Category Archives: free culture

So one might well wonder whether the copyright system creates sufficient incentives to avoid the bad behavior that was our target in the Shloss case, One so wondering should not forget the possibility of recovering fees, including legal fees. Here’s our motion filed this week, and an Ars Technica article that describes it well. Continue reading →

Following up on the earlier announcement, Carl Malamud has posted his letter to C-Span’s CEO, Brian Lamb. Continue reading →

The ever inspiring students at freeculture.org have launched a project to collect free music that can be included on the One Laptop Per Child (OLPC) machine. Continue reading →

You may have been reading about the recent spat involving C-Span and Speaker Pelosi over copyright and the Congressional Record. Well, longtime champion of many things great — Carl Malamud — has been building a bit of a hack to deal with at least part of the problem.

As he explains, video of Congress engaged in its official business comes in three flavors:

“1. the floor proceedings, which uses government cameras and
everybody (including c-span) pretty much allows folks to grab.

2. hearings that c-span does, which they tightly defend copyright on.

3. the stuff the committees puts directly on the web.”

Many of us believe that if C-Span wants to exercise control over the stuff it films — as it has in many documentaries I have helped with — then it’s time we find someone else to build a Congressional Record that “the people” can use.

Carl has been building a hack to do just that. As (1) has pretty much taken care of itself, and (2) requires Congress giving access to hearings to entities that won’t leverage that access into control (not likely anytime soon), he’s focused on (3). The current problem with (3) is that the content (filmed using government cameras, just as with (1)) is offered sometimes “live only,” and otherwise in a streaming format only. Carl has built some tools for “ripping all congressional streams starting with the house and posting them in a nonproprietary format for download, tagging, review, and annotation at Google Video and another copy at the Internet Archive.”

Read more at Boing Boing.

But all this raises a much more fundamental question.

As more and more “notice and take-downs” get directed at people doing political remixes of candidates and their speeches, it’s time for a candidate to take the lead to assure that the web can be used for politics (without the mess of copyright). What about a pledge not to appear on a program that won’t promise not to prosecute people who do remixes (as opposed to simply distributing the whole show)? (That’s three negatives in one sentence — go slowly.)

Let’s see who is really for (and who has the courage to support) freeing political speech. Continue reading →

Yesterday, in LA, in partnership with the insurance company, Media/Professional, and LA lawyer Michael Donaldson, we (the Stanford CIS Fair Use Project) made a major announcement. In my just about 10 years working on these issues, this is the most important announcement yet.

As reported just over a year ago, American University’s Center for Social Media released the Documentary Filmmakers’ Statement of Best Practices in Fair Use. This fantastic report outlines principles to guide filmmakers in the fair use of copyrighted material in their films. It was an important step towards helping to clarify this unruly area of the law.

Working with Media/Professional, and Michael Donaldson, the Fair Use Project has now found a way to insure films that follow the Best Practices guidelines. For films that are certified to have followed the Best Practices guidelines, Media/Professional will provide a special (read: much lower cost) policy; Stanford’s Fair Use Project will provide pro bono legal services to the film. If we can’t provide pro bono services, then Michael Donaldson’s firm will provide referrals to a number of media lawyers who will provide representation at a reduced rate. Either way, filmmakers will be able to rely upon “fair use” in the making of their film. The Fair Use Project and Donaldson will defend the filmmakers if their use is challenged. Media/Professional will cover liability if the defense is not successful.

This is a huge breakthrough. As many of us have been arguing, the real constraint of fair use comes not from the courts, but from those in the market who are trying to avoid any risk of copyright exposure. This market-based solution will now clear the way for many films to be released which before could not secure insurance. And we are eager to use the inevitable cases that will emerge to solidify the fantastic Statement of Best Practices developed by the Center for Social Media.

The project has an advisory board: filmmakers Kirby Dick, Academy Award-nominee Davis Guggenheim, Arthur Dong and Haskell Wexler; professors Peter Jaszi and me; and intellectual property attorneys Michael Donaldson and Anthony Falzone.

To remix a bit EFF’s slogan: Fair Use’s posse just got a whole lot bigger — and with insurance now to boot. Continue reading →

I love examples where ontology is necessarily trumped by epistemology. The Richards case is one of those.

On Letterman, Richards says he’s not a racist. Is that possibly true?

Well sure. He’s a brilliant stream of consciousness comic. That requires constantly putting your head into the heads of the audience, and tweaking it. He blows his top, and then begins to watch himself and the scene through the eyes of the audience. He sees them see him and his targets — two African Americans. He then gives voice to what at least some in the audience are likely — he believes — to believe: all the racist stuff. And then he sees that no one would see him as expressing anything except his own ideas, and he’s trapped. He shuts down, and leaves the stage.

All possibly true. But totally impossible to credit. Even if true, no way for us to know it’s true. Look for examples like this. There are millions. Continue reading →

Check out this video titled, “Charles Nesson is Insane“. I dedicated my first book to Charlie. Each year I mean it even more. Continue reading →

(But first, yes, I am so sorry about the aol-crap player. I posted the last post as I was rushing out, and didn’t realize the proprietary junk till I got home to show my wife on her computer. It is one of the very great things about the real video services out there — YouTube, etc. — that they embarrass the creaking 20th century giants (AOL, e.g.) by showing them that you can run a video service that any computer can run, without the insanely badly-coded platform specific proprietary stuff that marked video 1.0. )

Yesterday was a real transparent society day in my house.

My kid’s been sick, and was really wound up. So as a deal to get him to take his medicine, I promised him we’d look for Donald Duck on the web (yea, I know, but he loves Disney. And anyway, have you watched Bambi recently? No major media company could release content like that today. It’s brilliant: the single evil element in the film? Man. It would be FOX-ed out of existence were it released today.)

I had just shown my wife the Michael Richards clip. And my son and I then tripped on a Donald Duck video. It was 7 minutes of Donald Duck as a Nazi. Someone had uploaded to YouTube (god bless that company) an off the air recording of this war time Donald Duck cartoon that of course you could never buy today from the current copyright owners. Update: I was totally wrong (and unfairly so) about this. As pointed out in the comments, this cartoon is available here.

Then, before bed, I wandered a bit more through the Michael Richards story, and found this insane thread at CNN of comments by people about the Richards event. Unvarnished America, teaching me more about my country in 5 minutes than 40 hours of TV would ever teach anyone.

And then finally, the announcement by FOX that it was pulling the OJ Simpson book/show.

So add it up:

Elements of the 21st Century/Transparent Society: Richards tape, Donald Duck revealed, CNN thread — in each case, access to something that the 20th Century would have filtered out for appropriateness. My evidence for that?

Elements of the 20th Century/proprietary (in two senses of the word) society: FOX pulls the inappropriate OJ stuff.

I’m not pushing to one side or the other here. Just notice how these fit together. Continue reading →

There are few moments that crystallize as well just how the 21st Century could be different: Watch (if you have the stomach for it) Michael Richards, aka “Kramer” from “Seinfeld” lose it in a career-destroying way. It’s time to re-read David Brin’s fantastic book, The Transparent Society, for it has a salience today that would have been missed when it was published. Continue reading →

From the comments in the previous post:

jh asks: “yep re opt in v opt out, but also now covers use/access v copy/distribute,also now covers resale of information where it didnt before, second hand books offline. now used against users of information, was more traditionally about competing publications. What are the contours specifically?”

A hard question, potentially, though I don’t think it would be much trouble in practice. The test is “traditional contours of copyright protection” and Eldred itself illuminated the test. There the Court found that Congress had always extended existing terms when it had extended future terms. That constituted a “traditional contour.” So too with these — Congress has made different judgments about scope over copyright’s history. I would think all these were continuous with those. In my view, the test is discontinuity about some significant aspect of copyright’s tradition. Difference in kind, not degree — though of course that line is not self-executing.

Paul Campbell notes: “The Appelants’ brief link failed – 404”

Yea, sorry, the briefing in this case is so old, that a bunch of links were broken (and a bunch of the facts were embarrassingly out of date: e.g., we reported with pride that there were 5,000,000 blogs online. I cringed when I read that. The number now is probably 10x that).

I’ve been a strong supporter of not breaking up the 9th Circuit, having been convinced by Judge Kozinski that it would be a mistake. But the experience of this argument has not confirmed that judgment for me. Our case was fully briefed in April, 2005. Argument was set 19 months later. And unlike the other courts I’ve seen, these judges seemed overwhelmed with work. In the 10th Circuit (and DC Circuit for that matter), it felt as if the court had all the time in the world to understand the case being argued, and to prepare for the argument. In the 9th, it felt as I’m sure it too often feels to my own students with me: sure, I’m hear to talk and listen, but it’s obvious to everyone that I’m overwhelmed. Early in the morning, lawyers lingered as the red light came on. By the end of the morning, “your time is up” came before the light turned red.

Here’s almost the final version of the opening brief. I don’t have the final version on my machine, but I’ll get the link fixed.

Also fixed over the weekend was the original site where people had submitted stories about how the orphan problem affected them. They are a great read. This was long before the copyright office’s own orphan work proceeding. My favorite are the (repeated) examples of people who can’t get old photos of loved ones copied, for memorials or funerals, because of the policy of Kinkos and others not to copy professional photos without clearance from the copyright owner — even if the photo is 50 years old.

Our point was that this “burden” created by the opt-out system was never considered by Congress, and burdens substantially more speech than necessary to advance the government’s legitimate aim. The latter point we could argue about. The former is undeniable — as the burden is only realized with the emergence of the Net, and all the changes in law we changes that predate the Net.

anon writes: “So … How did it go today? What kind of questions did the court ask?”

It’s not in my nature ever to feel happy about an argument, but the questions were interesting. The panel was Chief Judge Schroeder, Judge Farris (who famously had worked with the researchers to produce the evidence the Supreme Court relied upon in Brown v. Board of Education to show the harm segregation had caused), and Judge Rawlinson (who, because of a family emergency, appeared via video).

Judge Schroeder asked the questions. She seemed focused on understanding how this case was different from Eldred. My reaction to that question felt much like it feels to have someone say your children look the same — to you, they couldn’t be more different, but to others, of course they look the same.

As I tried to explain, the differences are two — both the substance of the statute challenged, and the rule under which it was challenged.

Substance: In Eldred, we challenged the extension of existing terms — a practice the Court found to be “traditional,” in the sense that Congress had always extended existing terms when extending future terms. That tradition meant, the Supreme Court held, we didn’t get any heightened review of the change. (It was, in other words, within “the traditional contours of copyright protection.”) If Congress had always done it, then no punk law professor was going to question it now.

In Kahle, we are challenging the shift from an opt-in to an opt-out copyright regime — perhaps the most fundamental change in the history of copyright law, not supported by a tradition, but instead a radical change from a 186 year old tradition.

Rule: Eldred was the first case to challenge a copyright statute on the basis of the First Amendment. We therefore had very little precedent to rely upon, and thus simply asserted that as a regulation of speech, any copyright statute must be tested under the First Amendment.

In Kahle, we actually had some precedent to rely upon: Eldred. As explained before, while the Court rejected our request that copyright laws generally be subject to ordinary First Amendment review, it also rejected the government’s request that they be deemed to be “categorically immune” from First Amendment scrutiny. Instead, the trigger for First Amendment review of a copyright statute is now, under Eldred, whether Congress has changed a “traditional contour of copyright protection.”

We argued the change from an opt-in to an opt-out regime was such a change — it is traditional (186 year old tradition), and if anything is a defining contour of copyright, this was. The government argued that the only traditional contours were the “traditional First Amendment safeguards” identified by the Court before — “fair use” and the “idea/expression” dichotomy.

The real problem with the government’s position — a point I really tried to make clear again and again — was that it was precisely the same position the DC Circuit had adopted in Eldred, and which the Supreme Court in Eldred explicitly rejected. Put differently, if the only “traditional contours of copyright protection” are the idea/expression dichotomy and “fair use,” then the Supreme Court’s rule in Eldred would be exactly the same as the DC Circuit’s rule in Eldred. And only problem with that interpretation is that the Eldred court explicitly said the DC Circuit’s rule was wrong: “We recognize that the D.C. Circuit spoke too broadly when it declared copyrights “categorically immune from challenges under the First Amendment.” 239 F.3d, at 375.” So if the DC Circuit “spoke too broadly” it is hard to understand how the Supreme Court’s rule could be the very same as the rule the Supreme Court rejected.

I do have one regret about the argument. That is that I didn’t have the chance to respond to the government’s criticism of our saying the District Court decided the question of whether the change from an opt-in to an opt-out regime was a change in a “traditional contour of copyright protection” on the basis of “intuition.” The District Court had held formalities were “mere formalities” and could never rise to the level of a change in a traditional contour.

The government suggested we were being disrespectful in referring to the judgment as grounded in intuition. But that’s precisely what it was based upon. She permitted us no opportunity to introduce evidence about the significance of the change. She decided the matter on a motion to dismiss.

I fear the same intuition is not limited to the lower courts. We were complaining about “orphan works” and the problem orphan works creates. It’s easy to imagine this is an isolated problem. But think, for example, about the Google Book Search case (or watch my preso about it here). Of the 18,000,000 books Google wanted to scan, 16% are in the public domain. 9% are in copyright and in print. And 75% are in copyright, but not in print. Now while that 75% is not technically “orphaned,” for purposes of the Google Book Search Project it is effectively orphaned. If Google must secure permission for the 75% even simply to enable search, the project is a bust. For because these books are out of print, it is practically impossible to track down the current owners of these copyrights.

Were the property system we call “copyright” more efficient — if you could easily know who owned what — then many of the problems the Internet creates (read: many of the opportunities the Internet creates) would be lessened. Or so we would try to demonstrate if ever a Court permitted us to offer evidence about the burden on speech of a 1976 regime in the 21st century.

We’ll see. I’m flying back to Berlin to return to my sabbatical, and to a sick boy. Willem hasn’t yet adjusted to the cold of beautiful Berlin, and no spouse should have to adjust to suffering a sick child alone. Continue reading →