A Dozen and One Things You Need to

Know(about copyright)

Rogan Hamby Manager York County

Headquarters Library

Reference / Outreach /

Circulation / Collection

Development

Still a Systems Librarian

rogan.hamby@yclibrary.net

Title 17 www.copyright.gov/title17/

Relies heavily on judicial interpretation

Extremely busy field

This is only thirteen arbitraryelements of current eventswith a bias towards libraries

Depends heavily on legislative intent

Disclaimers

I’m going to skim a lot. There is easily content I am going to skip over that could make another twenty hours of presentations so I apologize in advance.

IANAL should be IANACL or I Am Not A Copyright Lawyer. Most Lawyers are not Copyright Lawyers.

Put five copyright lawyers in a room and you’ll get at least seven different opinions. This is why the courts are so busy.

If I sound like a nut case alarmist it’s only because I care.

1

Fair Use Is Resilient

Section 107, Title 17Limitations on exclusive rights: Fair use

Broad and highly open to interpretation

The principles derive from the opinionsof Joseph Story, Folsom v. Marsh (1841)

Was only common law until Copyright Act of 1976(Statute of Anne, 1709)

Basics“for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright”

To be considered:

(1) The purpose and character of use, commercial or for non-profit education

(2) The nature of the copyrighted work(3) The portion used in relation to the copyrighted work

as a whole(4) The effect of the use upon the potential market or

value of the copyrighted work

A Legal Defense Judges must consider the elements of fair use but

will decide case by case what applies and doesn’t

This is being contested constantly right now from ring tones to scholarly papers

May 2012, Cambridge University Press, Oxford University Press and SAGE Publications vs. Georgia State University – 99 counts of infringement, found only 5 in favor of the publishers

Took four years and ruling was granular analysis in 350 pages

2

The Library Is Protected

Section 108 of Title 17 provides limitations on exclusive

rights of reproductions to protect libraries and archives

8,440 characters long

The legend that you can make one copy rule has

caveats

o Items must be open to public or specialized researchers

o Must provide copyright notices if not already present

You can make three copies under very broad criteria!

o You can do this for lost, stolen, or format is obsolete

Exemptions to copyright

would bea presentation in it’s

own right!

3

The DMCA Is Useless

A number of library specific exemptions but most are pretty useless

The temporary copy exemption only applies to circumventing protection mechanisms not to copying the work, i.e. DMCA not Title 17

The infamous “photocopier” rule and knowledge of willful infringement

4

© Has Geographic Boundaries

Laws still vary widely nation to nation as to scope covered and penalties

Enforcement varies widely nation to nation as well

As a result things like Project Gutenburg have national chapters because a book perfectly legal in Australia may still be covered by copyright here in the United States

The U.S. is a member of the Buenos Aires & Berne Conventions

The Berne Convention Instituted by Victor Hugo, heavily influenced by

French “right of the author” which isn’t the same as copyright

The U.S. joined in 1988 after they allowed it to make statutory damages and attorney’s fees only available for registered works

Provides a series of baselines for what is covered

Requires that nations recognize copyright as France did

Coverage is automatic and does not require registration

The Berne Convention 165 countries have signed including most of the

developed world

The Priority Watch List

Every year the Office of the United States Trade Representative (USTR) does a Special 301 report

Every year the IIPA representing the BSA, MPAA, RIAA and others submit recommendations to the USTR

This year they recommended most countries for hosting cyberlockers

This year they recommended thirteen including …

Canada

5

There Is a Vision

“One copyright trade agreement to bring them all

together,

One copyright trade agreement to in the darkness

bind them”

The New Copyright Remember me saying that one thing that varied a

lot was enforcement?

The answer is ACTA, the Anti-Counterfeiting Trade Agreement

Opponents argue that it goes far beyond enforcement to rewriting copyright laws under the guise of a trade agreement which doesn’t have the same congressional scrutiny

And can be kept private from the public

ACTA Countries

6

Copyright is Non-Partisan

© Law is Not Slowing Down

Copyright Act of 1790 - 14 years with 14-year renewal

Copyright Act of 1831 – 28 years with 14-year renewal Copyright Act of 1909 – 28 years with 28-year renewal Universal Copyright Convention Copyright Act of 1976 – 75 years of life of authors plus

50 years Berne Convention Implementation Act of 1988 Copyright Renewal Act of 1992 Uruguay Round Agreements Act of 1994 Copyright Term Extension Act of 1988 – 95/120 years

or life plus 70 Digital Millennium Copyright Act of 1998

COICA / SOPA / PIPA PIPA is the Protect IP Act

Broadly expands the power of copyright holders to act against potentially or allegedly infringing material

Largely seen as a US version of ACTA

Already DMCA tools are dangerous – President Obama’s speech, birds apparently sound a lot like heavy metal

What do you think it will do to research?

The Police of the New World

ICE – Immigrations and Customs Enforcement

They used to seize cargo containers of pirated books from China. Now they seize domain names

84,000 domains at mooo.com wereaccused wrongly of having child pornography

Has seized domains with legitimate content

8

The © Office

Founded in 1870 when Congress removed it from

the court system and placed it with the Library of

Congress

450 employees

In 2011 they processed more than 700,000 claims

The © Register

Title 17 section 701 gives critical power to

Register of Copyrights including involvements in

all levels of discussions

Often given other

arbitrary powers

Maria A. Pallante

www.copyright.gov/docs/priorties.pdf

Fighting the Good Fight

9

There is An Orphan Crisis

“Orphan works are works whose copyright holders

cannot be identified or found – and are not made

publicly available by libraries for fear that rights

holders will come forward, initiate legal action, and

demand statutory damages of up to $150,000 a

work.”

- ALA

A Different Kind of Orphan

Orphaned Works

Although everyone agrees that orphaned works are a

problem (EFF, ALA, researchers, publishers, readers,

congress) little is done. No legislative effort has

happened in the 111th or 112th Congress so far.

When legislative change happens to protect current

commercial works it tends to make orphaned works

even less accessible.

Singularity & Co.

It’s Not Paranoia If …

Libraries have been sued for libel when digitizing

and republishing content and that’s even where

copyright is clear!

10

Copyright is Elastic Copyright has expanded.

In 1856 Congress expanded copyright to include public performances for playwrights. Over time that has expanded to include other kinds of performance.

Those same laws are applied to re-transmissions now and affecting cloud based businesses.

Cable telecommunications and copyright have become a black hole of esoteric regulation that logic can’t escape from.

The Band Snaps Back While Netflix and Hulu are fighting over what is a

cable company and what side of the fickle FCC sword they want to grab …

Judge Posner in MPAA vs. Flava Works ruled that embedding video is not copying and viewing is not copying

This means that there is a type of public performance that is not covered by copyright law

11

© Law Has Become A Catalyst

Copyright cases have been filed over Rolling Stones songs and advance copies of Harry Potter books

But it has been the adult industry suits that have filled up the industry in the last ten years

A Multitude of Precedents

A multitude of lawsuits against John and Jane Does users have caused conspiracy laws to be reviewed and the limits of blanket lawsuits and judicial limits (geographically)

Wifi has been reviewed as a public property with responsible access laws applying

Statutory damages are in constant flux

Common carrier and provider protections are being tested against publishers like Tumblr

The Law Strikes Back

Some suit happy parties are finding that their methods are earning the ire of the courts, and they are being charged with racketeering and being disbarred

Judges are increasingly wise about these issues and the technical issues are being broken into legal translations

Liuxia Wong vs. Hard Drive Productions is challenging if certain works can be copyrighted

Richard Posner

12

Code is Covered by ©

Jailbreaking When you buy an electronics device you aren’t

just buying hardware – you’re buying software that can’t be functionally separated.

If you want to modify your device you have to be able to change the code – these modifications are often called rooting or jailbreaking.

While copyright of digital files are challenged under the doctrine of first ownership this is a whole other problem.

Maria Returns Since copyright also includes the right to create

derivatives you can’t modify a modern device (say your smart phone) without violating copyright

Right now we can do that because the U.S. Congress opened up that privilege and it can go away

Who is in charge of making the recommendation to extend it?The Register of Copyrights at the Library of Congress

So long as …

… we are talking about code

Did you know that while an algorithm can’t be copyrighted a search result can be?

In fact any evaluation or ranking can by copyrighted

Ironically, the less useful a result is the more you can protect your copyright on it!

+1

The Reports of ©’s Death

Have Been Greatly Exaggerated

Maria Pallante: “Without enforcement like SOPA … the US copyright system will ultimately fail.”

She has said that copyright policy has to start with enforcement, not with insuring the rights of researchers and the public.

Where are the Losses? From Napster to Megaupload the major copyright

policy advocates, those paying the biggest lobbyist, have said that the Internet would destroy their income

In fact their past estimates have become so unreliable that their language has changed to “inhibit growth” from “piracy will destroy us”

In Fact:

Pays better than most American jobs

Has outperformed the US economy through the recession

Sells record-setting amounts of product overseas, earning more foreign revenue than the entire US food sector or US pharmaceutical industry

Source, IIPA Report

New Models

In fact the copyright industries are adapting to new

markets

Just as they’ve done before when new licensing

needs were created to respond to new technologies

Once both Juke Boxes and Radio were

considered to be the death of

copyright – now the very things being

defended

Questions?