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.

Sharing Media Content Without Infringing Copyright

If you cannot fight them then join them and if you can make money in the process nothing can beat that. A company called Digital Containers (www.digitalcontainers.com) introduced a new software that allows content owners to share, store and distribute copyrighted material over the Internet without losing control while providing monetization and metrics to the content owners.

The company provides ‘super distribution’ of online content for sharing digital media between consumers. According to the Washington Post article the way it works is that: Digital Containers works with media companies to “package” pieces of content, like an episode of “Lost,” in a container with an encrypted seal. As it’s passed from person to person, each new viewer that “unzips” the container agrees to either watch a few ads, or pay a few bucks, in exchange for getting premium content. When that viewer passes the container to another user, that person also starts a “relationship” with the media company that produced it. You may have to tell the company how old you are, or whether you’re male or female, which then helps to sell ads. Or, if you happen to share a lot of Jonas Brothers‘ songs with friends, Disney may want to give you a reward or incentive for spreading the music and helping to build the brand.

According to the company the way it handles the copyright issues are it legally licenses media from the copyright holders and therfore gains their permission to distribute their digital media, and then they digitally protect each copyrighted media file with copyright protection software or Digital Rights Management (DRM). DRM is the umbrella term referring to any of the several technologies used to enforce pre-defined policies controlling access to software, music, movies or other digital data. It distributes content by utilizing the different channels of the Internet like search engines, p2p, the web, RSS, blogs, social networks, IPTV, mobile etc and provides consumers with rich media experienc.

So unlike lots of other sites, their’s is not a website and it is a perfectly legal network marketing style distribution channel to share content.

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, http://w2.eff.org/bloggers/lg/ 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.

Demise of the Print Media

Steve Ballmer of Microsoft looks into his crystall ball and states that in about 10 years or so there will be no print media and everything will be in digital format. Here is what he says in an article in the Washington Post.

In the next 10 years, the whole world of media, communications and advertising are going to be turned upside down — my opinion.

Here are the premises I have. Number one, there will be no media consumption left in 10 years that is not delivered over an IP network. There will be no newspapers, no magazines that are delivered in paper form. Everything gets delivered in an electronic form.

New media with all this digitization has created numerous copyright issues and one is confronted with them on a daily basis. If there is only going to be an online media which could be accessed by everyone around the world then, does it not make sense to have uniform Intellectual property laws that would be applicable to the whole world? The concept of jurisdiction or forum would become less meaningful and then a set of courts adhering to the same IP laws will have to established around the world. In this age of IP infringement and the muddled state of the law in this area, this would make sense even if it sounds like a fantasy now.

Anti-Piracy House Bill

An anti-piracy bill was passed yesterday which is the Pro IP Act that was opposed by various lawyers and legal watch groups last year and labeled the “outrageously gluttonous IP bill ever introduced in the U.S.” http://www.washingtonpost.com/wp-dyn/content/article/2008/04/30/AR2008043003360.html?wpisrc=newsletter&wpisrc=newsletter

The bill, introduced in December by Rep. John Conyers Jr. (D-Mich.) and 17 co-sponsors and known as the Pro IP Act, is championed by a broad base of intellectual-property holders, including entertainment companies, auto parts manufacturers, drugmakers and unions. It now heads to the House floor, and advocates hope it will pass this summer.

In addition to creating the position of IP czar, the bill would amend federal copyright law to add resources to the fight against piracy and raise the ceiling on damages that could be awarded by a civil court to a rights-holder whose work had been pirated. Patry and others opposed a section backed by the music industry that has since been struck from the bill. Referred to as the “compilation clause,” it would have targeted users who illegally share music CDs, assigning penalties for each song pirated from a CD, rather than one penalty per disc.

Even though piracy is high in the U.S. it is insignificant compared to piracy of U.S. generated material in other countries like China and India. Even though anti-piracy laws are entacted in these countries, the real questions to be asked are, how effectively are these laws being enforced  and how is U.S. realistically going to stop piracy in these countries? The U.S. cannot go there are enforce it’s laws and all these bilateral treaties etc just look good on paper.

Rampant Piracy in Developing Countries

The IFPI — or International Federation of the Phonographic Industry — announced this week that it has filed legal proceedings against Baidu and Sohu, as well as Sohu’s associate company, Sogou. The group also named Yahoo China in a statement outlining its legal strategy to combat music piracy. IFPI also claims that more than 99% of music files distributed in China are pirated. Read here.

Piracy in a huge problem in most of the developing countries. It is not just related to music but extends to movies and books. India for example has all the necessary Intellectual property laws enacted and business entities can flaunt them to attract business projects but the reality is that there is no real enforcement of these laws. If one walks in any busy market street in major city in India, right there in the side walk shops you can openly find pirated movie DVD’s, music CD’s and bestselling author books sold for way less than what a copyrighted version would cost in a regular store. The quality is not so good but then there are places where if you pay a bit more you get a much better quality product which is pirated.

Even right here in the U.S. most of the ethnic stores make copies of the latest ethnic movies or music and rent or sell it out even before it is released in the theaters. It is a huge market and the quality is not bad, in fact the store owner will declare the print is of good quality just freshly copied! Fresh off the oven!!

No Joking, it’s Copyright

Copyright was and is meant to protect and promote creativity, but the latest fashion is that with the advent of the new media copyright is being used by all and sundry to inhibit creativity and the sheer joy of enjoying and appreciating all forms of art.

My son takes art lessons where the instructor always puts up a picture of a painting by a famous artist, a print or picture from a magazine, book or calender and asks the students to copy it and then instructs the students on the different drawing, painting or sketching techniques. Now the teacher, the students and also me as a parent ( since I am an accomplice) should be liable for copyright infringement. Now this and other social activities like singing in the public should be banned. Hey what about repeating a joke? No, you cannot do that, now this becomes a real joke.

Hello! soon we will all have to form secret societies and take oaths to just admire, appreciate, enjoy, laugh and sing otherwise the consequences could be lawsuits, fine and even jail time (can you sing and joke in jail?), watch out the sentence maybe doubled. I know it sounds ridiculous but this whole copyright infringement thing is getting to be ridiculous and “inhuman”. Inhuman because it is against the essence of being a human being- which means sharing, creating, encouraging, this is what sets us apart from other living species of this planet. Read William Patry’s blog on Jokes and Copyright.

No Copyright Infringement Here

Here is some refreshing news- the film Jackass 2.5 will be available for free viewing on-line between December 19-31. Stories like file sharing, ripping CD, illegal hosting and downloading raises issues of copyright infringement and piracy.

Paramount pictures have made a smart move by hosting the film for free even if it is only for a limited time, something like a sneak preview which will be supported by ad revenues. It could turn out to be a double win, apart from the ad revenue this could also create an advertising buzz for the film itself so that once the two weeks are over people will be paying money to watch it.

Authors and singers give away hard copies and digital format of books and CD’s for free which only creates more publicity for the creator. This is one solution to combating piracy for it’s the old saying “the more you give the more you get.”

DMCA Takedowns

“Here Comes Another Bubble” a video by the Richter Scales was removed from YouTube under the DMCA takedown provision. A video is removed from the YouTube site when YouTube receives a complaint from someone claiming copyright infringement. YouTube first reaction is to remove the “infringing” video and notify the person who put it up at the YouTube site, then it is up to the party whose video’s was removed to insist that they did not violate any copyright law and ask YouTube to put the removed video back on its site by sending a counter notice to YouTube stating that they have not infringed any copyright provisions or give the defense of fair use.

YouTube removes the claimed infringing material under the safe harbor provisions of the DMCA or the Digital Milliniem Copyright Act which allows online or Internet service providers to promptly take down alleged infringing copyright material without being held liable. Now this provision can be misused and anyone claiming to hold the copyright to the material hosted by the service provider can state infringement and have the material taken down. Now there are a list of provisions under the safe harbor provisions to be followed. Organizations like the EFF have taken up this misuse issue and filed a few cases, which can be read at their website and also chillingeffects.org has more information on the DMCA safe harbor provisions.

In fact EFF also suggests fair use principles for user generated content. If creativity is totally curbed under copyright restrictions then there would be no room for further innovation and improvisation and there would be no progress in science and arts.

Site Linking Illegal in UK

On-line website TV-Links a UK based site was shut down last week by the local police and the Federation Against Copyright Theft (FACT). What TV-Links does is that it provides links to TV shows and other videos posted on various video-sharing websites like YouTube or Google. The site by itself did not host any cpoyrighted content.

A FACT spokesman said that: “Sites such as TV Links contribute to and profit from copyright infringement by identifying, posting, organising, and indexing links to infringing content found on the Internet that users can then view on demand by visiting these illegal sites,”

This sounds real interesting since in the US in the recent Perfect 10 v. Google case the appellate court held that Google was not liable for copyright infringement for linking thumbnail pictures from Perfect 10’s site and the court held that Google’s use of the thumbnail pictures was “transformative” and considered it to be “fair use” under 17 U.S.C. Section 107 of the Copyright Act. The court stated that Google is operating a comprehensive search engine that only incidentally indexes infringing websites.

So if TV-Links was US based, I wonder how the US courts would view TV-Links activity. While linking is not a crime in the US, it is a crime under the UK IP law and would come under “facilitation” of copyright infringement. Since the copyright laws vary in different countries, a site considered infringing in one country can be shut down there but can be hosted in another country. 

Can downloading music and video on-line and file sharing be permanently stopped? Can piracy be stopped? No, once a site is taken down another crops up. RIAA’s shut down of Napster has not eliminated or even diminished file sharing. Tons of p2p programs are out there which makes getting copyrighted stuff a child’s play. For every site that is taken down dozens crop up and for every person who is prosecuted thousands go free.