Technology and Business Law Blog

Fair Use- Lives!

It might be really outdated by now, but not linking to this Youtube video by the Israeli musician  Kutiman would be shameful for one who advocates fair use and borrowing of  pre-existing creative works to create something new! Several of my previous posts have been about loosening copyright law and arguing that these laws are outdated and do not hold much water in today’s digital world.

Enjoy the video as much as I did!!


March 25, 2009 Posted by | Copyright Infringement, Technology | 5 Comments

Copyright On Photographs

There has been a lot of buzz about the Obama image titled ‘Hope ‘ designed by Shepard Fairey, a Los-Angeles based street artist based on a photograph taken by Manny Garcia while working on a contract basis  for the Associated Press. So since it was taken by the photographer while being employed by someone, it will be considered a work for hire and the employer owns the copyright to the photograph, unless the photographer specifically retained the copyrights in writing or the employed assigned the rights over to the photographer.

In this case Garcia had no problem with Fairey using the photograph but the copyright owner, Associated Press did and so sued the artist for copyright infringement. The artist is being presented by Anthony Falzone, an attorney and the executive director of the Fair Use Project at Stanford University. Falzone claims that the use will fall under fair use. A similar issue was decided in the Blanch v. Koons case, in which part of a plaintiff’s photograph, was used by the defendant Koons where he had scanned in and modified by removing the background and changing the orientation and coloring. The court held that it was fair use of the photograph since it was ‘transformative’. The Center for Internet and Society at Stanford University has a peice on this ruling and can be read here.

Here is a small treatise on copyrights of photographs.

A copyright is a protection given to a creator of creative works, say a writer, musician or photographer who is credited as the creative party and allows the creator to profit from their work. It’s a set of rights granting to the author or copyright owner, the privilege of being the only one allowed to use that material. The owner of the copyright has the exclusive rights to sell, resell or produce the copyrighted material any way deemed fit.

A photographer owns the copyright to the photos that he or she takes, unless the copyrights were transferred to someone else or if the work was commissioned, then it would be a work for hire and the copyright belongs to the person who hired the photographer’s services. Making images of a photograph and distributing them implicates the copyright holder’s exclusive rights of reproduction, public display and public distribution.

Giving credit to the photographer is not a substitute for getting permission. A good practice would be to get permission and also give credit to the photographer.

As mentioned earlier the copyright holder has the right to reproduce the photos and that would include posting them on another website or homepage. The copyright holder also has the right to alter or change the photo/image and create a derivative work. Even if the copyright holder has given permission to use the image it does the give the user the right to change or alter the image by adding colors, or by other means. If the photo is licensed under a Creative Commons license then it may allow the user to change the image without permission form the copyright holder who would in this case normally be the photographer.

Fair Use

Under the Copyright Act, fair use of a copyrighted work, would be for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research and such uses are not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

Using the four factor test “fair use” is decided on a case by case basis. When it comes to using photographs without permission then it could be considered to be fair use if the use is for education, research, news reporting, criticism, in public interest or if the photos are transformative or used as parody.

Even if a small part or a portion of the photo is used it could still be considered infringing if that part is substantial. If the part taken is the heart of the work. It will vary on a case to case basis with no set rule as to how much is OK.

The presumption is that if the use is minimal and is not substantial and then it would be considered to be fair use as long as it is used for the purposes mentioned above.

In the case of Perfect 10 v. Google/ Amazon, it was ruled that thumbnail-sized photos (such as those used in Google Image Search results) was not infringing, because under the fair-use criteria, the small photo does not have an effect on the potential market or value of the copyrighted work. Similar result was reached in the case of Kelly v. Arriba Soft Corporation and the court held that defendants’’ use of plaintiff’s images as thumbnails in its search engine is a fair use.

In terms of display of a copyrighted photograph on the web, one would have to use all of the four factors of fair use and look into the nature of the photos, whether the photos are being used for a commercial or for a nonprofit educational purpose, the amount and substantiality of the portion used. If the images are used for commercial purposes then it would be hard to justify fair use unless the work is considered trans formative.

In Tiffany Design, Inc. v. Reno-Tahoe Specialty, Inc., Tiffany Design created a digitally altered photographic image of the Las Vegas strip. Reno-Tahoe Specialty produced a composite image of Las Vegas and included images of at least six buildings scanned and inserted from Tiffany’s work. The use of the images and the developments of the composite picture were to create a commercial product. The court held that Scanning and manipulating a highly creative work may be beyond the limits of fair use, especially if the ultimate purpose is to include elements of the original work in a commercial product.

If one is caught using copyrighted photos on their website without permission then the copyright holder can send a takedown notice under the DMCA provision of the Copyright Act, stating that the infringer photo needs to be removed from the website.

February 27, 2009 Posted by | Copyright Infringement | | 1 Comment

Pirate Bay Wins the First Round

I have been reading about the Pirate Bay court trial in Sweden, after all these years of hype and the public looking forward to a long legal battle, the trial has turned out to be a bit of an anti-climax right at the second day. The plaintiffs consisting of  the entertainment industry conglomerate, had accused Pirate Bay of assisting copyright infringement. To assist in infringement the defendant had to help distribute illegal files and the plaintiffs were not able to prove that, and as per the Capitol v. Thomas case heard in the U.S, making available cannot amount to distribution of copyrighted material.

Pirate Bay lawyer has held on to the old argument that  “To supply a service that can be used illegally or legally is not illegal.” Pirate Bay does not host any of the copyrighted material themselves but makes available file sharing BitTorrent technology to search and download files. BitTorrent technology though used for peer to peer file sharing can also be used for other non-infringing uses.

The prosecution  dropped charges relating to “assisting copyright infringement”, and focused on “assisting making available copyrighted content”, stating that “everything related to reproduction will be removed from the claim”. The reason for this was that the prosecution was not able  to prove that illegally distributed files had used the Pirate Bay site.

This is a real set back for the entertainment and software industry but a victory for people who believe in creativity and progress. Just as I have stated before, copyright is losing its grip and with the avalanche of new technology, copyright infringement issues will lose its meaning. Copyright infringement has happened from pre-historic times, when man started drawing figures on cave walls and will continue till the human race exists.

February 18, 2009 Posted by | Copyright and innovation, Copyright Infringement, p2p | | Leave a comment

Copyright Humbug

After a long break, I am back and I seem to have developed a writers block. It is funny that when you write on a regular basis thoughts and words flow easily.

I have been thinking about how the concept of copyright got started and after doing a some Googling, just as I had suspected it was a concept which was developed in the western world as early as the 1600’s. It is interesting that the concept caught on in the eastern world only in the mid 2oth  century. Copyright was started to protect the economic interests of artists but in my opinion there is no need to protect a creative process. Most creative works are and have been inspired from something that was already in existence.

Copyright protection is inefficient, unproductive and hypocritical. In the modern era, it protects the economic interests of business conglomerates who create monopolies. It mainly serves the needs of companies like Disney. In fact Disney is one of the companies that thrives on using creative material from every part of the world. For example, it takes ancient tales of Panchatantra, cheapens it, by changing the characters with westernized names and re-spins it out by copyrighting the tales themselves.

Art and the artist did survive and flourish before the copyright protection system was put in place. Taking India as an example, wonderful paintings, music, writings and other forms of art were created without anyone copyrighting them. They have been reused, embellished and new forms have been created out of the old and both the art and the artist thrived. Imagine copyrighting artistic works like the Taj Mahal, well maybe if it could have been done, (still by now would be in the public domain) then there would not be this so called replica Taj Mahal in Bangladesh.

It is interesting to note that some writing of Mahatma Gandhi will soon become part of the public domain and the trust that has the rights to these works will not be seeking to extend the copyrights, since Gandhi himself did not believe in copyright protection.

Each one of us in our everday lives infringe copyrights on an on going basis and if we start listing them, and there was a cop around each time to penalize, our everyday infringement will add up to thousands of dollars per day. In essence, copyright infringement will never cease and if anything will only grow with todays technology. Creative works are creations that should be enjoyed and be allowed to create other things based on them freely.

February 13, 2009 Posted by | Copyright, Copyright and innovation, Copyright Infringement | Leave a comment

Take Down Notices Don’t Work

In spite of all the DMCA take down notices sent to YouTube, copyright infringement continues to grow on the site and the infringed material stays for a while before it is taken down and during that time it is viewed by a large number of people across the world. The take down notices have not really had an impact on reducing copyright infringement and has not reduced piracy.

Smaller artists have been promoting their songs etc, via YouTube and it has served as a good advertising platform, so the larger media companies have joined the bandwagon and follow the saying, if you cannot beat them, join them.

Large Media companies have finally woken up and realized that they cannot fight the postings on YouTube and now let the infringing material stay on the Youtube site and have decided to use it as advertising material. That is good thinking to save money, energy and time and surely creating goodwill and promoting the posted material. Curt Marvis, the president of digital media at Lionsgate Entertainment, said  “We don’t want to condone people taking our intellectual property and using it without our permission,” “But we also don’t like the idea of keeping fans of our products from being able to engage with our content.” he said. “For the most part, people who are uploading videos are fans of our movies. They’re not trying to be evil pirates, and they’re not trying to get revenue from it.”

August 18, 2008 Posted by | Copyright Infringement, DMCA, YouTube | | Leave a comment

Artistic License Terms- Copyright Infringement

In Jacobsen v. Katzer, the appellant brought an action against the appellees for copyright infringement for not following the terms of the Artistic License while copying and incorporating materials from it’s website.

The District court had stated that open source Artistic License created an “intentionally broad” non-exclusive license which is unlimited in scope and thus did not create liablity for copyright infringement. The appellete court’s analysis was otherwise stating that the Artistic License and other open source licenses cannot be randomly copied and modified without following the terms set forth in the license.

In this case the Artistic License required that changes to the computer code be tracked so that downstream users know what part of the computer code is the original code created by the copyright holder and what part has been newly added and altered by another collaborator. The appellate court stated that a user who downloaded the JMRI copyrighted material is authorized to make modifications and to distribute the materials “provided that” the user follows the restrictive terms of the Artistic License.

The crux of the appeal was that whether the terms of the Artistic License are just actionable under breach of contract based on covenants or if they were breach of conditions enforceable under copyright infringement. The court held that the term “provided that” denotes a condition and under copyright law the conditions under an Artistic License are enforceable. and so the Artistic License terms were conditions enforcable copyright conditions.

August 14, 2008 Posted by | Contract, Copyright Infringement, Licensing | | Leave a comment

Bloggers and Copyright

Fair use is one of the most debated areas in copyright law. Recently in the limelight was the Harry Potter’s Lexicon litigation in which Stanford Law School’s Fair Use Project Defends RDR Books against Copyright Lawsuit Brought by J.K. Rowling and Warner Bros. Other fair use cases have been litigated by the Electronic Frontier Foundation (EFF) but the most recent fair use issue that grabbed the attention of people like me is the Associated Press (AP) sending DMCA take down copyright notices to blogger Roger Cadenhead of Doudge Retort.

According to AP it wants to “limit the amount of original content that gets copied” and the “use of content directly in the blog”. Blogging has become very popular since it allows anyone to put forth their point of view and share their thoughts out there and good blogs make interesting reading and creates a resource pool consisting of the community’s thought process.

Blogging and other journalistic pursuits thrive on the foundation of fair use based on voicing their opinion on other people’s literary creations. The trouble with fair use is that is overly broad and according to the Copyright Act of 1976, in determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —

1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

2. The nature of the copyrighted work;

3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

4. The effect of the use upon the potential market for or value of the copyrighted work.

Fair Use defense and its application will vary greatly depending on the facts and circumstances of the case, since there are no set standards and courts decide whether a particular use is fair or not on a case by case basis.

EFF had put forth has set forth legal guidelines and blogger legal liability issues on their website, and it is a good idea to get oneself familiarized with it while blogging.

In the world of blogging the copyright rules are minimally followed and on a particular day most popular blogs carry the same story and lot of the material is recirculated. The web is a bedrock of copyright infringement but interestingly if not for this one would not get to hear the different view points of people from various walks of life on the same subject matter. Copyright infringement makes journalism more alluring, vibrant, spiced up and interesting.

It does not matter how many DMCA’s takedown notices are sent or how many copyright infringement law suits are filed, now that the flood gates of the Internet have opened there is no going back or stopping of infringement over the Internet. The only solution is rewrite the copyright laws and accept the inevitable.

June 18, 2008 Posted by | Copyright, Copyright Infringement | | 1 Comment

Guidelines for Copying Copyrighted Music

There has been an ongoing argument and heated debate recently in various blogs about RIAA stating or not stating what constitutes copyright theft and if copying music and creating digital music as MP3 files from legally bought CDs is authorized or violates the law.

According to the CNET Tech news blog, what was exactly stated as illegal in the brief of the Howell case was that “creating digital recordings from CDs and then uploading then to file sharing networks” was illegal. The crux of the phrase was and uploading them to file sharing networks, now this was ignored and the first part of the sentence was given the main focus and debated on. This created a lot of confusion amongst the readers as to what is the bottom line and when does legal or authorized become unauthorized or illegal.

The blog p2pnet news has given some guidelines about the legality, or not, of copying copyrighted music and here it is:

Copying CDs

* It’s okay to copy music onto an analog cassette, but not for commercial purposes.

* It’s also okay to copy music onto special Audio CD-R’s, mini-discs, and digital tapes (because royalties have been paid on them) – but, again, not for commercial purposes.

* Beyond that, there’s no legal “right” to copy the copyrighted music on a CD onto a CD-R. However, burning a copy of CD onto a CD-R, or transferring a copy onto your computer hard drive or your portable music player, won’t usually raise concerns so long as:

  • The copy is made from an authorized original CD that you legitimately own
  • The copy is just for your personal use. It’s not a personal use – in fact, it’s illegal – to give away the copy or lend it to others for copying.

The above does give us some guidelines but I am sure this is not the end of the discussion.

January 3, 2008 Posted by | Copyright Infringement | Leave a comment

Get Educated On Copyright Law.

Copyright law issues are most commonly misunderstood or misconstrued and Copyright law and infringement is one of the areas where most people lack knowledge and do not educate themselves. When it comes to criminal law, tax, personal injury or most other fields of law people at least have a passing knowledge and identify what is right and what is wrong.

Copyright infringement has been taking place for decades but has been hard to police and take legal action but now with the digital and Internet age copyright infringement is easy to perpetuate but also easy to be identified and copyright infringement has taken over our lives. Common forms of infringement are in the areas of piracy of music, videos and software.

In 2003 the recording industry sued 261 music file swappers and stirred up a legal strom but most people settled out of court, this was a massive move to intimidate file sharing of music. A number of cases have been in the limelight but the first one to go on trial was the Jammie Thomas case in which the court held in favor of the recording industry.

I think if one gets educated on what is infringement and the defenses of copyright infringement like fair use and it’s limitations then most people will be able to tread more cautiously in this area. Talking of misconstruing the issue of infringement here is a lively discussion on Techdirt and RIAA vs People on whether ripping of a CD to their computer is infringement.

December 13, 2007 Posted by | Copyright Infringement | Leave a comment

Copyrighted Movies

With our lives being intertwined with the Internet the most common legal issues are related to copyright infringement and it could be in the area of movies, music, books, software or other art work. Here is an article about several Hollywood studios suing a Chinese online service Internet cafe called accusing them of offering pirated downloads of movies and the studios targeted “Pirates of the Caribbean”.

From customers can download movies and television series onto their computers. It is stated that pirated DVDs can be bought on China’s street for $1.00, but it is true of India too where pirated DVDs and books can be openly purchased for a fraction of the original costs and I am sure that is true of many other countries.

In fact one does not have to go to China or India just visit a local ethnic video store right here in the US and pirated copies of the latest ethnic movies will be available even while the movie is still playing in the theaters and the cost of renting them is incredibly cheap and the prints real good, and at times the store owner will nonchalantly state it’s a “fresh copy” just made!

Copyright infringement is all around us and in lots of our simple day to day activities too and the only crime is getting caught and lately the movie and music industry has taken a strong stance and have started suing the infringers.

November 23, 2007 Posted by | China, Copyright Infringement, Piracy | Leave a comment