©opyBites: Copyright Law Blog

Lessing on YouTube v. Flickr

Lessig Blog:Prof. Larry Lessig notes what he considers to be a critical distinction arising among new web-based sharing services:

So there’s an important distinction developing among “user generated content” sites — the distinction between sites that permit “true sharing” and those that permit only what I’ll call “fake sharing.”
A “true sharing” site doesn’t try to exercise ultimate control over the content it serves. It permits, in other words, content to move as users choose.
A “fake sharing” site, by contrast, gives you tools to make seem as if there’s sharing, but in fact, all the tools drive traffic and control back to a single site.
In this sense, YouTube is a fake sharing site, while Flickr, (parts of) Google, blip.tv, Revver and EyeSpot are true sharing sites.

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William Patry Muses On SIRA

The Patry Copyright Blog:

This week, if the House of Representatives marks up its "Section 115 Reform Act of 2006" (affectionately called SIRA), we may get a lesson about whether copyright rights may be frogs and fish; that is, whether one act may implicate two different rights. Since at the least the the debates in the early 1990s on providing a digital audio transmission right in what became Section 106(6), this issue has been the subject of contention, first by the performing rights societies, who wanted to make sure that rights granted to record companies didn't diminish money paid to them under Section 106(4), and second with the amendment to Section 115 expanding the compulsory license to include digital phonorecord deliveries: could a transmission be both a performance and a distribution, and more to the point, could two payments be required for the same transmission of the same work?

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Lenz on Uradex

Lenz Blog:

The European Court of Justice has decided the Uradex copyright case on June 1st.

The remarkable result of that case is that a collecting society can grant or deny permission for cable retransmission even without having received any transfer of copyright from the rightholders in question.

Uradex, the collecting society in question in this case, can represent authors without a mandate from them. They can grant or deny permissions without checking what the real copyright holders want, and possibly contrary to their will.

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Protests And Other Thoughts About DRM

Recently, DRM Protestors staged a surprise demonstration at a Windows Hardware Engineering Conference , succeeding to the extent that they even disrupted Bill Gate's keynote. Further details, including pictures of the demonstrators in HazMat suits, is available at boingboing.com.

In response to these demonstrations, Randy Picker has a new post on the University of Chicago Faculty Blog about DRM and its relationship to the history of asymmetrical vs. symmetrical copying costs. Picker's primary point is that:

"[W]e can use technology and design to help enforce laws. Doing so involves lots of choices, but the fact that limits are imposed hardly makes the products defective by design. We need to decide what rules we want—about speed limits and about control over copies—and then figure out ways to make those rules work in actual practice.

For further perspective on DRM and its regulation, readers may also wish to look at David Berlind's editorial, which may not in itself be a response to the protests but is nonetheless appropriate to consider here. David Berlind is no fan of DRM, which he refers to as C.R.A.P., but he takes the position that if DRM is here to stay that at least it could "have the decency to disclose to us sheeple [sic] what it's capable of doing or enabling." In particular, while Berlind does not go so far as to suggest imposing legal mandates about DRM, Berlind strongly advocates that DRM providers should be publicly transparent about the types of services they offer to both content providers and consumers.

Higher Education & Copyright Blog Moves

Lorre Smith has moved from her former blog, That Copyright Thing, to a new site and name. Copyright Resources and Current Issues, Smith's new blog, "specializ[es] in copyright issues that are important to higher education. Currently those issues involve open access and the current attempts in higher education to bring down barriers to access that copyright can enforce."

Lorre Smith also maintains Intellectual Property, Copyright, and Fair Use Resources, which is an excellent collection of useful links on copyright matters.

Drawing Distinctions Between Fair Use And Network Neutrality

Normally, one might see fair use rights in copyrighted works and the issue of network neutrality as distinctly separate concerns. Prof. Larry Lessig, of Stanford Law School, appears to think otherwise. In a recent post, Lessig examines whether being an advocate for one set of exceptions to property rights while opposing the other is ideologically consistent.

Canadian Copyright Reform and Privacy Rights

Michael Geist:

On the heels of the recent emergence of the CMCC, Canada's privacy community is today speaking out on its concerns with the prospect of copyright reform that provides legal protections for digital rights management but fails to account for the impact on personal privacy. Dozens of groups and individuals, including civil liberties organizations, library and education associations, and prominent privacy leaders such as former Privacy Commissioner Bruce Phillips (I have also lent my name to the letter) have sent a public letter to Ministers Bernier and Oda calling on the government to ensure that privacy factors in the copyright reform process.

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Canadian Copyright & Chocolate Bars

Excess Copyright:

The Supreme Court of Canada today granted leave to appeal in the very important case of Kraft v. Euro Excellence - in which Kraft had succeeded below in using s. 27(2)(e) of the Canadian Copyright Act to block the parallel importation of legitimate Toblerone chocolate bars contained in packaging for which Kraft was the exclusive Canadian licensee of certain copyrighted elements - unless the defendant covered up the offending elements with a sticker, which was done in this case. The defendant also had to pay substantial damages. One can easily imagine the ruling below being used in future cases to effectively stop parallel importation altogether of an enormous variety of consumer goods - on the basis of copyright in some artwork on a package. If this were to happen, it would be very bad news for competition and free trade.

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West Wing, Sappy Speeches, and Fair Use

University of Chicago Faculty Blog: University of Chicago Law Prof. Randy Picker has taken a look at a situation where a television segment borrowed phrases from another television show. In particular, Picker considers what this event means in terms of both plagiarism and fair use analysis:

For those of us who are West Wing watchers—my wife and I netflix it and just started season 6—[the copied line] immediately resonates. Fictional President Jed Bartlet, played by Martin Sheen, delivered that line in an end-of-episode speech, a line written by heartthrob speech-writer—this is fiction remember—Sam Seaborn, played by Rob Lowe. The NYT also quotes a second line read by Hammond and matches that with corresponding text from West Wing.

NBC has already conceded the plagiarism and has said that it will no longer accept work from the responsible freelance writer. Last week, I raised the question of the relationship between plagiarism and copyright’s fair use doctrine. What should we think of this situation?

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Plagiarism and Copyright Infringement

The University of Chicago Law School Faculty Blog: Professor Randy Picker has written an interesting post on how copyright infringement and plagiarism do not enitrely overlap. After citing several examples, he also considers whether enhanced damages are necessary "to compensate for the risk of not catching the infringer[.]" Picker appears to conclude that they are unnecessary since "[t]he fact that infringers will get caught means that reputation markets will have the chance to operate" and the result will be an increase in sales for the victims due to publicity over the plagiarism.

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