Category Archives: Copyright

Wikipedia leverages user-generated content for its own politics

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Information wants to be free… (so the Web gospel reads)

Wikipedia apparently has entered the political arena, closing the site for one day to protest the SOPA bill.

What’s interesting to me is the notion that the knowledge collected by Wikipedia, freely given by volunteers spending untold hours contributing to the site, can be leveraged by the site’s owners to support their own politics.

I don’t know that that meets the approval of the many, varied unpaid writers that contribute freely to Wikipedia or so-called crowdsource or “open source” platforms.

In an article titled The importance of Wikipedia published Nov 30, 2011 on opensource.com, Susan Hewitt, a 63-year old contributor to Wikipedia says

“Wikipedia is self-organizing and self-correcting,”. “There is no boss and police force, yet at this point in its development it’s perfectly clear that it works really well.” Wikipedia calls to the better angels of people’s nature, and those angels respond.

No police force, but apparently a higher power.

It’s the downside of the concept of a free web. The truth is there are powers behind the free web and they can use their power when it suits them. Now it’s free, now it’s not. Who decides? Well, we saw this week who decides.

Interestingly, a paid product, Encyclopedia Britannica, for instance, could not be so leveraged. Once you purchase it, it is yours. It can’t be removed from your home by the publishers because they don’t agree with your politics. Is that what we pay for? Ownership? Control? Privacy? Autonomy?

http://en.wikipedia.org/wiki/Hubris

Charlie Crist Apologizes to David Byrne for Copyright Infringement

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Charlie Crist has issued a formal apology for using the Talking Heads’ song “Road to Nowhere” in his 2010 campaign for governor of Florida.

Byrne sued Crist for 1 million dollars after Crist’s campaign used the song illegally. Byrne and Crist settled out of court. This video apology by Crist was probably part of the settlement.

Crist lost his election bid. During the campaign, he left the Republican party to run as an independent after a strong push from Tea Party-backed candidate Marco Rubio. Rubio went on to win the election.

Road to Nowhere was released on Talking Heads 1985 album Little Creatures.

Copyright: The Basics

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I’m happy to share this article about copyright written by Sarah Kolb. Sarah and her company, Click Industries, has helped thousands of small business owners, independent entrepreneurs, artists, musicians, and writers start new businesses, protect their intellectual property and find new ways to market and promote their business and creative works.

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Copyright: The Basics

When you create a new work, you own the copyright to that work. It happens automatically; you don’t have to do anything other than create an original work. Of course, this abstract idea looks great on paper, but the obvious problem is that who created a work is essentially one person’s claim against another.

Why should I copyright my work?

The fact that you’ve created a work doesn’t necessarily mean that you’re able to prove you’ve created the work — and if you’re not able to prove in a court of law that you created something, you’re not going to be able to sue someone for using it without your permission.

This is where registering a copyright comes in. It’s the only way to legally prove your authorship. You may have heard of the “poor man’s copyright” — the act of mailing a copy of the work to yourself, keeping the package unopened and the postmark intact — but as there is no language to support this, it simply is not a legal defense. Better to copyright your work, allowing no room for argument.

What types of works are eligible for copyright protection?

Any work of original authorship (meaning that it is not an exact copy of another work) that has been fixed in a tangible medium (either physically or digitally; in other words, it is a thing and not just an idea) can be copyrighted. Examples include:

Photographs
Paintings
Compositions
Poetry
Books
Sound Recordings
Audio/Visual Recordings
Software
Computer programs
Not all types of works can be protected by a copyright. Examples of works not eligible for this type of protection include:

Blank forms (graph paper, scorecards, address books, etc.)
Public knowledge (height and weight charts, tape measures, anything taken from common sources)
Ideas
Names
Titles
Short Phrases
Logos (unless there is enough original authorship to warrant protection as two-dimensional artwork; simply setting a name or title in a specific font or giving the letters some sort of artistic treatment does not contain enough original authorship to qualify)
However, you may be able to protect types of intellectual property not eligible for copyright protection in another way, such as with a trademark or a patent. It’s best to discuss this with your legal advisor, if you’re uncertain which type of protection is best for your work.

Can I Protect My Unpublished Work With A Copyright?

Absolutely. Publication was once a requirement, but the current Copyright Act no longer requires that a work be published to receive protection.

Incidentally, recent versions of the Copyright Act have removed one other previous requirement: that the copyright notice and symbol be present on the work. While a good idea to deter would-be copyright infringers, the copyright notice is no longer required to be placed on the work, even if that work is published. Ignorance of a work’s copyright protection is not a legal excuse to violate that protection.

Sarah Kolb, http://www.clickandcopyright.com.

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Since 2000, Click Industries, Ltd. has helped thousands of small business owners, independent entrepreneurs, artists, musicians, and writers start new businesses, protect their intellectual property and find new ways to market and promote their business and creative works. Our copyrighting division, Click and Copyright, offers copyright filing services for creative professionals.
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Independent Filmmaker fights online piracy

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I have noticed recently that, when one reads the comments from folks who participate in online piracy, their language is often filled with a kind of virtuous, take-from-the-rich Robin Hood-ism, where piracy is actually seen as the moral high-ground. Pirates are merely taking from overly rich global corporations that, in the case of music at least, are exploiting their artists anyway. The premise seems to be that piracy is good because it is fighting the good fight against fat, capitalist, power-brokers who are out there bilking the consumer.

Though this position is, I’m sure, both convenient and beneficial, it is also incorrect, as the following account of an independent filmmaker’s piracy travails will show.

Filmmaker Ellen Seidler and her partner poured $250,000 into their independent film, And Then Came Lola. The movie saw a good deal of success early on. Unfortunately, much of that success was achieved by content thieves.

Within 24 hours of the release of the DVD of “And Then Came Lola,” digital pirates had ripped the DVD and uploaded it to an internet distribution site where it was distributed for free download. Supported largely by AdSense ads, the site immediately began earning money off the movie.

Despite the fact that Google has a very strict policy against copyright infringement, they also apparently have an unwritten see no evil, hear no evil policy as Google’s AdSense ads are a recurring theme on sites that are pirating music and movies. Google claims that they cannot possibly root out every site that’s pirating copyrighted material and shut down their AdSense ads. Still, the frequency with which AdSense appears on sites completely dedicated to piracy, indicates that Google gives a cursory initial glance at a site before authorizing the site for AdSense and then never looks back.

And, Google isn’t the only advertiser that turns a blind eye to piracy issues. A number of major corporations (Walmart) continue to allow their ads to run on pirate sites.

So, Ellen decided to take matters into her own hands. She started filing take-down notices with every site she could find that was illegally distributing “And Then Came Lola.” Unfortunately, the task quickly became an overwhelming one.

Thousands of cyber lockers already offered her film for free download. Many of the sites have simply ignored her take-down requests. Several have complied with the take-down requests as they are afraid of having their entire site shut down (see End of 2010 sees crackdown on copyright infringement and online piracy), but many just don’t seem to care.

Add to this the fact that for every download link Ellen has disabled several more pop up. So, it seems that most of Ellen’s requests simply sail across the bow of pirate sites and fall harmlessly into the water.

In the end, Ellen (and all independent filmmakers) will need someone with some economic muscle to gather their navy and set sail against the digital pirates of the world. It doesn’t appear that will happen soon (read more on NPR or hear the story directly from Ellen), but independent filmmakers like Ellen Seidler have little choice other than to remain hopeful.

Ensuring Copyright Compliance the Easy Way

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Here’s two online videos that describe copyright and how to re-use content in a legal manner. Though the videos deal mostly with using printed materials, they are good as a guide for using music as well.

The videos were produced by the Copyright Clearance Center.

Copyright Clearance Center (CCC) is a global rights broker for millions of the world’s most sought after materials, including in- and out-of-print books, journals, newspapers, magazines, images, blogs, ebooks and more.

CCC’s six minute Copyright Basics video is a great way to get an overview of copyright. It covers everything from the origins and reasons for copyright laws to what is not protected under copyright laws.

The second video gives more specifics on how copyright laws can be inadvertently violated in your workplace. Watch CCC’s video Copyright @ Work. This video introduces you to the typical ways employees unintentionally (or intentionally) ignore copyright laws in the workplace and how you can easily resolve the problem to ensure you and your employees are within the law.

About the Copyright Clearance Center
Copyright holders simply enroll at Rights Central and they’re ready to earn royalties on the creative content for which they have copyrights. CCC makes the content easily searchable and then sends the copyright holder a single check for all royalties on all content the holder has in the CCC system. This saves companies from managing hundreds or thousands of royalty checks and working out details with hundreds or thousands of people who wish to use their content. Musicians will recognize this organization as similar to Performance Rights Organizations (PROs) ASCAP, BMI, SESAC

On the content user’s side, CCC eliminates the hassle of contacting copyright holders and waiting days, weeks, or even months for a reply that authorizes use of copyrighted content. Too often even people who are aware of copyright laws ignore them because getting permission is extremely time consuming.

With CCC, businesses or educational institutions can simply pay an annual fee that gives them authorization to use anything in the CCC database. No longer do you have to wait weeks for a response and pay out numerous checks to get authorization to use copyrighted material. With CCC you can pay once and help yourself to copyrighted materials all year long.

Can you copyright your name and face?

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That’s the question behind a class-action lawsuit aimed at video game publisher Electronic Arts. Sam Keller, a former quarterback at Arizona State, is bringing the case claiming that Electronic Arts profited from the use of his image and the images of other college athletes in their NCAA Football and NCAA Basketball video games. Amateur rules prevent the use of athletes’ names in commercial products but the games have the same team colors, team numbers, body-types and even athletic moves of the actual college athletes.

The case if blowing up beyond the right to use images of college athletes in video games. A ruling in the case could set a First Amendment precedent defining when a person’s right to control his image trumps the free-speech rights of others to use it.

An early attempt by Electronic Arts to have the case thrown out was rejected by US District Court Judge Claudia A Wilken. Judge Wilken argued that Electronic Arts did not sufficiently “transform” the images into a work that would qualify as free speech.

Major media companies, The Motion Picture Association of America, the Gannett Company, ESPN, Viacom, are lining up in support of Electronic Arts.

Keller has support from significant organizations too including the players unions for professional baseball, basketball, football, hockey and soccer. Each has filed a brief supporting Keller. Keller also has the support of the Screen Actors Guild, the AFL-CIO, and the American Federation of Television and Radio Artists.

Nathan Siegal, who represents the media companies has said…

Treating the right of publicity as if it were a copyright – as if you could copyright your name and face – goes too far, and it would give people too much power to control the First Amendment speech of others

Representatives for the athletes and other famous figures say Electronic Arts has gone too far. Duncan Crabtree-Ireland, the general counsel of the Screen Actors Guild said

The real life consequence would be that anybody making anything other than a television commercial or a print ad – what is very clearly commercial speech – would essentially have the right to use people’s names and likenesses in those projects without any consultation.

Some scholars believe this case could eventually land in the US Supreme Court.

The Tricky Task of Defining “Fair Use” in an electronic world

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Almost every copyright infringement dispute regarding the Internet and electronic media comes down to the tricky task of defining what is Fair Use.

The Fair Use provision of US Copyright law was meant to ease the ways in which copyrighted material could be used to facilitate research. Teachers could reproduce portions of copyrighted material to illustrate a lesson, news reporters and broadcasters would not have to worry if copyrighted material was used incidentally during a news report.

This definition was crafted before the Internet was even a speck on the horizon. At that time using copyrighted material posed a bit of a challenge but in today’s world, where copyright infringement is a right-click away, Fair Use has blown up into a political issue with lobbyists now attempting to stretch the initial intent of the law to fit in digital world.

So far, determining how to apply Fair Use to the Internet and electronic media has proven to be a complex task for the courts. In the mammoth Google/YouTube v. Viacom copyright infringement case, the final decision of the court revolved around an interpretation of the Digital Millennium Copyright Act (DMCA), which addresses the liability of the online service provider, while dancing around the proverbial elephant in the room…the definition of Fair Use.

Cory Doctorow has an interesting post in which he discusses a very concise definition of Fair Use put forth by Tim Wu. Wu’s proposed definition of Fair Use is as follows:

If it adds new value, it’s Fair Use. If it substitutes for the original, it’s infringement.

It’s simple enough, to be sure, but it’s far more favorable to the users of content than it is to the creators of that content. It tracks along the lines of the ideas in Lawrence Lessig’s book Remix which argues that creative content should become something freely available to all for the benefit of moving the culture forward (how did our culture ever move forward before Lessig?). With Remix Culture, content can be used and turned into something else without the permission or remuneration of the original creator. Take a Beatles song, put some new beats on it and viola, you’re a composer.

Lobbyists now talk of the Fair Use Industries and a Fair Use Economy. I would ask – Fair Use Economy vs. what? The Copyright Economy? There is some heavyweight positioning going on trying to broaden the interpretation of Fair Use. To me this is almost always being done to restrict or remove the existing rights of content creators.

To see how the digital world can quickly skew the concept of Fair Use, one need only look at homemade videos uploaded to YouTube. Here you have a non-commercial, family video that uses a popular song as a soundtrack (obvious fair use). But then it gets uploaded to YouTube and becomes site content. Fair Use? It’s now an issue of interpretation. Is the content still Fair Use because the user created the content for private use, or does it infringe on copyright because that content is now an asset of YouTube, a money-making enterprise.

Yes, things get murky in an electronic world. Here’s my understanding of copyright and Fair Use. It’s also a simple definition but it’s one that is being rigorously challenged.

If the content in question is not original to your project (not created by you/in-house or work-for-hire) and its usage is contributing to a commercial enterprise then it is not fair use and the media should be legally licensed.

Don’t ignore copyright infringement

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Just pointing out a great article by Patrick Ross at copyrightalliance.org that argues against the prevailing current of opinion that “Copyright owners should accept infringement as a reality and pursue other paths for compensation”

The article is titled Infringement is Real, Ignoring it is Unreal

Here’s a brief quote…

But it’s disingenuous to argue as even some academics such as Fisher, Lessig and Palfrey do that just because some people infringe, those being infringed should just give up their rights and hope for the best.

Copyright, Fair Use and the Internet

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This fine article from Forbes.com describes the current cloud surrounding interpretations of legal doctrine of Fair Use.  The Fair Use doctrine is a part of USA  Copyright law that describes the conditions that have to be in place when using copyrighted material without permission from the creators.

Digitization and the Internet have blown the issue of what is and what is not “Fair Use” up beyond anyone’s imagination.  When the concept was originally set as part of copyright law, Fair Use was to

  1. facilitate the quotation of excerpts in a review or criticism for purposes of illustration or comment
  2. allow for the reproduction by a teacher or student of a small part of a work to illustrate a lesson;
  3. allow the reproduction of a work in legislative or judicial proceedings or reports;
  4. to allow the incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.

The Forbes.com article, written by Dan Fisher and Dirk Smillie makes these important points…

The real problem? Copyright laws never anticipated a time when people would be able to broadcast essentially private content all over the world, including scraps of copyrighted material.

Yet for all its importance, [Fair Use] remains a tricky concept courts determine on an agonizing case-by-case basis–making it difficult to determine whether the Next Big Thing on the Web is providing a valuable public service or violating copyright law on a wholesale basis. Judges must consider the nature of the work that has been copied, how much of it has been copied, and whether the copying hurt the ability of the content owner to make money off of it.

Today’s tug-of-war is mainly between Internet content providers, who use the doctrine of Fair Use as the rational behind posting copyrighted material without permission and content creators who believe that some content web sites are infringing on their copyrights and thus their right to earn money from their creations.

In the end, it’s about money. You have web content providers using Fair Use to enhance their business model on one hand and on the other, you have the content creators who feel that today Fair Use is being used to take money away from them.

The many angles of Fair Use in copyright

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A recent article in the New York Times draws into focus the many differing interpretations and perspectives surrounding copyright law’s doctrine of Fair Use.

The article describes how three separate parties, a young musician, Google’s YouTube service and the Warner Music Group, became entangled over the use of the Christmas classic “Winter Wonderland”

The musician, Juliet Weybret, uploaded a video to YouTube that showed her performing the song. A few weeks later she was informed by YouTube that the video was being taken down because of objections by the Warner Music Group.  Warner Music Group owns the copyright for Winter Wonderland and currently has no licensing agreement in place with Google.

Ms Weybret rightly felt that she was using the song in a noncommercial way and therefore was within the tenets of fair use. She was not gaining financially in any way by performing the song. It was basically a home video that she put on YouTube. The performance is not a money making venture, it doesn’t compete or impede Warner Music Group from earning income from the song. If you look at the performance itself, it is certainly fair use and does not infringe on the copyright in any way. 

Warner Music Group, no doubt, feels the same way about the performance.  However, when that performance is uploaded to YouTube and becomes part of the content of a multi-million dollar enterprise, then the notion of the performance (the video) as fair use is challenged. In Warner’s view, the video now contributes to the income YouTube makes from showing videos on the web.  The use of the video by Google/YouTube is therefore not fair use.  

Use of third party copyrights without permission has dogged YouTube since it became a major Internet presence.  The company initially relied on Fair Use as well as the safe harbor provision of the DMCA as an argument for not removing video content.  That decision created a substantial amount of push-back from copyright holders and a slew of lawsuits followed. Google now has a very high-tech filtering system that will automatically remove videos that use unlicensed content from YouTube.  

From the NY Times article…

Referring to Ms. Weybret, Ben Sheffner, a copyright lawyer in Los Angeles who has worked on antipiracy at the 20th Century Fox movie studio, said, “From her persepctive it’s completely noncommercial because she’s not making a dime. But from another perspective it’s entirely commercial because Google is trying to make money off it”