Post Category → copyright/fair use

Insanely Inadequate

David Weinberger on copyright in 2012.

I think our current copyright system is insanely inadequate for the new ecology, and that it has the opposite effect that its best-spirited defenders want it to have: the current copyright laws (and mindset) are impeding the greatest cultural flowering in our history, and if those copyright laws are taken to their proposed maximum, they will kill culture dead.

He goes on to discuss how he and the musician whose post inspired his comments both depend on copyright to make a living (at least part of it) but still believe the system is broken.

Slightly off the topic of our screwed up intellectual property system, I’m in the middle of reading Weinberger’s new book Too Big to Know and highly recommend it. It’s an interesting read about how information is moving beyond an expert-driven system to a world of knowledge where networks are the experts. For those of us in education, his ideas have many implications.

Tales of True Crime

I committed a crime today.

I copied a program from my DVR to a DVD. Later I’ll rip the video and put it on my hard drive. Would that be two offenses or just an extension of the first?

Anyway, I’m sure many people would say that what I’ve done is not an illegal act. After all, the copy is for my personal use and I have no intention of selling or giving the recording to anyone. Wasn’t that issue settled by the courts decades ago?

Besides, in my defense, I did try to buy the show. I checked the store section of the network’s web site, as well as Amazon, iTunes and a variety of other outlets for this kind of material.

I even wrote the network, asking if they were planning on offering the program in the future. The only response was a form message thanking me for my interest in their products and saying the title “was not on our release schedule”.

Although I certainly don’t believe what I’ve done is a crime, I suspect the MPAA (and maybe the copyright owners) would disagree with my logic. Those lobbying groups for the video and music industries are working hard to stop anyone from using media in any way except the way they prescribe. Want that disk on your iPad? Pay us again.

However, beyond all that, my flirting with criminal activity is one small example of how the content owners have caused many of their own problems in the digital age, screaming to anyone who will listen (usually the people they’ve bribed) about the billions they’re losing from piracy.*

In an age when many networks are promoting the digital version during the program (“Download tonight’s episode on iTunes!”), and digital distribution costs a fraction of what’s being charged, it’s hard to understand why this particular program isn’t available, now weeks after it’s initial broadcast.

Now, I’m not one of those who feels a “smug sense of entitlement” to illegally download anything ever produced. Like the vast majority of consumers, I’m only asking for access to media when and where I want for a fair price.

In many ways, the convoluted and antiquated business models of the media distributors are cultivating the piracy proclivity in their customers.

*A claim that’s been challenged multiple times, including this good analysis.

Who Owns That Book?

PBS’s Media Shift blog discusses that question, which has been come very complicated in the age of digital books.

Analog books are simple: pay your money and ownership transfers to you.

More importantly, you have the right to resell the copy (love used bookstores!), give it to someone, loan it (the founding principle of libraries), or even rent it (if you can find willing customers).

It’s all part of copyright law and even has a name: the first sale doctrine.

The ruling in Bobbs-Merrill Co. v. Straus was subsequently codified in what is now Section 109(a) of the Copyright Act, which states that “the owner of a particular copy or phono record lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phono record.”

You would think the same principal would apply to digital copies of the same materials.

However, are you the owner of that digital copy of Stephen King or are you leasing the right to use it from the publisher?

Section 109(a) doesn’t define the seemingly simple term “owner” in this context and big publishers see in that an opportunity to apply the concept of pay-per-view (or per read in this case) if they can get away with it.

When software, music, and other media people think they own is added to the mix, the result is a giant copyright mess now being hashed out in the legal system.

As much as I like the iPad, Kindle and similar digital readers, this issue of not being able to easily share a book is the primary reason why I’m reluctant to pay for ebooks from Amazon, Apple and others, and canceled my Audible audiobook account several years back.

It’s also why schools and libraries, not to mention anyone who likes being able to pass along a good read (listen?) to friends and family, need to look very carefully at what they’re actually getting for their money when they decide to go digital.

 

 

Watch This

From the TEDxNYED event this past Saturday in New York, one of my favorite big thinkers, Lawrence Lessig with an excellent presentation on openness and the remixing of culture.

Although the theme of this great set of talks was supposed to be education, even in the broadest sense Lessig never really makes the connection.

So, it’s up to you. Every educator needs to understand how our intellectual property laws are making unwitting criminals out of our most creative students.

Fixing Fair Use

There’s a good reason why most educators don’t understand US copyright law, especially the Fair Use provisions.

Current fair use law is hazy by design; instead of laying out specific use cases, the law relies on the famous “four factors” about the purpose of the use, the nature of the copyrighted work, the amount borrowed, and the effect on the value of the original work. This can be maddening in many situations, because it is impossible to know in advance if a particular use qualifies.

Clarifying and strengthening fair use is one of the five major goals of Public Knowledge’s proposed Copyright Reform Act.

The current law provides for seven purposes in which fair use applies: “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.”

Among other changes, PK suggests adding three other areas: “incidental uses, non-consumptive uses, and personal, non-commercial uses.”

Incidental uses “involve capturing copyrighted works, where the copyrighted work is not the primary focus of the use–for example, capturing music playing over radio when filming a family moment.” Incidental use is hugely important to documentary filmmakers, for instance, who routinely capture copyrighted photographs hanging on walls or copyrighted shows playing on televisions in the backgrounds of their shots.

The second category, non-consumptive uses, “do not directly trade on the underlying creative and expressive purpose of the work being used.” In other words, a non-consumptive use might take the complete text of the novel, make a copy of it, but use it only as the input for a lexicographical analysis of style, not to produce a free e-book.

But it is the third proposal that might prove most controversial. “Personal and noncommercial uses” are said to “have little chance of harming copyright holders. At the same time, they are ubiquitous: every day we timeshift television shows via TiVo, create mix CDs for the car and iPod playlists to the gym, backup up our computer hard drives, and read books to her children before bed.”

Considering all the confusion over what the law allows us to do with media under fair use, not to mention the increasing number of law suits largely designed to intimidate average people from exercising their rights, these extensions and clarifications only make sense.

Unfortunately, big media companies will probably fight it with every dime they can find.