would still be an important tool to free up recent culture for referencing in new work. Even

if licensing were much easier than it is today, it would never address all the needs people have for

use of copyrighted material. Even if copyright-light zones vastly expanded, the need to access the

copyrighted material existing outside those zones without permission or payment would still remain.

Sometimes people need to use materials that the copyright owner simply will not license to them.

Fair use will be important to anyone working in the cultural mainstream. Culture jamming can be

fun, although some culture jammers are actually just employing their fair use rights without knowing

it. But most creators, teachers, learners and sharers of information don’t see themselves as criminals

or pirates, and don’t want to.

Reclaiming fair use plays a particular and powerful role in the broader range of activities that

evidence the poor fit between today’s copyright policy and today’s creative practices. In a

world where the public domain has shrunk drastically, it creates a highly valuable, contextually

defined, “floating” public domain. The assertion of fair use is part of a larger project of reclaiming

the full meaning of copyright policy—not merely protection for owners but the nurturing of

creativity, learning, expression. Asserting fair use rights and defending the rights of others to use

them is a crucial part of constructing saner copyright policy.

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Techdirt. Patricia Aufderheide and Peter Jaszi

Here is Part II of our excerpt from Chapter 1 of Reframing Fair Use by Patricia Aufderheide and Peter Jaszi, which is our May selection for the Techdirt Book Club. You can read Part I here. We’ll have another excerpt soon, and will be scheduling the author chat in the near future.

Fair use was in eclipse for decades, with judges, lawyers, legal scholars, and creators unsure of its

interpretation and convinced of its unreliability. Since the late 1990s, fair use has returned to the

scene, and has become a sturdy tool for a wide range of creators and users. This transformation has

been remarkable; we discuss it in detail in Chapter 5, and provide highlights here.

It happened in part because of changing scholarship. A generation of legal scholars has developed

arguments for fair use as they have analyzed copyright’s effect on cultural expression. At the same

time, cultural studies scholars have showcased the relevance of fair use to their work, which often

involves analyzing popular culture. Teachers and scholars are beginning to take up the fair use

banner, publicly using their rights and encouraging their students to do the same.

Settled, established communities of creators, administrators and users—filmmakers, teachers of

English and visual art, librarians, makers of open course ware, poets, and dance archivists–have

identified fair use as a necessary tool for them to use to achieve their missions. They have turned

to the sturdy tool of consensus interpretation, by making codes of best practices in fair use through

their professional associations.

Members of these communities have become active advocates for fair use. Their organizations and

representatives have appeared before the Copyright Office to testify about the way that the DMCA,

which makes illegal the breaking of encryption on DVDs, limits their ability to employ fair use in

their work.

Remix artists of all kinds, working online, have come to adopt the claim of fair use as an anti-corporate banner. They trade information on fair use in conferences and conventions. When they

receive takedown notices on YouTube, they issue counter-takedown notices and explain why their

uses are fair. Remixers have also gone before the Copyright Office to protest the way that the

DMCA impedes their creations, which are often socially critical.

New businesses have flourished employing fair use, and their trade associations have supported

them. Google, the Consumer Electronics Association, and the Computer and Communications

Industry Association have all advocated for fair use. Legal and professional services for communities

of practice, such as lawyers and web developers, have built their fair use expertise to serve their

clients better.

Think tanks and advocacy organizations have promoted fair use. The Electronic Frontier

Foundation, Public Knowledge, the American Civil Liberties Union, Duke University’s Center for

the Study of the Public Domain and the Stanford Fair Use Project have all taken action on fair use.

Between the scholars, the creators, artists, and organizations, fair use is emerging out of a

twilight existence where, for decades, it had lived. During those decades, many professionals and

especially professionals in the corporate media environment—whether broadcast journalism, cable

documentary, or newspapers—routinely and extensively employed fair use. But if you weren’t a

professional, you might not even have heard of it. That has changed.

The goals of various actors in this resurgence of fair use differ. Some simply want to assert their

rights to be able to improve their work, lower their costs and start or grow new businesses. Some

want to expand the sphere of freedom of expression, so that copyrighted culture does not become

off-limits for new work. Some believe that an expansion of fair use rights is imperative both to keep

fair use as copyright policy is tinkered with, and to maintain the crucial principle of balance between

owners’ rights and the society’s investment in new cultural creation. Some believe that fair use,

exercised to the maximum, will provide concrete experience of the limitations of today’s copyright

law, and point to more effective change. They all share a common understanding that individual and

community action simply to assert their rights has an immediate and long-range effect on markets

and policy.

The resurgence of fair use, the topic of this book, forms part of a much greater discourse in the U.S.

and world-wide, critiquing the most stifling, confining features of copyright practice today. That

discourse is variously called copyright reform, copyfighting, the copyleft, and cultural/creative/intellectual commons, depending on your angle of entry. Some people call it a movement, though

it still lacks evidence of broad social mobilization (as Patrick Burkart has noted for music). The

people in this discourse share an acute awareness that copyright policy and practice are tilted unfairly

toward ownership rights, in a way that prejudices the health and growth of culture. This broader

discourse is evident in many ways, besides the efforts to make fair use more useable: proposals for

formal copyright reform; efforts to create copyright-light or copyright-free zones or to expand the

public domain; and civil disobedience.

Some propose copyright reform to shrink the monopoly claims of owners. Veteran legal scholar

Pamela Samuelson has proposed reconceptualizing copyright law from a blank slate. She imagines a

simpler, shorter copyright law, grounded in principles rather than the “obese Frankenstein monster”

it has become through stakeholder pressure and endless tinkering. Neil Netanel has proposed a

range of tweaks to pull back the extent of copyright protection, such as limiting copyright length

and dropping protection against the preparation of derivative work, so that less licensing is needed.

Lawrence Lessig also has argued for simplifying and minimizing copyright protection for owners.

Some people offer suggestions to improve the efficiency of licensing, which today is messy,

clumsy, and frustrating. Prof. David Lange, for instance, proposed increased use of statutory (or

compulsory) licensing schemes, such those that allow today for the retransmission of TV signals

by cable and satellite systems. Others have suggested new voluntary digital platforms through

which users could make “micro-payments,” tiny payments for each individual access to copyrighted

material offered commercially. Legal scholar William Fisher has proposed a voluntary collective

administration system, akin to those that today enable public performances and broadcasts of

music, and to collect licensing payments through Internet service providers and distribute them

to copyright owners and artists whose material is used online. Some copyright owners, including

the Association of Commercial Stock Images Licensors, are even toying with how to restructure their own

licensing schemes, to eliminate archaisms such as regional rights in a transnational Internet age.

The ideas and projects all respond to the real problem that copyright law now fits ever more poorly

the way people are actually making culture. They may well take some time to become useful, though.

The big stumbling block both to fundamental copyright reform and to licensing reform is that large

copyright holders—key stakeholders in any change in licensing schemes—are not able to agree on

what they would like to do. They do not know what business models will be most relevant in a few

years, so living with a lumbering, archaic licensing system with a lot of holes in it looks better to

them than change that might have unanticipated downsides. As major stakeholders in any legislative

reform, they will stall, derail or rewrite legislation in the same unbalanced direction as today, until

their interests shift with shifting business models. As major actors in licensing, they will collaborate

on new methods of licensing when they understand how emerging business models favor their

interests.

Another part of this broad copyright critique is a range of efforts to expand copyright-free and

copyright-light zones, discussed by David Bollier and James Boyle. People in this arena often

invoke the phrases “the public domain,” “open access,” and “Creative Commons.” Projects such

as open source software (collaboratively created and freely offered software), open source (free

and accessible to all) academic and scientific journals and databases, and OpenCourseWare (freely

available curriculum materials) offer such alternative zones. The various Creative Commons licenses

contribute to this alternative zone by offering a way for creators to give their work away more easily,

although with conditions, by labelling it appropriately.

These efforts have indeed created significant copyright-light zones, as well as creating enormous

enthusiasm for a more flexible copyright policy. They work well for people who want to give their

work away and share it without economic reward. A pool of noncommercial works now exists, but

it is tiny compared with the field of copyrighted and often-commercial work. Viacom and News

Corp will continue to copyright their holdings and treat them as assets. The existence of copyright-

light zones, however large, does not address the frequent need that people have to access mass

commercial culture to make new cultural expression.

Finally, copyright critique is seen in opposition and resistance, such as giddy, open flouting of

copyright law by “culture jammers,” pranksters and appropriation artists. Burkart describes this

work as part of the incipient and still-inchoate cyberliberties social movement, taking up “the politics

of symbolic action,” typically “weapons of the weak.” These people and groups—Negativeland, the

Yes Men, Adbusters magazine and others—position themselves on the margins of official culture,

and see themselves as reclaiming culture one image or gesture at a time. They also see themselves

as challenging the terms of long and strong copyright. Ironically, many times the uses they make of

copyrighted material are actually completely legal fair uses.

This broad and diverse discourse calling for changes in long and strong copyright thus has many

faces and approaches, each with opportunities and limitations. They add up to a broad public

awareness of trouble around long and strong copyright. Within this discourse, efforts to make fair

use more useable stand out because they can be done now, by people in many walks of life; they can

be publicized and celebrated, thus spreading the word; and because using this right expands its range

of uses.

Fair use is not necessarily a popular phrase for all in this broader collection of copyright critics.

Some regard it as hopelessly compromised because of technologies such as encryption, which

override a user’s will to excerpt. Some believe that exemptions such as fair use are good but that

fair use is too murky or unclear to be a helpful exemption. Some believe that fair use partakes too

much of the status quo, and that another copyright-free world is possible. One way that concern

is expressed is to argue that it is too limited a doctrine, and that we need to reach beyond it to

accomplish our goals.

In fact, under the current interpretation, fair use does apply in a wide variety of situations. They

range from making copies of TV programs on our DVRs to creating digitally annotated critical texts

to making an archive of the worst music videos ever to making relevant curriculum digitally available

to students. Fair use has evolved, having different functions at different moments in U.S. history.

Today it has an ever-growing importance and value within copyright, as a primary vehicle to restore

copyright to its constitutional purpose, and the transformativeness standard assists in creating that

value. Fair use is like a muscle; unused, it atrophies and exercise makes it grow. Its future is open;

vigorous exercise will not break fair use.

Fair use will continue to be important, no matter what the success of other aspects of long and

strong copyright protests and proposals. Even if we could wave a magic wand and execute reform

of copyright policy that rolls back some of the longest, strongest terms in copyright policy, fair

use would still be an important tool to free up recent culture for referencing in new work. Even

if licensing were much easier than it is today, it would never address all the needs people have for

use of copyrighted material. Even if copyright-light zones vastly expanded, the need to access the

copyrighted material existing outside those zones without permission or payment would still remain.

Sometimes people need to use materials that the copyright owner simply will not license to them.

Fair use will be important to anyone working in the cultural mainstream. Culture jamming can be

fun, although some culture jammers are actually just employing their fair use rights without knowing

it. But most creators, teachers, learners and sharers of information don’t see themselves as criminals

or pirates, and don’t want to.

Reclaiming fair use plays a particular and powerful role in the broader range of activities that

evidence the poor fit between today’s copyright policy and today’s creative practices. In a

world where the public domain has shrunk drastically, it creates a highly valuable, contextually

defined, “floating” public domain. The assertion of fair use is part of a larger project of reclaiming

the full meaning of copyright policy—not merely protection for owners but the nurturing of

creativity, learning, expression. Asserting fair use rights and defending the rights of others to use

them is a crucial part of constructing saner copyright policy.

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Techdirt. Patricia Aufderheide and Peter Jaszi

When it comes to ACTA and TPP, China is the elephant in the room — or maybe that should be the dragon in the room. For without China’s participation, these treaties designed to reduce counterfeiting will have little effect. And despite rather desperate optimism on the part of some that China will rush to sign up, its comments so far suggest otherwise.

A crucial factor here is China’s own copyright framework, since this will inevitably color its perception of the terms of any treaty that it might sign. That makes the outcome of a planned third revision of its copyright laws highly pertinent to the fate of treaties like ACTA and TPP. A paper reviewing the current proposals, written by Hong Xue, Director of the Institute for Internet Policy & Law at Beijing Normal University, provides some valuable insights into the likely evolution of China’s copyright law. Unfortunately, the signs are not good:

the Draft fails to review several misconceptions, such as “the more the better” (more copyright protection and enforcement, the better economic growth and social development), “one size fits all” and “modeling on US law” (on draconic enforcement rather than general and robust limitations and exceptions). It is unfortunately that China, the largest country by both population and Internet users, despite its fast-growing economy, seems keeping on the old track and missing the opportunities to revamp its Copyright Law in the new century.

In the area of limitations and exceptions, the latest draft makes things worse than today’s rules:

According to the [current] Copyright Law, anyone may use a work for personal study, research and appreciation. The Draft, however, restrict the scope of private use to “making one copy of a work for personal study and research.” It is annoying to exclude from the private use personal “appreciation”, which is inherently hard to distinct from personal study and research, particularly on the Internet. It is even more worrisome to restrict private use to reproduction of a work. Under the Copyright Law, use of a work may include reproduction, translation, adaptation (such as remix or sampling), as far as the use is private. The Draft, however, only allows for reproduction and restricts to one copy.

That’s crazy at a time when more and more people are using digital content in new ways that include precisely these things like remixing, sampling and adapting.

There’s also bad news on the DRM front, which seems closely modeled on the US DMCA:

The biggest defect in this regard is that the Draft fails to address whether technological measures may be circumvented for the specified circumstances of limitations and exceptions to rights. For example, it is unclear under the Draft whether a user may circumvent a copy-protection measure on a work so as to make a single copy of work for personal study or research.

That’s clearly a crucial issue. If circumvention is not allowed, then once again DRM can effectively take away what few rights users are granted in this area.

Finally, China also appears to be following the US in bringing in harsher copyright enforcement and disproportionate damages:

Copyright enforcement is tremendously enhanced under the Draft. Regarding civil remedies, damages could be several times of licensing fees if right holder’s actual loss and infringer’s illegal gains cannot be determined.

All-in-all, it looks like China has learned nothing from the West’s mistakes. Instead, it seems to have taken the misguided view that if the West did it, China must do the same to “catch up”. As the paper quoted above emphasizes, this is only a draft, and can still be modified. But based on what it already contains and the fact that organizing resistance against new laws in China is not the easiest of tasks, it looks increasingly likely that China too will be entering a period of copyright maximalism, with all the negative consequences for the Chinese public — and possibly the world — that this implies.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

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Techdirt. Glyn Moody

The weather is warming up, and backyard barbecues are getting dusted off. What’s easier to grill than a good old hot dog? Absolutely nothing. Here are just a few links to get you in the mood for some delicious dogs.

• The Brits have outdone themselves with a new culinary creation: Pizza Hut UK has created a hot dog stuffed pizza crust. American ingenuity just isn’t what it used to be. [url]
• If you’re really into hot dogs with plentiful toppings, just check out some MLB ballparks. Warning: if you don’t like hot dogs, this is a slideshow of more than 20 hot dogs smothered in condiments that’ll probably make you sick. [url]
• The Physicians Committee for Responsible Medicine is trying to get people to stop eating hot dogs… with scary billboards that suggest hot dogs are deadly. Some of the billboard ads look like parodies of anti-smoking campaigns, so it’s difficult to take them too seriously (though the National Hot Dog & Sausage Council isn’t laughing). [url]
• To discover more food-related links, check out what’s floating around in StumbleUpon. [url]  

By the way, StumbleUpon can also recommend some good Techdirt articles, too.

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Techdirt. Michael Ho

As the mobile phone moves closer to the center of daily life in many parts of the world, combining phone, computer, camera, diary, music player, and much else all in one, it becomes a concentrated store of the digital DNA that defines us — who we talk to, what we search for, who we meet, what we listen to. However convenient that may be for us as users, it’s also extremely dangerous if it falls into the wrong hands.

Unfortunately, in the UK, it looks like London’s police force must now join the list of “wrong hands”:

The Metropolitan Police has implemented a system to extract mobile phone data from suspects held in custody.

The data includes call history, texts and contacts, and the BBC has learned that it will be retained regardless of whether any charges are brought.

If a crime has been committed, there is an argument that extracting the data in this way in order to secure a conviction might be justified if carried out with appropriate authorization. But clearly, keeping all that highly personal data as a matter of course, even if no charges are brought, is a breach of privacy and human rights.

It’s also pretty pointless. After all, anyone who uses their phone for nefarious purposes will make sure that they can render the contents irrevocably inaccessible with just a couple of clicks – apps that let you do this are likely to proliferate in the wake of this latest development. So most of the data gathered by the police will be that of law-abiding citizens, who don’t feel the need to take this precaution.

However, there is an interesting parallel here with the similarly unjustified retention of a suspect’s DNA, even if no charges were brought, that took place routinely in the UK from 2004. The European Court of Human Rights deemed this a breach of Article 8 of the European Convention on Human Rights, which provides a “Right to respect for private and family life”, and the UK government was forced to change its approach. The same logic would seem to apply in the case of the digital DNA held on our mobile phones. Let’s hope the UK police consider this before rolling out their disproportionate plans.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

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Techdirt. Glyn Moody

With the official blockade of access to The Pirate Bay in the UK, combined with the UK Pirate Party’s decision to set up a proxy for users, it appears that the UK Pirate Party’s website is rocketing up the traffic charts. Given the growing success of The Pirate Party in parts of Europe, it makes you wonder if each of these bans isn’t turning into the best (free) advertising The Pirate Party could ever get.

While many people assume that The Pirate Bay and the Pirate Party are connected, they are entirely separate (and the people behind them don’t always agree with or support each other). However, they certainly do agree on a few key points, and when TPB comes under attack under questionable circumstances, the Pirate Parties seem quite willing to step up and help.

It will be interesting, then, to see if the negative reaction to the censorship plan in the UK actually turns into useful action in the polling place. The Pirate Party in the UK isn’t seen as being as strong as elsewhere, but perhaps this situation gives the Party a chance to make itself and its polices more well known and understood in the UK.

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Techdirt. Mike Masnick

I heard about this story last week, but it took a while to sort through all of the details. There were reports out there that the romance author Adele Dubois had been sent a DMCA takedown. Most of the reports were a bit vague, and then the Washington Post had a very confused writeup that bounced back and forth between copyright and trademark, without bothering to mention that you cannot use a DMCA notice for trademark issues (and also pointing much more of a finger at Google than was warranted).

I’ve now been able to see the full DMCA notice (which is not yet up on ChillingEffects, but should be soon — though I’ve included it below) and talk to a few people around this, and it appears that someone associated with Sony did, in fact, issue a DMCA takedown to Google, leading to a blog post by Adele Dubois being taken offline. Google has since reinstated the post, after reviewing the counternotice, so you can read it here, though depending on your workplace, it may be marginally not safe for work (think erotic romance novel graphics and prose).

The DMCA takedown notice details are extremely sparse. It notes that the “copyright owner” is “XL SONY” and that the “Copyright work description” is “ADELE + EXITOS.” It then lists out two URLs. One for “Location of the copyrighted work” and one for “Location of infringing material.” It’s not clear what the difference is here, but the first one takes you to a sales page for a totally different (and unrelated) romance book, whose author runs the blog where the Adele Dubois post was. The author of that book, Marianne Stephens, notes that she holds all the copyright on that particular book, and isn’t clear why it’s in the DMCA notice. The second link (location of infringing material) is the link listed above. The only connection that seems to be made is the fact that the famous singer Adele is on Sony, and the author of the blog post (and the erotic romance novel it talks about) has the pen name Adele Dubois (a name she’s used since well before the singer Adele became a professional singer). Either way, there’s no copyright in just the name Adele. The word Exitos seems totally irrelevant to anything.

Google, as it does in these situations, reverted the blog post to “private,” and then upon reviewing the counternotice turned the blog post back on. It’s not entirely clear from the notice who actually sent the takedown. It’s possible that it was an overaggressive representative of Sony. What does seem clear is that whoever sent it was just doing some sort of quick automated takedown effort without any real review — even though the takedown notice says:

I have a good faith belief that use of the copyrighted materials described above as allegedly infringing is not authorized by the copyright owner, its agent, or the law.

I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

In the Washington Post article, the author suggests that Google should have gotten “to the bottom of this” before taking the content down. While that would be nice, the problem is not so much with Google as with the law itself, the DMCA. Because of the way the DMCA is structured, companies that don’t take down content first and review the details later face significant liability if the content turns out to be infringing. The law basically says, if you want immunity from liability, you have to first pull the content offline. So Google followed that procedure. As we’ve noted, this part of the DMCA potentially violates the First Amendment, but has yet to be tested in court.

That said, you can see why it’s so frustrating to the recipient. It’s not at all clear from the notice that Google’s Blogger passed on to the blog owners the information on who really issued the takedown, or even what, exactly, they were claiming. The bizarre link to the totally unrelated book doesn’t help matters, but only serves to confuse them further. Combine that with the threat that this can lead to a “strike” against an account and you can see why some recipients of notices like this get pretty worried.

In the end, this looks like yet another of an all too common phenomenon (and one we’ve dealt with ourselves). Companies file automated or questionable (or insanely vague) DMCA notices all the time, and the structure of the law encourages companies who receive them to pull the content offline immediately and sort out the mess later.

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Techdirt. Mike Masnick

It’s no secret that Google’s music locker service is struggling, but the company still seems committed to making it a success. To do so, they’ll need to do big things, and break through the barriers that the record industry places in their path. Music columnist Wayne Rosso reports that an unnamed source told him Google is making bold overtures in that direction, and has offered at least one major record label a $1-billion contract for blanket worldwide rights to their entire catalog (thanks to Colin for sending this in). It’s still unconfirmed, but it echos something Glyn wrote last year (which Rosso also refers to) about the possibility of Google or a consortium of internet companies simply buying out the record industry (and noting that Larry Page, Serge Brin and Eric Schmidt could afford to do so with their personal fortunes).

Rosso’s source, however, isn’t exactly sanguine about the idea:

What, one may ask, is Google thinking? “Who knows,” said the source. “It really doesn’t matter because they would screw it up anyway (referring to the fact that Google’s music service has been less than dazzling). Evidently they have a big content group and they have to have something to do to justify their existence.”

So how have the labels responded? “They’re just shrugging and stringing Google along, trying to keep milking cash out of them”, says the source. “They want the money but on the other hand they hate Google. It really sticks in their craw that Google continues to present links to pirated content at the top of their search results.”

I think that, if true, this says something much different. Google is not trying to “justify” anything—they know that there is tremendous opportunity in the field of online music services if only the labels will loosen the reins a bit. And they are willing to bet billions on that belief. The problem with online music offerings is that the people who design them simply don’t think the same way the recording industry does. They want to make cool, useful, engaging services full of both common sense features and innovative ones, deployed on multiple platforms all over the world, fully leveraging the technology that is available—but licensing restrictions interfere with every single step of that process. Design and development are inextricably linked with tedious contract negotiations and the fear of lawsuits. It’s extremely difficult to get a good product as a result—and if you do, the labels clamp down to see where they can extract more money from it. If Google is trying to buy blanket licenses with no restrictions at a high price tag, it’s because they want to escape that cycle. They want a clear and open playing field on which to build services the way they want to build them, without having to beg the labels for permission at every turn. In a market that has only scratched the surface of the economic possibilities of digital music, such a playing field would be well worth the money.

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Techdirt. Leigh Beadon