Category Archives: Law
Difficulties of Copyright
Admittedly this title is a bit of link bait. Most people will click this post thinking I am going to go on a rant of how stupid and difficult copyright law is. But I’m not.
Instead, I’m going to point to an example of why it is important and necessary and that it is difficult because it is very hard to be an artist and make a decent living by selling your works when we live in the age of the internet and easy copying and distribution.
Louis CK is a fantastic comedian. He was wildly popular as a “comedian’s comedian” for a long time during the early 2000s, but is finally getting some big recognition. Check out his early hour long HBO comedy specials, or his FX show “Louie”.
Many don’t know that he actually directs, shoots and edits “Louie” himself. He has explained how he puts it all together on his own mac which lets him express his creativity and keep his budget low or allow him to use it on other things, like a freaking helicopter in the pilot.
Anyway, he recently decided to put out his latest stand up special out on video using his website as the distribution method. And, he is doing so against lots of strong opinions that he is being dumb. See this disclaimer on his own website:
To those who might wish to “torrent” this video: look, I don’t really get the whole “torrent” thing. I don’t know enough about it to judge either way. But I’d just like you to consider this: I made this video extremely easy to use against well-informed advice. I was told that it would be easier to torrent the way I made it, but I chose to do it this way anyway, because I want it to be easy for people to watch and enjoy this video in any way they want without “corporate” restrictions.
Please bear in mind that I am not a company or a corporation. I’m just some guy. I paid for the production and posting of this video with my own money. I would like to be able to post more material to the fans in this way, which makes it cheaper for the buyer and more pleasant for me. So, please help me keep this being a good idea. I can’t stop you from torrenting; all I can do is politely ask you to pay your five little dollars, enjoy the video, and let other people find it in the same way.
Sincerely,
Louis C.K.
Already he is admitting it is almost futile to fight pirates who are going to steal his material. It is rare to see an artist address it so openly. Normally, they want to appear cool to their audience, so they let the distribution arm take the heat of enforcement.
In order to make a living, an artist needs to sell their work. But in order to do that in a digital world, it takes money and requires technology that restricts easy usage. That makes the product cost more.
Louis CK is in a unique position because no one (other than his kids) rely on the profit from this experiment. If it fails there is little risk of big loss. But, when a big media studio makes a film requiring a director, several writers, actors and technical experts like editors to pull together the risks of putting something out without protections are far too great.
I would also argue that people feel worse when it feels like a more direct stealing of a piece of work. When you illegally download this special you are very aware you are taking money from Louie. When you download the latest studio film from some faceless corporation it is far easier to rationalize that no one is getting hurt.
Edit: A few days later and Louie’s experiment seems to have paid off. He has sold many copies. However, I still argue this is an outlier. Giant media corporations couldn’t pull this off, for exactly the reason I articulate in the last paragraph above. And Louie agrees:
Fascinating, wide-ranging group interview with Louis C.K. On piracy and bootlegging:
To steal from someone and not feel bad, you either have to be a sociopath or view the act differently. One way is to remove “Someone” from the equation. You’re not stealing from a person. Big companies do a lot to help people view them as less than human. I heard a speech by Noam Chomsky who said that corporations are like super humans. They cannot be hurt like a human can and they never die. They are not susceptible to scrutiny or accountability. This makes them more profitable. If companies want to enjoy these benefits to some degree they have to live with what else comes with being not human. You miss out on compassion, forgiveness, camaraderie, empathy, trust all kinds of shit.
Copyright Transfer Terminations
Everyone who is even slightly into music is aware that the record industry has a reputation for really being tough on artists. This has changed in recent years, but only because artists have other options for distribution. However, an obscure section of US copyright law is causing waves, and might turn the tables in the relationship between artists and their labels.
Until very recently, record labels often forced very tough contracts on their artists. If they didn’t agree, fine you didn’t get your music out. Part of these contracts was an agreement that the artists would grant the copyright of their recording to the record label. Not just the right to distribute or promotion, but the entire right to the song. They did this in exchange for the right to use the studio, get an advance award of money, etc. The record label would spend a lot of money on the artist to record and promote, so they wanted the profit off of the song. Of course, these contracts were permanent. It wasn’t “you get the right to the song for 10 years”, it was for as long as copyright protects the song. This all meant the record labels were profiting from licensing the song in films, or for other public performances without having to compensate artists.
However, Section 203 of the Copyright Act might change that. Basically, copyright law allows for any permanent transfers of copyright to be cancelled by the artist after 35 years of the transfer has passed. There are some limitations, such as the artist has 5 years to file the claim to re-acquire, and they have to give 2 years notice. Most important though, is the qualifier that this right can’t be sold away in a contract. This means the record labels can’t claim their all-encompassing contracts probably doesn’t include the right of termination.
There is one more limitation that the record labels are grasping on to. “Works made for hire” don’t qualify. Works for hire would be songs made by an “employee”. The question of course, is whether these musicians are employees. The labels are going to argue that they gave the artists money and instructed them to record. The artists will counter that they were just given studio time and decided to assign their songs to the labels. It will be up to the courts to decide.
Does this affect you personally? Unless you recorded music in the 70s, probably not. However, record labels are already hurting. The industry would really be shaken up if they stop collecting royalties on old songs that get played. It will be interesting to see how this plays out.
PROTECT IP Act
The new version of COICA was unveiled today. This is a big overhaul of IP protections in the United States. A lot of analysis will come out in the next few days, but if you want to see the bill yourself you can read the announcement and summary here. If you want to read the actual text of the bill you can also see that here.
Some of the key protections:
The PROTECT IP Act will provide law enforcement with important tools to stop websites dedicated to online piracy and the sale of counterfeit goods, which range from new movie and music releases, to pharmaceuticals and consumer products. Key updates to the PROTECT IP Act include:
- A narrower definition of an Internet site “dedicated to infringing activities”;
- Authorization for the Attorney General to serve an issued court order on a search engine, in addition to payment processors, advertising networks and Internet service providers;
- Authorization for both the Attorney General and rights holders to bring actions against online infringers operating an internet site or domain where the site is “dedicated to infringing activities,” but with remedies limited to eliminating the financial viability of the site, not blocking access;
- Requirement of plaintiffs to attempt to bring an action against the owner or registrant of the domain name used to access an Internet site “dedicated to infringing activities” before bringing an action against the domain name itself;
- Protection for domain name registries, registrars, search engines, payment processors, and advertising networks from damages resulting from their voluntary action against an Internet site “dedicated to infringing activities,” where that site also “endangers the public health,” by offering controlled or non-controlled prescription medication.
Apple v Samsung
Apple is suing Samsung for various IP infringements. Basically they say Samsung’s android phones are too similar to the iPhone. Similar enough to look like they are probably confusing consumers.
If you want to read a great breakdown of the suit, Nilay Patel has a pretty thorough overview at This Is My Next.
Email Disclaimers Probably Pointless
I’m sure you’ve gotten one of those emails where the actual body of the email is maybe a two word response, e.g., “go ahead” but following the signature is a short novel of a disclaimer.
Most companies encourage their employees to add these signatures to the end of emails. The Economist published an opinion article that all of these wasted pixels are just that- a waste. They point out that there is no legal basis for mandating the use of the disclaimers.
They are mostly, legally speaking, pointless. Lawyers and experts on internet policy say no court case has ever turned on the presence or absence of such an automatic e-mail footer in America, the most litigious of rich countries.
Many disclaimers are, in effect, seeking to impose a contractual obligation unilaterally, and thus are probably unenforceable. And a footer stating that nothing in the e-mail should be used to break the law would be of no protection to a lawyer or financial adviser sending a message that did suggest something illegal.
I wonder how many billable hours attorneys have billed to create these useless paragraphs for companies? I also would point out that just because there has been no court case that indicates the importance of the disclaimer doesn’t mean they aren’t important.
YouTube Copyright School
YouTube has created a video to educate users who are uploading videos that violate copyright laws. Interesting take on teaching the finer points of IP law.
Twitter, Attribution and Copyright
In Copyright law, two of the rights the owner of the copyright has are the right of distribution and the right of public display. (Copyright term definitions thanks to http://www.bitlaw.com/copyright/scope.html)
The distribution right grants to the copyright holder the exclusive right to make a work available to the public by sale, rental, lease, or lending. This right allows the copyright holder to prevent the distribution of unauthorized copies of a work. In addition, the right allows the copyright holder to control the first distribution of a particular authorized copy.
The public display right controls the public “display” of a work. This right is limited to the following types of works:
- literary works;
- musical works;
- dramatic works;
- choreographic works;
- pantomimes;
- pictorial works;
- graphical works;
- sculptural works; and
- stills (individual images) from motion pictures and other audio visual works.
On twitter, the popular microblogging site, there is the concept of the “retweet“. This is when you post exactly what someone else said to your twitter stream. I think you could potentially make the argument that this violates both of the rights I listed above. You are now distributing someone else’s creative work (I take for granted that you believe a tweet is an original creative work, which could be argued itself) without their permission. I can do nothing to stop you.
Now you copyright nerds will probably think, “wait, what about first sale doctrine?”.
The distribution right is limited by the “first sale doctrine”, which states that after the first sale or distribution of a copy, the copyright holder can no longer control what happens to that copy. Thus, after a book has been purchased at a book store (the first sale of a copy), the copyright holder has no say over how that copy is further distributed. Thus, the book could be rented or resold without the permission of the copyright holder.
However, I would point out that nothing is “sold” on twitter. The point of IP law is that we want to benefit the creator through compensation, in order to encourage them to create. Here, the tweeter has not yet profited. You could probably say he profits by the retweet, but I might counter that he would rather gain a follower than have you simply retweet his work for others to see. One could envision a twitter account that does nothing but retweets another account.
Another argument could be that Twitter is a free service, and users know what they do when they send things out into the universe on it. Going further, there is almost definitely a clause in the User Agreement that anything you post is the property of twitters, and not yours. Therefore anyone can retweet it with Twitter’s permission.
That is fine, and I grant that admission. However, my point here is that Twitter is indicative of most people’s understanding of copyright on the internet. Most people don’t realize people don’t generally have the right to distribute another’s work. Instead, most people believe that as long as you attribute something, like you do in a retweet, or on the popular tumblr site by “re-blog”ing something it makes it legal. This is simply not true. But, in this current generation it is almost like a de facto license to use the work, what I would call “attribution licensing”. It makes it ok to use a work, even though you have no permission from the artist.
How will this shape copyright understanding in the future? I believe generations who grow up with the internet will have vastly different understanding of “owning” the rights to a photo or written work than those who grew up before it. The question is whether it will affect legislation and lead to actual statutory changes to reflect societal understandings.
Would that be detrimental to artists? Would we get fewer works, or would they simply not post them via online tools? Or, are the benefits of the “attribution” and attention from that enough to warrant use of the social media? I’m waiting for the first large scale false attribution where something is widely spread as attributed to someone who didn’t create it. Then we will see how people react to attribution as licensing.
The serious side of gaming
Listened to a really interesting podcast that discusses the legal issues of video game creation. They discuss issues from negotiating with the major platforms to who owns user created content in these massive online worlds that are popular now. If you are a video game nerd, and IP nerd, or just a nerd (or not!) Give it a good listen.
