[T]he EFF has just filed suit against the US government on the grounds that the Digital Millennium Copyright Act’s anti-circumvention provision, Section 1201, represents an unconstitutional restraint on free speech.
The suit takes aim at the practice of outlawing breaking DRM, with the Librarian of Congress permitted to make exceptions to the prohibition every three years, as well as outlawing any explanation of how to break DRM. The EFF calls this “an unconstitutional speech-licensing regime.”
“The government cannot broadly ban protected speech and then grant a government official excessive discretion to pick what speech will be permitted, particularly when the rulemaking process is so onerous,” said [EFF Staff Attorney Kit] Walsh. “If future generations are going to be able to understand and control their own machines, and to participate fully in making rather than simply consuming culture, Section 1201 has to go.”
The EFF is representing plaintiffs computer scientist Andrew “bunnie” Huang and computer security researcher Matthew Green. Huang is developing devices for editing digital video streams for his company Alphamax LLC that require the ability to break DRM in order to function properly. (Huang has previously shown up on TeleRead in connection with an open laptop he designed and successfully crowdfunded, so he’s not exactly new to advocating for open hardware.) Green is writing a book on circumventing security systems, and is investigating the security of medical record systems on a grant from the National Science Foundation—but he has had to avoid some areas of research because of concerns over Section 1201.
This is also, of course, the law that makes it illegal to crack DRM on ebooks so we can back up our purchases and convert from Kindle to ePub formats, or vice versa, or crack the DRM on DVDs or Blu-rays so we can rip the movies for mobile viewing.
PG does not condone the pirating of copyrighted materials, including books.
However, the anti-circumvention provisions of the Digital Millennium Copyright Act were mostly written by and for the big US movie studios and record companies (yes, PG is informed they’re still called record companies). The DMCA didn’t do much for indie authors.
PG believes that a reader who wants to read ebooks that were properly purchased on that reader’s iPad as well as his/her Kindle should be legally permitted to do so. Software or services that make this possible should be legal.
Of course, some people will use such software for illegal purposes. Some people will also use baseball bats for committing crimes, not playing baseball.
PG suggests that focusing on the prosecution of criminals who are performing acts which harm creators is a much better idea than writing laws which prohibit non-criminals from doing useful work that doesn’t damage the owners of copyrights in any way.
In theory, the idea of a small claims board that could adjudicate copyrights claims where the monetary value is not too high seems sensible. Federal litigation is very expensive and intimidating, so a small claims mechanism could make it easier for independent artists and small businesses to defend their rights.
Nevertheless, I have never been very enthusiastic about the idea, in large part because the devil is definitely in the details of any proposed scheme. The fear is that a small claims board could become, in the words of this 2012 article about the topic from Techdirt, just “a new venue for porn companies to coerce settlements out of internet subscribers.” If such a board appeared to be nothing other than a mechanism to make it easier not just for trolls but for Big Content in general to bully individual users and avoid the high costs of litigation, it would ultimately be harmful to the copyright balance that is already so out of whack in the U.S.
Unfortunately, when I look at the CASE Act (H.R. 5757) (it stands for “Copyright Alternative in Small Claims Enforcement Act) introduced last week to the House of Representatives, many of these fears seem realized. Based on the actual text of the proposed legislation, I am afraid this specific bill would have two negative impacts. First, I fear it would greatly increase the power of the Copyright Office in shaping copyright enforcement, which is not something I can contemplate with anything other than foreboding. Second, I think that the proposed legislation would make it easier for Big Content, and especially for the copyright trolls who are often their vanguard, to bully ordinary individuals and increase the phenomena of copyright enforcement by fear, rather than through the law.
. . . .
Two other provisions of the CASE Act leave me with a good deal of uncertainty and disquiet. One cause for this is the potential to bring an action before the small claims board claiming infringement even on an unregistered work. Copyright registration is required prior to bringing a lawsuit in federal court, but this bill would allow such a claim before the small claims board, with a greatly reduced potential for recovery of damages. So such a claim would cost less to bring, but also offer less reward for success It is not clear to me if an author, acting on her own, would be well served by such an option, or if registration, which does not cost much and would allow greater damages even in a small claims action and also provide access to the federal courts, would still be more sensible.
. . . .
Indeed, the whole area of damages in small claims is rather problematic. On the one hand, statutory damages for copyright infringement are ridiculously high, and often are used to chill legitimate uses because the risk of making a mistake is so great. So lowering damages in the small claims arena makes sense, and the CASE Act caps such damages at $15,000 for any one act of infringement and $30,000 in a single action. Certainly small claims without reduced damages would be intolerable. But these damages still strongly favor plaintiffs over defendants, since the costs of suing would be much lower, while the risk of being held liable would still be potentially devastating for individuals. Add to this the fact that it would be impossible, before the small claims board, to be awarded attorney’s fees and court costs even if one won, and the odds are still strongly tipped in favor of the big content companies with in-house lawyers and against individual users — artists, authors and students, for example — who might find themselves on the wrong end of one of these claims.
. . . .
Overall, I have to conclude that this bill is a power grab by the Copyright Office and would be a boon to the lobbyists for Big Content. The makeup of the proposed small claims board would be recommended by the CO from the ranks of lawyers with substantial experience in copyright infringement actions, which means that those very lobbyists would probably become the judges (called “Copyright Claims Officers”). And the work of the board would, according to section 1402(c) of the bill, “be generally directed… by the Registrar of Copyright.” The provisions would give the Copyright Office tremendous influence on copyright enforcement, which would please the content companies a great deal, but would undoubtedly further detract from a balanced law that genuinely encourages new creativity, rather than merely protecting profits for legacy works.
Link to the rest at In the Open and thanks to Beth for the tip.
PG wrote earlier about problems involved if copyright small claims were handled in federal court, which is where appeals from decisions of the Copyright Office Small Claims Court would go. If a large company received an adverse ruling from the Copyright Office Small Claims Court, it would almost certainly appeal that ruling to the federal court, if only to put itself into better negotiating position to settle the case on better terms.
Setting up a separate court as an extension of the Copyright Office (as opposed to the federal court system) concerns PG because of the reasons mentioned in the OP and also because the copyright small claims court holds a great potential for devolving into an organization filled with insiders where unwritten rules become as important as the written ones. Under the proposed legislation, there are three attorney hearing officers who will be doing their work at the Copyright Office, so everybody will almost certainly be located in the Washington DC area.
Perhaps PG missed it, but he didn’t see any provision in the proposed legislation that prevented any of the hearing officers from continuing to practice copyright law on the side, only that they wouldn’t undertake any activities that would conflict with their duties as hearing officers.
In federal district court, while a given district will have some local rules, those rules are written and available from the court. Individual federal judges will always have their quirks, but they won’t (usually) conflict with the local rules and Federal Rules of Civil Procedure.
The discussion of copyright trolling in the OP is also an issue for authors of both books and blogs. Fanfic authors and video creators could expect more harassment. Since there are only three hearing officers and two staff attorneys authorized under the proposed legislation, the potential for large plaintiffs to completely jam their dockets with mass filings is high.
Talking about the legislation as a small claims court for copyrights is a bit misleading if it creates an image of a state-based small claims court where landlord-tenant disputes or local merchants collecting unpaid bills are typically handled in a few minutes by a judge.
The CASE Act is 51 pages long, much longer than any state small claims enabling legislation with which PG is familiar. It includes a great many procedural provisions which don’t seem to be particularly easy for a non-lawyer to understand.
Rep. Hakeem Jeffries (D-NY) has introduced a bill in the House of Representatives that will give authors the right to resolve “small” copyright claims.
The bill, known as the Copyright Alternative in Small-Claims Enforcement (CASE) Act of 2016, gives individual authors to right to defend their intellectual property rights without having to file a massive federal lawsuit.
The Authors Guild has been pushing for such legislation for the past decade. The Guild has been actively working with Congressman Jeffries’ office on this proposal for several months.
Link to the rest at GalleyCat and thanks to P.D. for the tip.
It’s been some time since PG has appeared in federal court but he doubts the caseload has lessened during that period. Certainly, there has not been a large increase in the number of federal judges.
While copyright small claims court is an interesting idea, should the legislation become law, PG suspects copyright claims would inevitably drop to the bottom of everyone’s to-do lists in federal courts.
Here’s a brief explanation why.
The big dogs in federal trial courts are the United States District Court Judges, nominated by the president and confirmed by the senate. Under the Constitution, these are lifetime appointments.
Most district court judges offload almost all routine and preliminary matters to magistrate judges. Magistrate judges are appointed by the district judges in a district and serve a term of eight years if they work full-time. Being a good magistrate is one way to be considered for a promotion when a district judge vacancy occurs.
Under tough federal drug laws, US District Courts handle a great many criminal cases. Because of due process and other constitutional protections (including the right to a speedy trial) afforded to those accused of a crime, criminal cases tend to rise to the top of everyone’s to-do list. Nobody in the federal court system wants a big drug dealer released on a technicality.
Magistrates do judge-type work as assigned by the district judges. Magistrates have the power to adjudicate misdemeanors and preliminary matters in felony cases, but the district judges will handle the felony trials. If an accused doesn’t like a decision by a magistrate, he/she can appeal that decision to the district judge.
One of the basic tactics of criminal defense lawyers is to delay, delay, delay. Every day their client spends outside of federal prison is a day when evidence can be misplaced, a key witness can recant testimony, a new lawyer in the US Attorney’s office can screw up a filing, etc., etc.
Unless the small claims copyright legislation prohibits doing so, PG suspects 99.9% of district judges will assign 100% of these cases to the magistrates.
In civil matters like copyright claims, the parties have a right to a trial before a district judge, but PG suspects most district judges would set trial dates for small claims copyright cases many years in the future. Such trial dates would be subject to multiple postponements because of time-sensitive criminal matters coming before the district judges.
Since the magistrate judges are appointed by the district judges and must be reappointed every eight years, the magistrates are focused on keeping the district judges happy. If a magistrate screws up a technicality in a felony case (not difficult to do) and causes the district judge to sign the necessary papers to send someone in prison and an appellate court reverses the district judge with a snippy opinion, the magistrate will be dealing with an embarrassed district judge whose face shows up on TV and multiple websites because his/her mistake allowed El Chapo to walk.
This is a long way of saying that the magistrate will be likely to pay much more attention to the long list of drug cases before the court than he/she will pay to a small claims copyright case filed by an author who is not a drug dealer.
PG’s bottom line is that a small claims copyright law is a nice idea that may not end up doing authors as much good as he would hope.
The day I feared since David Cameron stepped out the door of 10 Downing Street in May 2015 to declare victory for the Conservative Party came to pass in the early hours of June 24, when news spread that voters opted to take Britain out of the European Union, of which it had been a grouchy member for more than 40 years. “No man is an island,” John Donne wrote in his Devotions upon Emergent Occasions. “If a clod be washed away by the sea, Europe is the less.”
At the most basic level, uncertainty is always bad for business. Small British publishers—always conscious of cutting their cloth—will be cautious indeed. The multinational houses that dominate the industry will be modeling various scenarios. I hear that one has already put new projects and contracts on hold. And as with the 2008 recession, some will use Brexit as an excuse to rationalize, to put out to grass older and wiser, but more expensive, heads and hire younger, cheaper staff. (How must indebted British postgraduate students feel, their futures blighted?)
On both the high street and Amazon, sales of books (and much besides) in the U.K. will slump. Brexit will mean an increase in the cost of living. Inevitably, all that means at least a short-term cut in discretionary spending, as there was in 2008. Clearly that will have impact on British booksellers and publishers; lists will be trimmed—perhaps slashed—in response.
Publisher turnover will be further imperiled by the loss of European sales. After skirmishes a few years ago, it was broadly agreed that U.K. publishers should be able to acquire exclusive English-language rights for the entire E.U. market. But with Britain out of the E.U., Europe—including Ireland—becomes an open market, a battleground where the cheapest edition wins out. Academic and educational publishers will be able to continue to seek world English rights and possibly continue to obtain a full assignment of copyright, but trade publishers will not.
Moreover, U.K. trade publishers need Europe to give them scale; after all, their U.S. counterparts already have Latin America and sometimes Canada. The realignment will reduce the income of British authors for whom Europe is currently part of the home market so far as royalties are concerned. The situation could become desperate if—or when—Scotland gains independence in order to remain in the E.U.
When Garci Rodríguez de Montalvo wrote his version of Amadis of Gaul, he probably wasn’t thinking of payment. In medieval times, writing was either a gentlemanly avocation or a vocation sponsored by a gentlemanly patron. Books were hand-copied, so literature couldn’t be commercialized. Montalvo was a gentleman whose occupation was managing the city of Medina del Campo near Valladolid.
But only a century later, the printing press had come into being and had turned books into an affordable mass commodity. Miguel de Cervantes wrote Don Quixote de la Mancha, a parody of books like Amadis of Gaul, for money. Writing had become a profession, and professionals got paid.
What did Cervantes earn for Quixote? We don’t know, but we have enough clues to try to guess. Cervantes was poor before it was published and poor after it was published, so it wasn’t a huge amount of money. Everyone agrees on that.
. . . .
Don Quixote de la Mancha was published in two parts, the first in 1605 and the second in 1615. Cervantes didn’t plan on a second part, but after another author wrote a continuation, he decided to write his own.
In 1604, Cervantes was 50 years old and living in Valladolid. He had written a short story about Don Quixote, and he presented the idea of a novelization to publisher Francisco de Robles, who agreed and urged Cervantes to get it ready fast. Then the book was hastily edited (which explains the many errors in the text), printed on cheap paper with worn type, and rushed to the market.
Probably no one considered it a universal masterpiece at first, but the first edition of 1,000 copies sold well — in fact, it was immediately pirated in Lisbon. Cervantes had already won notice as a playwright, and this book cemented his reputation as a major writer.
He had received a 10-year royal privilege to print Don Quixote, which he sold to Robles for an unknown amount; the paperwork was lost. But he had sold an earlier novel, La Galatea, to Robles’ grandfather for 1,336 reales, of which he eventually only received 1,086.
Nieves Concostrina, a journalist with Radio Nacional de España, reported in the series Acércate al Quijote that he received no more than 100 ducados (which equals 1,100 reales or 37,500 maravedíes) for the copyright, which she estimates is worth only about €200 today.
Daniel Eisenberg, the former editor of Cervantes, the scholarly journal of the Cervantes Society of America, wrote that he probably received 1,500 reales (51,000 maravedíes), which he says would have been worth 500,000 pesetas in 1992, or €5,503.72 today. That’s better, but no J.K. Rowling.
The music industry is locked in an epic battle with YouTube, the most popular on-demand service, over the declining royalty rates the site pays per stream as it grows, and the difficulty in detecting copyrighted material from the mass of videos uploaded on the site.
The site voluntarily offers record labels a system to automatically block, monetize or mute their music on the site, matching audio files with 99.7% precision, the service says, and a chance for labels to cash in on user-uploaded content instead of merely resorting to sending takedown notices.
But many music rights holders say the YouTube system isn’t foolproof and requires them to conduct a laborious, manual search daily to track content and collect royalties. They worry that YouTube gains an unfair advantage with the lower rates it pays for music over other on-demand streaming services such as Spotify and Apple Music, which pay far more per play but together have relatively fewer paying subscribers at 68 million, according to the International Federation of the Phonographic Industry’s latest report.
The music industry believes its future lies with these streaming services rather than YouTube, which they fret is conditioning fans to not pay for on-demand tunes.
But YouTube, a unit of Alphabet Inc., with its more than 1 billion users, packs clout and reach that the industry can’t ignore. YouTube says it has paid about $3 billion to music companies since it launched a decade ago, and today half of its payout comes from user-generated content identified by its system called Content ID.
. . . .
Although the Alphabet unit pays out more overall each year, it now pays an average of eight one-hundredths of a penny ($0.0008) per play, and less than six one-hundredths ($0.0006) of a penny for user-generated content, down roughly 20% from a year ago, people familiar with the matter said.
The free tiers from SoundCloud and Spotify, by contrast, pay at rates up to six times the rate YouTube offers for user-uploaded videos, one rights holder said. Another said it gets an average of 35% more per play ($0.0011) from these free services than it does from YouTube videos. Paid subscription services pay even more per play, according to rights holders.
. . . .
But many in the music industry say the system isn’t automatically identifying many of their recordings when users have altered or combined them—or occasionally for no apparent reason at all. Furthermore, labels charge that Content ID doesn’t scan the YouTube channels managed by major TV networks and smaller networks such as Fullscreen and AwesomenessTV, many of which feature amateurs covering popular songs.
A jury today found that Led Zeppelin had not plagiarized the opening riff of “Stairway to Heaven.”
After a day of deliberation, the ruling came back that there was no copyright infringement. An eight-person jury delivered the verdict, ruling there was no “extrinsic similarity between Spirit’s ‘Taurus’ and ‘Stairway,'” following five days of testimony from music experts, a former Spirit band member and the surviving members of Led Zeppelin.
Are Canadian students being forced to learn from foreign textbooks?
That’s the concern of John Degen, executive director of the Writers’ Union of Canada.
“I hear again and again from professors and from teachers saying that they simply don’t feel they have access to enough Canadian works right now,” he told CBC News.
“And they have to go elsewhere. Their institutions are insisting that they use only free material, and a lot of free material is coming from outside of Canada.”
. . . .
The reason, according to Degen, is the recent changes made to Canada’s copyright laws that exempt educational institutions from paying certain fees they used to pay.
Those changes may have been great for shrinking school-board budgets, but they’re hurting Canadian writers and publishers, some of which are getting out of the business altogether or vastly reducing what they print.
As authors gathered this week for the first-ever Canadian Writers’ Summit in Toronto, getting paid for their work was on their minds. It was standing room only at one panel highlighting that, in the age of the internet, the pressure to loosen copyright laws is growing worldwide.
. . . .
[W]riters in Canada are making less than ever, with 80 per cent earning an income (from their writing) below the poverty line, according to a 2015 Writers’ Union survey of its members and other writers’ incomes.
. . . .
The effect is not just being felt by writers. A few years ago, Emond Publishing sold more than $1 million worth of books to high schools annually. Now, said president Paul Emond, it’s dropped to about $100,000.
“That’s what falling off a cliff in the publishing business looks like,” he said.
. . . .
Schools that formerly bought a class set of 20 to 30 books — for use by perhaps hundreds of kids — started buying just a single copy of the same book, Emond explained. They then scanned or photocopied portions to distribute to students.
. . . .
The issue dates back to 2012, when Canada’s Copyright Act was updated and education was added to the list of fair dealing exemptions from paying copyright royalties. A Supreme Court ruling the same year specified that “short excerpts” for educational purposes could be copied without payment.
That allowed schools and universities to stop paying fees to copy and use excerpts of authors’ works. Educational associations have defined “short” to include up to 10 per cent of a work, a chapter of a book or an article from a periodical.
Link to the rest at CBC News and thanks to Dave for the tip.
[Led Zeppelin] is back in the public eye, defending itself in court against a new and even more potentially damaging (if equally unsurprising) allegation: namely, that “Stairway to Heaven,” the band’s signature tune and 31st on Rolling Stone’s list of the “500 Greatest Songs of All Time,” was stolen from a now-forgotten psychedelic rock band called Spirit.
The trial, which began on Tuesday, may seem to many onlookers like a classic David-and-Goliath scenario, in which the scrappy underdogs finally have a chance to settle the score with the big, bad superstars who took all the credit for their unsung work of musical genius. While this would make a great straight-to-VH1 movie (and I’m certain it will, if Spirit ultimately prevails), the reality is of course more complex, and the stakes are actually far higher than mere writing credit and a couple million dollars.
. . . .
In a nutshell, Skidmore claims that the distinctive acoustic guitar riff at the beginning of “Stairway” (recorded in 1970-71) was taken directly from a Spirit song called “Taurus,” which Led Zeppelin heard while on tour with the other band in the winter of 1968-69. Though Wolfe never made an infringement claim during his lifetime, the complaint cites an interview conducted shortly before he died, in which the songwriter lamented that “it was a rip-off. And the guys made millions of bucks on it and never said, ‘Thank you.’”
. . . .
To begin with, while the riffs are similar, they’re not actually the same. Any guitarist worth her salt could tell you as much, and even a layperson looking at the notes printed on a page would have to agree they’re two distinct melodies. Though this might sound like quibbling, it makes a huge difference when it comes to copyright law. That’s because the law doesn’t protect ideas, only the specific expression of an idea. This is why the Hunger Games, Maze Runner, and Divergent franchises can happily coexist on the screens at your local IMAX theater. And the fact that Suzanne Collins doesn’t own the exclusive rights to “dystopian post-apocalyptic young adult science fiction with a romantic element” is good for everyone involved—more entertainment for us, more employment for writers, actors, and filmmakers, and more profit for big media companies.
Second of all, according to copyright law, you can only claim infringement against someone to protect an original work of authorship. For instance, if I had written a story about a man named Noah who builds an ark to save humanity and a bunch of animals from a flood, I couldn’t sue Darren Aronofsky for making a film with the same plot and characters. That’s because it wasn’t my idea to begin with; we both based our work on the Bible, which was itself probably based on older myths. In the language of copyright law, the Biblical tale of Noah is what’s referred to as “prior art”—something that predates the allegedly infringed work, undermining the validity of the infringement claim altogether.
The same applies in the case of “Stairway to Heaven”; even if Led Zeppelin did write the song immediately after hearing “Taurus,” it’s not clear that what they took was original to the older song. Both tunes are based on a descending chromatic A-minor harmonic structure, which basically means playing one of the most common chords in Western music (a minor triad), then moving the lowest note one piano key at a time for a few bars, from the root down to the fifth. This trick, which is sometimes referred to as a “line cliché” or a “lament bass,” has been around for hundreds of years in the classical music world, and appears in the work of Henry Purcell, J. S. Bach, and countless others.
The author of the New York Times best-seller Rocket Boys is suing Universal Pictures for overstepping the life rights he granted in the 1990s and shutting down a musical adaptation of his book in favor of launching its own, according to a complaint filed Thursday in Los Angeles County Superior Court.
Homer Hickam Jr. says he agreed to give Universal the rights to one book to adapt into one film, October Sky.
Now he is suing Universal, and its president James Horowitz and vp of live theatricals Christopher Herzberger, for a host of claims including breach of contract, fraud, misappropriation and unfair competition. Hickam is seeking at least $20 million in damages, an injunction to shut down the October Sky musical and a declaration from the court that Universal does not have any rights to his life story other than the right to make the original 1999 film.
Rocket Boys is the story of Hickam’s life, centering on the family conflict surrounding his decision to build rockets instead of entering the coal mining business.The author claims he sold that story to Universal in 1996, and his now-deceased literary agent Mickey Freiberg assured Hickam that his sequels were protected and reserved, that the agreement was for one film only and that Universal would have to provide significant payment if it wanted to remake the movie or create a new project.
A decade later, Hickam developed and produced Rocket Boys into a live stage musical with the approval of Universal, according to the lawsuit. In 2015, Universal decided to create an October Sky musical, purportedly based on the film and Hickam’s memoir, and has shut down the author’s stage show.
“Universal has demanded that Hickam cease and desist in developing, producing and performing the Rocket Boys musical and accept a complete gag order that would punish him if he ever said a word about Universal’s wrongful and improper conduct,” states the complaint. “Universal has taken the completely fallacious position that Hickam has optioned all rights to Universal to make any and all motion pictures or live stage productions arising from any and all stories he may write about his life.”
Link to the rest at Yahoo Movies and thanks to Meryl for the tip.
PG will observe that deceased agents are not very useful for determining the meaning of ambiguous contract clauses.
If an author contractually grants rights to his/her book for the full length of the copyright (the remainder of the author’s life plus 70 years in the US and similar durations in other western countries), everybody involved in creating the contract will be dead before the contract ends. This is one of the many reasons for getting the language of the contract exactly right.
Of course, the consequences of poorly-drafted contract language would have fewer potential adverse consequences for the author if the contract’s duration was a more reasonable period of time. A misunderstanding that impacts an author for three years or five years or seven years is less serious than one the author will never outlive.
PG will also observe that the contracts of KDP and other ebook sales channels of which PG is aware may be terminated by either party at any time. This is not to say that authors should not take their KDP contracts seriously and understand the obligations contained therein, but an author who wants to take their book in a different direction can easily do so.