On Copyright Again

2 March 2015

From Joe Konrath:

Last summer I wrote about the need to reform copyright.

. . . .

I talked about how fun it would be to write a comic where Superman, Hulk, and Spawn fight, but how that isn’t ever going to happen.

DC owns Superman. Marvel owns Hulk. Image owns Spawn.

Since none of these characters are in the pubic domain, the only way to use them is with a license. But that’s only one level of restriction. Even with an approved license, licencors will have rules. The few existing Marvel-DC/Hulk-Superman fights have been lackluster at best. That’s because the rules imposed by the licensor override any creative freedom on the part of the author/artist.

Writers who work for a specific comic company have rule sheets and bibles for what is allowed and what isn’t. Unless special exceptions are given, there are boundaries. It’s stifling creatively.

. . . .

How interesting it would be if fair use allowed writers to use the IPs of others. Let’s say it was a limited use; maybe 15% of the completed protect. It would still be a game-changer.

. . . .

We live in a world where artists are regularly screwed by publishers, producers, and record labels, but it’s okay because they signed on the dotted line, even though the contract sucked. But then we have a ridiculous double standard, where heirs and companies can hold onto the rights to Mickey Mouse and Sherlock Holmes and Carmina Burana for long after the original artists died.

I know I’m bringing up a lot of ideas here, some of them possibly conflicting, so let me highlight a few points:

  • When an artist dies, any IP they created should revert to heirs.
  • If that IP is currently being exploited by a company (producer, label, publisher) it should still revert. Artist dies, contract is over.
  • Once reverted, heirs are allowed to hold that copyright for a minimal amount of time. Say 40 years. But they don’t have a say in how that copyright is used.
  • Once reverted, any other artist or producer can use that IP in a commercial version of fair-use. I’ll propose that if a certain percentage of the IP is used in a certain percentage of a new work, the heirs get a certain percentage of profits associated with that work, or certain set fees if that work is for advertising purposes.
  • If the artist is still alive, there should still be commercial fair use laws. Perhaps stricter than what the heirs have, but other people should still be able to use what the artist has done. I point to my Jack Daniels & Associates Kindle World as an example of that. Go ahead and use what I created, however you’d like, but pay me some set percentage.

Link to the rest at Joe Konrath

You Bought the Rights to that Music, Didn’t You?

27 February 2015

From author Jacquelyn Lynn via Tuscawilla Creative Services:

We have written before about how important it is to either own or acquire the rights to use the material on your website. The same applies to anything you post online, including videos on YouTube.  It’s the ethical and legal thing to do and it’s the standard by which we operate for ourselves and our clients.

So you can imagine how we reacted when we were accused of using copyrighted music without permission. Here’s the story:

Earlier this year, we produced a short video that was designed to promote our video production capabilities and generate some residual income. To set the right tone for the video, we needed some music that was peppy but didn’t overpower the visual image.

I looked through the royalty-free music in our files and found the perfect clip. It was “Lawn Barbecue,” a short, upbeat Bluegrass tune. I had purchased the rights to use it last year from Sony Creative Software’s Sony Sound Series/Production Music. With the music track added, I uploaded the final product to our YouTube channel.

Immediately after the upload was complete, we received a notification from YouTube that there was a copyright claim on the music clip.

. . . .

Filing a copyright claim on media uploaded to YouTube allows the claimant to do one of three things:

(1) they can take down the entire video;

(2) they can strip out the entire soundtrack (or just the portion in question); or

(3) they can leave the video intact, place ads on it and have the entire proceeds from those ads directed to themselves.

The entity uploading the video (in this case, Tuscawilla Creative Services) is prevented from deriving any income from it even though the element in question represents a small part of the total.

. . . .

I searched the Organic Music Library website for the piece of music they were calling “Jubilation.” To my surprise, I found it listed among hundreds of other tunes. The contributor was listed as David Lawrence.

To my even greater surprise, when I listened to the “Jubilation” clip, it was (to my ear) identical to the clip I had purchased called “Lawn Barbecue” – not just the same melody, but the same recording.

Armed with this information, I disputed Audiam’s copyright claim with YouTube. I provided all the information my research revealed along with the confirmation number for my purchase of the rights to “Lawn Barbecue” from Sony.

After about ten days, I received an email from YouTube with this terse statement: “After reviewing your dispute, Audiam (Label) has decided that their copyright claim is still valid.” Interesting. And frustrating. I felt like I was trying to walk through a room full of baited mousetraps.

Link to the rest at Tuscawilla Creative Services

Here’s a link to Jacquelyn Lynn’s books

PG can’t comment on Jacquelyn’s particular situation, but generally speaking, if the owner of a copyright sees an infringing use posted to an online service provider like YouTube by a third party, in the US pursuant to the Digital Millennium Copyright Act, the copyright owner can file a takedown notice.

If the service provider promptly takes down the offending material, the service provider won’t be liable for copyright infringement.

Upon receiving a copy of the takedown notice from the service provider, if the party that posted the alleged infringing material provides a counter-notice under 17 U.S. Code § 512 (g), the service provider is required to repost the alleged infringing material within 10 days.

For much more information on takedown notices in (relatively) plain English, see the Electronic Frontier Foundation.

‘Fault in Our Stars’ author: Oops, I didn’t write that quote

19 February 2015

From CNN:

“I’m in love with cities I’ve never been to and people I’ve never met.”

It’s a quote that you may have seen online, attributed to best-selling author John Green. The sentiment is certainly thought-provoking, but there’s one problem: Green never wrote it.

The writer, whose hit book “The Fault in Our Stars” was made into a hit movie last summer, made the revelation in a YouTube video he posted on Tuesday, after only recently having realized what he said was a mistake.

“When I saw the quote, I assumed it came from [my book] ‘Paper Towns,'” he said.

“People kept sourcing it as coming from ‘Paper Towns.'”

The quote originally popped up on the social network Tumblr, which like other social media is a haven of quotes, both real and not-so-real.

. . . .

Because of what he says was a mistaken belief, Green sold posters of the quote, attributing it to himself. He said he did not remember writing the line, but he doesn’t remember writing a lot of things he wrote years ago.

In the video, he said, “Instead of blindly assuming something I’d written, something the Internet said I wrote, I should have done some research.”

He was alerted to the fact on Reddit, learning that a teenage fan of his, Melody Truong, had come up with the quote in 2009, and Green was then given credit by many people online as the quote went viral over the years.

Green was upset that Truong was being accused of stealing his quote: “I’m the thief!” he proclaimed.

. . . .

Green fell on his sword in the video, and added that Internet culture as a whole is guilty of this sort of thing.

“We do an epically bad job of acknowledging one another’s work and checking our sources.”

Green is retroactively paying royalties from sales of the posters to Truong, who learned about the quote being misattributed a few years ago, but didn’t think much of it.

Link to the rest at CNN and thanks to Meryl for the tip.

You bought it, you can re-sell it: Costco can keep selling gray market Omega watches at a discount without copyright liability

22 January 2015

From The Volokh Conspiracy blog at The Washington Post:

On the day that the Electronic Frontier Foundation designated “You Bought it, You Own It” day, the 9th Circuit has finally brought down the curtain on the decade-long dispute between Omega, the watch manufacturer, and Costco, the discount retailer and decided that Costco can continue to sell Omega watches at a discount because, in effect, they bought them, and they own them, and can dispose of them however they wish.

The background to the suit is pretty simple.  Costco bought a bunch of Omega Seamaster watches overseas on the so-called “gray market” – i.e. from an authorized Omega distributor.  The watches, intended for sale in Europe, were priced low enough so that a third party, ENE Limited, could purchase them abroad and sell them to Costco, which could offer them to US customers at a price significantly below the price at which Omega-authorized distributors in the US offered them for sale.  Omega, admittedly trying to block this very thing, had inscribed a tiny globe on the back of the watch (where no one would ever really see it); they then brought suit against Costco, asserting that the retailer was “distributing copies” of a copyrighted work – the tiny globe — to the public without its (Omega’s) permission.

. . . .

Omega, in the first round of litigation, initially prevailed – both in the 9th Circuit and in the Supreme Court (which affirmed the 9th Circuit judgment in Omega’s favor by a 4-4 vote, with Justice Kagan recused).  Although ordinarily the “You Bought It, You Own It and Can Do What You Wish With It” argument prevails as a defense to copyright infringement – the so-called “first sale” doctrine, which lets you, say, but 50 copies of a copyright-protected book and then re-sell them (or give them away) without liability – the 9th Circuit originally sided with Omega because it interpreted the first sale doctrine as being inapplicable to copies manufactured abroad.

. . . .

Kirtsaeng’s view of the law, the 9th Circuit has now held, disposes of the case (in Costco’s favor); they bought and owned the copies of the copyrighted works – the tiny globe designs, which just happened to be attached to watches – and can resell those copyrighted works at whatever price they chose.

. . . .

Judge Wardlaw, concurring here in the judgment against Omega . . . would ground the judgment against Omega here on the ground that Omega’s actions constituted “copyright misuse.”

It’s a pretty powerful argument – after all, Omega’s case really had absolutely nothing to do with “protecting its copyrights” and everything to do with stamping out competition.  The watches themselves are not copyright-protected works (because of another copyright doctrine, the “useful article” doctrine, which largely does away with copyright protection for “utilitarian” objects).

Because the watches are not the proper subject of copyright protection, Omega does not argue that Costco infringed copyrights protecting its watches, the argument upon which the majority rests its opinion. Instead, it argues that Costco infringed its limited monopoly over the copyrighted Globe Design, which was engraved on the watches that Costco sold.

Inherent in granting a copyright owner the exclusive right to reproduce his works is the risk that he will abuse the limited monopoly his copyright provides by restricting competition in a market that is beyond the scope of his copyright. An owner’s attempt to impermissibly expand his lawful protection from competition contravenes not only the policy of the copyright laws, but also the central purpose of the antitrust laws

Omega misused its copyright “by leveraging its limited monopoly in being able to control the importation of [the Globe Design] to control the importation of its Seamaster watches.”

. . . .

“The limited scope of the copyright holder’s statutory monopoly, like the limited copyright duration required by the Constitution, reflects a balance of competing claims upon the public interest: Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts.” Omega’s attempt to expand the scope of its statutory monopoly by misusing its copyright in the Globe Design upset this balance. The watchmaker’s anti-competitive acts promoted neither the broad public availability of the arts nor the public welfare. Instead, they eliminated price competition in the retail market for Omega watches and deprived consumers of the opportunity to purchase discounted gray market Omega watches from Costco. Omega misused its copyright by engraving the Globe Design on the underside of its watches, and attempting to use copyright law to eliminate intrabrand competition from Costco in the retail watch market.

Link to the rest at The Washington Post

Here’s a link to the court’s opinion

PG predicts the first sale doctrine is going to be litigated with respect to resale of ebooks at some point.

Ebooks are, of course, routinely licensed, not sold and the Digital Millennium Copyright Act comes into play because, at their root, ebooks are (pretty simple) computer code.

Moreover, if the publisher of a printed book purported to license, not sell the book to someone who acquired the book, that would be easy for the court to strike down.

If you want to read more about copyright misuse, here’s a link to a good introduction.

Authors Guild Gives Up Trying To Sue Libraries For Digitally Scanning Book Collection

12 January 2015

From TechDirt:

Back in June we wrote about how the Second Circuit appeals court totally demolished the Authors Guild’s arguments against a bunch of university libraries for scanning their book collections digitally, in order to enable better searching of the contents. The lawsuit was against Hathitrust, an organization set up to manage the book scanning program for a group of university libraries. In 2012, a district court said that what the libraries/Hathitrust were doing was obviously fair use and the appeals court re-enforced that strongly. The Authors Guild is basically giving up in this case, saying that should the libraries change their practices, it may want to revisit the issue. But for now, it’s giving up the case while “reserving” its position.

This is hardly a surprise. However, while it’s given up on the Hathitrust case, the case against Google for basically the same thing is still ongoing. And, yes, it’s so far lost there as well.

Link to the rest at TechDirt

Flickr kills sale of Creative Commons prints, issues refunds

19 December 2014

From Gigaom:

Flickr has abruptly ended a service that allowed people to buy canvas or wood prints based on pictures that appeared in its Creative Commons gallery, the photo sharing site announced on Thursday.

The decision comes just weeks after Yahoo, which owns Flickr, first launched its so-called Wall Art service as a way for customers to purchase physical copies of its millions of images that can be used for free online.

The service immediately ran into controversy after some photographers complained that Yahoo was earning up to $49 for each print, but was not sharing any of the money with those who had posted the photos in the first place.

Link to the rest at Gigaom

Judge Cote rules DRM removal for fair use is not copyright infringement

11 December 2014

From Chris Meadows via TeleRead:

The Apple anti-trust case continues to have some interesting fallout. The EFF today issued a press release concerning Judge Denise Cote last month dismissing some charges in a related case, trumpeting that Cote had ruled that stripping DRM for fair use purposes is legal. I’ve read the 20-page opinion, and I’m not so sure. Here’s what I know.

The case pertains to Abbey House, the operator of the “BooksOnBoard” e-book store. In March, 2014, Abbey House (and two other defunct e-book store operators) filed suit against Apple and the Agency Five alleging that their implementation of agency pricing drove their stores out of business. In August, Judge Cote ordered them into mediation.

Meanwhile, two of the publishers, Simon & Schuster and Penguin, filed a countersuit against Abbey House. The suit pertained to an announcement Abbey House had posted when it was going out of business, encouraging customers to back up their e-books—and it mentioned they could use Calibre to strip the DRM. “Many argue that this is a legitimate use as long as this is being done for personal use of eBooks purchased, not for piracy. We are told this is in the spirit of the eBook license and that it is common practice.”

. . . .

Cote dismissed the charge of contributory infringement, ruling that the publishers didn’t have a case because they couldn’t point to any specific example of actual infringement—which is to say, cracking the DRM and then uploading the copies to peer-to-peer or even just sharing them with friends, rather than just cracking the DRM for the fair use purposes of backing media up or transferring it to other devices. There has to be an actual infringement for Abbey House to be contributing to for it to be liable for contributory infringement.

. . . .

The contractual claims relied on language in the contracts. Cote dismissed the Penguin claim because the clause Penguin was using, insisting that customers had to agree not to break the DRM when they bought the books, applied only at the time the books were sold; the contract didn’t say anything about breaking it afterward.

Link to the rest at TeleRead

Flickr’s Wall Art Program Exposes Weaknesses in Licensing Automation

7 December 2014

From Copyright and Technology:

Suppose you’re a musician.  You put your songs up on SoundCloud to get exposure for them.  Then you find out that SoundCloud has started a program for selling your music as high-quality CDs and giving you none of the proceeds.  Or suppose you’re a writer who put your serialized novel up on WattPad; then you find out that WattPad has started selling it in a coffee-table-worthy hardcover edition and not sharing revenue with you.  You’d be pretty upset, right?

Those are rough equivalents of what Flickr, the Yahoo-owned photo-sharing site, has been doing with its Flickr Wall Art program.  Flickr Wall Art started out, back in October, as a way for users to order professional-quality hangable prints of their own photos, in the same way that a site like Zazzle lets users make t-shirts or coffee mugs with their images on them (or Lulu publishes printed books).

More recently, Flickr expanded the Wall Art program to let users order framed prints of any of tens of millions of images that users uploaded to the site.  This has raised the ire of some of the professional photographers who post their images on Flickr for the same reason that musicians post music on SoundCloud and similar sites: to expose their art to the public.

The core issue here is the license terms under which users upload their images to Flickr.  Like SoundCloud, Flickr offers users the option of choosing a Creative Commons license when they upload their work.  Many Flickr users do this in order to encourage other users to share their images and thereby increase their exposure — so that, perhaps, some magazine editor or advertising art director will see their work and pay them for it.

The fact that a hosting website might exploit a Creative Commons-licensed work for its own commercial gain doesn’t sit right with many content creators, who have operated under two assumptions that, as Flickr has shown, are naive.  One is that these big Internet sites just want to get users to contribute content in order to build their audience and that they will make money some other way, such as through premium memberships or advertising.  The other is that Creative Commons licenses are some sort of magic bullet that help artists get exposure for their work while preventing unfair commercial exploitation of it.

Let’s get one thing out of the way: as others have pointed out, what Flickr is doing is perfectly legal.  It takes advantage of the fact that many users upload photos to the site under Creative Commons licenses that allow others to exploit them commercially — which three out of the six Creative Commons license options do.  It seems that many photographers choose one of those licenses when they upload their work and don’t think too much about the consequences.

. . . .

Flickr is — still, after ten years of existence — a major outlet for photos online. As such, Flickr has the means to control, to some extent, what happens to the images posted on its service; and with Flickr Marketplace, it is effectively wresting some control of commercial licensing opportunities away from photographers. Some degree of control over content distribution and use does exist on the Internet, even if copyright law itself doesn’t contribute directly to that control.

. . . .

The problem here is the lack of both flexibility and infrastructure for commercial licensing in the Creative Commons ecosystem. Creative Commons is a clever and highly successful way of bringing some degree of badly-needed rationalization and automation to the abstruse world of content licensing. But it gives creators hardly any options for commercial exploitation of their works.

Link to the rest at Copyright and Technology

Court of Appeals hears Authors Guild’s Google appeal

4 December 2014

From The Bookseller:

Google’s effort to scan and digitize millions of library books violates copyright law and deprives authors of licensing fees, royalties and sales, a lawyer for the Authors Guild told an appeals court in New York yesterday.

The Authors Guild has taken its battle with Google over the digitizing of out-of-print library books to the Second Circuit Court of Appeals in the US after a judge ruled in Google’s favour in 2013.

The Authors Guild’s lawyer Paul Smith argued in front of three appeals judges that Google’s digitizing of millions of books was done for commercial reasons, to increase traffic to Google search engines and deprived authors of a potential market to license books for search. He also argued the Google project stretched what was lawfully allowed under the “fair use” clause of copyright law.

However, Google’s lawyer Seth Waxman argued that the process had “revolutionized” how people find books and that authors’ sales were boosted through the depository, rather than harmed.

“There is no evidence in this record, none, of any market harm to the authors,” Waxman said.

. . . .

Circuit Judge Pierre Leval said most examples of fair use are commercial in nature, for example when newspapers quote other newspapers, and told the Authors Guild’s lawyer: “I would be surprised if you’re going to win the case by pointing out that Google, like the New York Times, is a profit-making enterprise.”

Link to the rest at The Bookseller

Fight Over Yahoo’s Use of Flickr Photos

26 November 2014

From The Wall Street Journal:

About twice a week, someone asks Liz West ’s permission to use one of the nearly 12,000 images the amateur photographer has uploaded to the photo-sharing site Flickr over the past decade.

Ms. West is usually happy to comply. One woman in England created notecards using her floral pictures and sent her 100 cards in appreciation, she said. Vermont Castings, a stove and fireplace maker, used one of Ms. West’s photos on its website and shipped her a small stove as a gift.

But she’s not happy about a recent move by Yahoo Inc., Flickr’s owner, to make canvas prints from the photos she and others post to the site, sell them for up to $49 apiece and keep all of the profits.

“It ticked me off that somebody else is selling them when I was giving them away,” said Ms. West, a retired writer in Boxborough, Mass., who goes by “Muffet” on Flickr.

. . . .

More than 300 million publicly shared Flickr images use Creative Commons licenses, making it the largest content partner. Yahoo last week said it would begin selling prints of 50 million Creative Commons-licensed images as well as an unspecified number of other photos handpicked from Flickr.

For the handpicked photos, the company will give 51% of sales to their creators. For the Creative Commons images, Yahoo will keep all of the revenue.

Yahoo says it is complying with the terms of Creative Commons by selling only images that permit commercial use. The licenses “are designed for the exact use case that we’re enacting through our wall-art product,” Bernardo Hernandez, vice president of Flickr, wrote in an email.

. . . .

Yahoo’s plan to sell the images appears “a little shortsighted,” said Flickr co-founder Stewart Butterfield, who left the company in 2008. “It’s hard to imagine the revenue from selling the prints will cover the cost of lost goodwill.”

The Wall Street Journal contacted 14 photographers with Creative Commons-licensed works on Flickr. Eight said they didn’t object to Yahoo’s move and are happy to get additional exposure for their work. “Any amateur photographer would love to have his or her photos hanging on walls around the world,” Andreas Overland, a Flickr user in Oslo, Norway, said in an email.

Six others objected to the company profiting from their works.

“When I accepted the Creative Commons license, I understood that my images could be used for things like showing up in articles or other works where they could be showed to public,” Nelson Lourenço, a photographer in Lisbon, Portugal, said in an email. Yahoo “selling my work and getting the full money out of it came as a surprise,” he said.

Link to the rest at The Wall Street Journal (Link may expire)

PG says pay attention to the Terms and Conditions whenever you submit your creative efforts online.

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