Spring 2008, Jan 31 25-EP, room 711; 7:00-9:30 Thursdays Read: chapter 2, up through page 54 darknoisetechnologies.com Compare file-sharing to "phone phreaking" ================================================================================ ================ Summary: copyright is a sort of governmentally recognized right of posession, and it can be bought and sold, so in that sense is property. But if a copyright is a form of property, then it is a very limited form, and any analogies drawn between a copyright and personal property are very suspect. Fair Use is not an encroachment on ones copyright; it is a fundamental part of the deal. So is expiration. Furthermore, the public has a right to petition to DIMINISH the copyright holder's rights. There is no analogy with other forms of property; the public has rights too here. (Well, the public CAN act to diminish real (land) property rights, through easement, taxation, environmental constraints, access, zoning, etc, and maybe there are cases where personal property can be so reduced. But generally these cannot be done "after the fact" without severe complaints of injustice, and/or demands for "compensation".) ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ Forms of Intellectual Property recognized in the US: copyright, for creative works patent, for inventions special rules for industrial design patents trademarks trade secrets ===================================== Details of US Copyright law: Covers books, movies, audio recordings, paintings & drawings, live TV broadcasts, theatrical performances, etc. [bcasts covered 1976] Sound recordings were brought under Copyright in 1972. But coverage was retroactive, and now lasts until 2067. So there are NO public-domain sound recordings, and probably won't be in your lifetime, unless the creator put the recording there. Rules for theatrical performances are tricky: these are ephemeral performances! Videotaping a performance may violate actors' rights. Usual issue is rights of the DIRECTOR. Different categories may be subject to different rules Copyright is held by creator unless: Sold the work is a Work For Hire Covers *expression*, not content. Famous case Feist Publications v Rural Telephone Service: (Feist v Rural) (1991, Justice O'Connor) phone book is NOT copyrightable. (some European countries DO have "database protection") Gaak!! Recent _Da Vinci Code_ case: (actually filed in England, which has different laws): authors Leigh & Baigent of _Holy Blood, Holy Grail_ about Mary Magdalene can NOT sue for ideas used in _Da Vinci Code_. 1988: US signed Berne Convention treaty. 1989: passed law implementing Berne changes Since then, it is NOT necessary to register copyright or even to mark works eg "copyright 2007 Peter Dordal" [1989 law *may* have limited "statutory" damages to registered cases] Berne group became WIPO, World Intellectual Property Organization, a subsidiary of the UN WIPO: one-state-one-vote + north-south divide => rules harming interests of poor countries were blocked. Example: pharmaceutical patents As a result, some international IP agreements are now under the jurisdiction of the WTO (World Trade Organization), which the first-world nations control more tightly. Who has jurisdiction over IP law could be HUGELY important: 3rd world is AGAINST tight IP law 1st world is FOR it (at least governments are) Brief comment on treaty law: A judge will work harder to find a way not to overrule a treaty, than to find a way not to overrule an ordinary law. Five rights: reproduction derivative works distribution public performance public display Good-faith defense protects schools, libraries, archives, public bcasts limits statutory damages to $200 IF infringement was "reasonably believed" to be fair use. Note that if you buy a copy, you have right of private performance (so to speak; there's no special recognition of it), but not public. FAIR USE US-only. See below First Sale doctrine: after YOU buy a copy, you can re-sell it. Copyright law only governs the "first sale". Who owns the copyright? The creator, unless it is a "work for hire" or the copyright is sold 1997 NET (No Electronic Theft) act: in 1994 David LaMacchia ran a "warez" site as an MIT student. He did not profit from the software downloads. Because of that, the government lost its case against him. The NET act was passed by congress to address this in future cases. It criminalizes NONcommercial copyright infringement, which until then hadn't apparently been illegal. (Copyright owner could still go after you). mp3 file sharing had not yet become significant. Also, Dowling v United States: Dowling ran a bootleg record company, as an Elvis fan. SCOTUS agreed with his claim that what he did was not "theft" in the sense of "interstate transportation of stolen property", or fraud in the sense of "mail fraud". (Copyright-infringement conviction still stood) ===================================== ===================================== ===================================== DMCA Extends copyright to boat hulls. Who paid for *that*? Implements WIPO treaty PROVIDES LEGAL SUPPORT FOR COPY PROTECTION Provides (severe) penalties for even SPEAKING about circumvention (eg supplying online explanations); called 'anti-circumvention measures' [We will return to these later under the topic "rights of computer owners"] Provides LIMITED exceptions for those doing "legitimate" security research. Mandates macrovision-brand copyprotection for VHS tape Allows petitioning the Library of Congress to approve exceptions to the anti-circumvention rules; in cases where these have seriously impacted *non-infringing* use. Examples: when equipment to support the anti-circumvention measure (eg dongle, certain disk drive, certain hardware platform) is obsolete. Contains OCILLA: Online Copyright Infringement Liability Limitation Act protects ISPs from claims when users put up infringing material. Establishes legal framework for "takedown notice" Also for "putback notice", but there are more stringent rules for the latter. Who is Loyola's Takedown agent? Summary of Takedown/Putback process Takedown request must have * description of infringing material * good-faith claim that use is not legal * sworn statement requestor is authorized to act by copyright holder ISP must take down material "promptly", and notify the user. Putback: * description of material * good-faith claim use *is* legal, subject to perjury * acknowledgement of court jurisdiction ISP then can put material back after 10 business days (to give original complainant time to file a lawsuit). If suit is filed, material stays down. Does NOT protect end-user in any way; in fact, it puts burden on end-user. Does protect ISP Also specifies rules about subpoenas to ISPs for end-user identity Why do you think blackboard is so popular? Hint: not because it's easy to use. ===================================== ===================================== =========================================================================== Fair Use Legal basis for fair use One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords. This right is subject to certain limitations found in sections 107 through 118 of the copyright act (title 17, U.S. Code). One of the more important limitations is the doctrine of "fair use." Although fair use was not mentioned in the previous copyright law, the doctrine has developed through a substantial number of court decisions over the years. This doctrine has been codified in section 107 of the copyright law. Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered "fair," such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair: 1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes; 2. the nature of the copyrighted work; 3. 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. Question: does the First Amendment imply some sort of fair-use right to quote other works? More often, Fair Use is seen as following from the "to promote useful knowledge" social-contract justification under the Copyright Clause of the Constitution. Standard example is quotes used in a book review. Such quotes are essential to provide an example of the author's style, which may be a central issue in the review. However, asking permission clearly sacrifices the critic's impartiality. Item 1 is traditionally used to justify all photocopying by schools, but this is clearly overbroad. PARODIES are also often considered as an Item 1 fair-use exemption, although you should be parodying the work in question and not just using the work in a parody of something else. Item 2 refers to whether the work is nonfiction or fiction, etc Fundamental news facts (eg images from the Zapruder film of the Kennedy assassination) have been ruled "fair use" Item 3: "one chapter" is probably way over the fair-use boundary. Quoting 400 words from Gerald Ford's biography was ruled not fair use. Music sampling. Item 4: Sony v Universal: supreme court 5-4 decision apparently legalizing taping of TV programs for later viewing (but NOT archiving): Universal did not show how it was damaged. Introduced doctrine of SNIU, Substantial Non-Infringing Uses a distributor cannot be held liable for users' infringement (that is, for contributory infringement) so long as the tool is capable of substantial noninfringing uses. MGM v Grokster: Introduced doctrine of copyright inducement See w2.eff.org/IP/P2P/p2p_copyright_wp.php 1. Inducement: "[O]ne who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties." 2. Contributory infringement. Contributory infringement is similar to "aiding and abetting" liability: one who knowingly contributes to another's infringement may be held accountable. 3. Vicarious liability. Vicarious liability is derived from the same legal principle that holds an employer responsible for the actions of its employees. Applies to ISPs ??? "Filtering" argument: if an ISP fails to implement blocking or filtering, they have vicarious liability. ===================================================================== John Perry Barlow - Founder of EFF and lyricist for The Grateful Dead Noted cyber-libertarian "leave the net alone" "The bottle was protected, not the wine": printing was protected, not content. That can't be the case any more. Barlow: "copyright worked well because, Gutenberg notwithstanding, it was hard to make a book." No mention of Lessig's idea of "changing the code" ASCAP is an utter failure [it really *is*] Does it MATTER that ASCAP is a failure? ASCAP: collects on behalf of all members, = original songwriters. To perform, you need a license from ASCAP, BMI, & third one (SESAC?) Even if you write your own songs and perform only them, you still may need these licenses! While that sounds appalling to some, it's based on the not-implausible idea that the nightclub/venue where you play is the entity to actually pay the fees, and *they* have no guarantee you won't whip out an old Beatles song. [Richard Hayes Phillips, a musician who plays only his own and traditional material, did apparently beat BMI here.] Blanket performance licenses are generally affordable, though not negligible. You need a license to play recorded music at public places, too. You do NOT get this right automatically when you buy a CD. ASCAP collects your money, keeps about 12-20%, and sends the rest off to its members, IN PROPORTION TO THEIR RADIO PLAY. So, if you play music no longer found on the radio, the original songwriters will get NOTHING. ASCAP, BMI are very concerned about new ideas. They want to keep the rigid division between listeners and performers, and between public & private listening. They are very concerned about web radio, and have had reasonable success in making it unaffordable for any but commercial stations with traditional formats. ============ "Wave" theory [Toffler] 1st wave: agriculture; needed legal rules for LAND 2nd wave: manufacturing; needed legal rules for capital & labor 3rd wave: information Performance model: is this realistic? How would it work for music? RealNetworks model Service model applies to doctors, lawyers, teachers, etc could it ever apply to music & film? Crypto bottling: using technological means to establish copy protection Is this really feasible? Open-source problem Did early copy-protection lead to current raft of abuses? 50-year predictions: * do we really have to unlearn what we "know" about IP? * relying on ethics AND technology??? * why isn't encryption more available? Will it actually help AT ALL? * relation rather than possession? Continuous rather than sequential? Is Barlow -- need delicate way to say this -- quite ok? * Even "verbs rather than nouns" is hazy. [omit?] Hacker Ethic [p 22] v Ten Commandments of Computer Ethics [p 23] Technological Progress ---------------------- Life with Napster quote: pp 25-26 Is there really a Dark Side? Or has technology [broadband Internet] made that irrelevant? p 27: William Mitchell, dean at MIT: books are "tree flakes encased in dead cow" Charles Mann: "who will curl up with a computer in bed?" What did iPod do to this sentiment? H&I was written in pre-iPod world ===================== David Post & Jefferson's moose: interesting metaphor We need to open up to new ideas Touretzky DeCSS site: Music and Software RENTAL From copyright.gov/reports/software_ren.html: On December 1, 1990, President Bush signed into law the "Computer Software Rental Amendments Act," an amendment of section 109 of the copyright law, prohibiting the rental, lease, or lending of a computer program for direct or indirect commercial gain unless authorized by the owner of copyright in the program. Behind the amendment was a concern that commercial rental of computer programs encourages illegal copying of the rented programs, depriving copyright owners of a return on their investment and discouraging creation of new works. [first-sale doctrine is voided, for SOFTWARE ONLY] parodies: South Park Weird Al www.xkcd.com/c78.html Bored of the Rings wondermark.com wondermark.com/wm_stripdoc_index.html I'm not sure how many, if any, of the primary wondermark cartoons are actually redraws. But there's some redraws in the links. ==============================================================================