copy this blog

I was amazed to see a message from a librarian who was applauding Sony’s DRM moves. This librarian believed that Sony had the right to limit copying as much as it wanted (an opinion), and that the problems with Sony DRM would just affect all those pirates out there. This was my response.

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I’m sure most of us can agree that widescale copyright infringement is a problem, and is wrong as well as being illegal. However, the Sony situation is about something completely different- and I’d have concerns with the technology solutions described [in the message, the librarian advocated a small number of copies allowed, then the disk stopped working].

In this particular situation, Sony isn’t “sticking it” to people who are infringing copyright. They are “sticking it” to *anyone who puts one of the “protected” CDs in their computer.* Not just people who copy, but anyone at all. The rootkit opened up vulnerabilities to any Windows-based PCs of completely innocent consumers, leaving them vulernable to attackers, viruses, worms, and other online threats. That’s what the lawsuits are about.

Additionally, the protection measures are pretty consumer unfriendly anyway. No technology exists that is good enough to determine whether or not a use is infringing.

Sony could create a system to copy something only three times, but that completely ignores legitimate uses of copying. While “violating copyright” isn’t a right, there are legitimate and legal reasons for copying. Copying your CDs to our iPods (ie, space shifting), is an established and legal practice. Copying a software CD for backup is also allowed. Copying excerpts that are a fair use- for example, for purposes of scholarship, cricitism, education, and so on- may be completely fair. Not only are these uses fair and legal, but they are also very important. Technology can’t make that distinction. Sony’s “protection” mechanisms can’t make those distinctions. And these uses aren’t violating copyrights. They are exemptions to the exclusive rights that copyright holders have, and they are necessary uses.

Another big copyright exemption is the doctrine of first sale- the one that lets libraries lend out books and other materials. Many technological protection measures stop that, also.

It’s always good to go back to the Constitutional basis for copyright in the U.S. when looking at these types of situations. Copyright exists “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;” -U.S. CONST., art. I, § 8, cl. 8.

I can’t say that Sony’s actions represented progress in any sense of the word. Education would be a better option… but that’s my opinion.

I followed this link from Sivacracy.
http://utopianhell.com/blog/hot-girl-on-girl-action

I completely see the point. For an industry that is purporting to attract female gamers, there sure isn’t equality in video games. I’m not just talking Rockstar, here… I thought it odd that World of Warcraft’s succubus didn’t offer an incubus counterpart, and apparently Everquest 2 has a similar problem.

In some games, you don’t even get the option to play a female character. In others, you’re given the option, but when given the chance to have sex with some other character, the character is female.

The reason? The bulk of game-playing America are homophobic, socially challenged men with very vivid fantasies about playing females who get to have sex with other females. Even when female characters are added to the game, they aren’t added with equal importance, nor are they added with the thought that maybe, just maybe, a woman might be playing that female character.

Completely accurate criticism. Vampire: Bloodlines, a game I played to (un)death, slightly moved in that direction, at least- there were men you could only use seduction (a skill) on while playing a male and women you couldn’t use seduction on when playing a female- but for the most part it followed that same trend. (The seduction skill was one of the dialog options used for a couple of purposes. It was one of the options available along with intimidation and persuasion to convince someone to give you information or other benefit, and it was also the option used to “seduce” people in bars and clubs to be able to feed on them without attracting attention.) Come to think of it, although I used the plural in the previous sentence, it should be amended: there was a man that could only be seduced by a man, and a woman that couldn’t be seduced by a woman. For the most part it followed the same traditional game roles noted in the article. The “people” I mentioned in the parenthetical line above were always women.

It was a start, but the gaming industry has a ways to go.

New Copyright Law Lets Photographers Register Unfinished Work

“It’s one step removed from registering an idea,” says photographer John Harrington.

Disturbing…

I’ve returned from DC from the ALA copyright scholar program… there will be some big changes at the Library Copyright web site soon, and I think it will be a more useful resource soon. I got to meet a group of great people, all interested in copyright, and the ALA Washington Office staff, who were very cool.

Scrivener’s Error has some very interesting analysis the “plot patent” proposed by a very strange person. There’s some discussion on Groklaw as well, including a reply from the creator of this patent. Ugh.

According to news.com, the US Department of Justice is pushing for stronger copyright laws and really appears to have completely ignored the public interest entirely (perhaps “sold out the public,” but I’d have to learn more than is in the article) in it’s rush to create new types of copyright law and create greater penalties. What is considering “attempting to infringe?” The penalties are already ridiculous, and I view this move with a great deal of suspicion. It’s certainly not a positive development for the public. I doubt it’s a positive development for the industries that are supporting it, either. Many of the artists they represent are already testing the bounds of the existing law, and I suspect there will be more artists who are at cross purposes with their publishers and representative groups as time passes and the law leans more towards a maximalist society. This type of move serves to stifle creativity, and whatever deterrence to piracy (and their definition of piracy and others’ definitions of piracy are certainly different) is certainly not worth the outrageous harm they are proposing to the Constitutional basis for copyright law, promoting the progress of science and useful arts…

According to Copyfight, Blizzard is spying on its users to make sure they’re complying with the EULA, and that spying goes far further than it should. At this point, I’m glad my wife and I chose to let our subscriptions lapse.

It’s about time to personalize this blog a bit more. I’m going to change the link structure as well. Obviously, I don’t read all of the blogs on the right every day, so I’m going to move some elsewhere.

I mention this briefly in the 312 copyright module- the nature of fair use is contentious. On the one hand, we have people stating with 100% certainty that fair use is an affirmative defense (that is, an argument that you must bring up to defend yourself against claims of copyright infringement.) On the other hand, there are many people who argue that fair use is not an affirmative defense, but a right. On the other other hand (aliens), we have people who argue that fair use is neither a defense nor a right. ^_^ Fun. Why does it matter? It matters because a) you change the importance of fair use depending on how you frame the argument, and b) it determines who has the burden of proof. The statute doesn’t say that fair use is a privilege or an affirmative defense. It says that fair use is not copyright infringement. And different courts treat fair use differently.

The Author’s Guild v. Google case is understandably being discussed by many people interested in copyright. I find all these opinions quite interesting. I know that Georgia Harper, UT System’s lawyer, believes that Google’s use is fair, as do most of the Copyfight crowd. I know Siva Vaidhyanathan isn’t so sure, and from what I gather he doesn’t think Google should be taking the action it’s taking because of the possible detrimental consequences to the public. C. Petite from Scrivener’s Error has been critical of the procedural aspects of the case, but also critical of many people’s reliance and interpretation of the famous Kelly v. Arribasoft decision in a recent post.

The third factor of a fair use analysis examines the amount and substantiality of a work used. In Kelly, the court figured that this factor counted neither for nor against the thumbnailing use. Scrivener’s Error, if I’m following the argument correctly (which is by no means guaranteed) believes that copying the complete work in this case would lead to the use not being fair, based partly on this factor. He asks the following question (paraphrasing from the evaluation in Kelly stating that copying of the whole work was necessary),

Is it necessary to copy the entirety of a textual work to “allow users to recognize the [work] and decide whether to pursue more information about the [work]”?

I think it’s a good question. Let me back up a bit, for my own sake. ^_^

Google is performing at least two activities that would ordinarily be the right of the copyright holder- copying the books and displaying excerpts of the books online. The means of displaying exerpts may be fair use (and I think it is, although reasonable people disagree). Is the entire copying of the books fair? I’d like to think so, but I’m not entirely sure. People I’ve talked to believe that the two actions- the copying of the entire work and the displaying of the work – are inseperable when analyzing fair use, which takes the purpose of the use into account. I can see that, particularly after reading Kelly, which distinguished the two but recognized the overall purpose in its fair use analysis. The author of Scrivener’s Error, I think, believes that a fair use analysis based on the above quote, if developed fully, would weigh against the copying of the entire work.

As Scrivener’s Error notes, what Google is doing and what Arriba did isn’t exactly the same. He takes that fact and asks some questions that I find fascinating in his first footnote, which he’ll get to later. I hope he does, because I asked similar questions in class but we didn’t get to really address them. ^_^; However, I also think that these differences make the rephrasing of that question above slightly off. The original statement in Kelly reads that “it was necessary for Arriba to copy the entire image to allow users to recognize the image and decide whether to pursue more information about the image or the originating web site.” This highlights one of the differences- Arriba was looking at images, and Google is looking at text. Why is that important in this context? Because I don’t think that “recognizing” an image in a graphical index in order for a user to evaluate their potential interest in the image is the same as “recognizing” text in an index or keyword search function.

The post on Scrivener’s Error mentions that the quote above has been shortened into the idea of “indexing,” which professional index-preparers would deny (as well as the Second Circuit courts, but I’m not going to address that). I’m not so sure about that, but I don’t know if in terms of fair use arguments equating the above quote with indexing matters all that much. The indexers I’ve met- mainly acadmemic, admittedly- do tend to recognize search engines as near kin to what they do, although there are differences. In my experience, some traditional indexers tend to view search engines as inferior. Note that in the Indexing and Abstracting course once taught here, one of the goals of the course was to “appreciate the limitations of indexing and searching software.” Of course, we also have classes that teach data mining and search engine related technologies. I have no problem referring to the actions of a search engine as indexing. However, I don’t think that the fair use analyses I’ve looked at solely rely on the Appeals Court’s evaluation of the third factor when they refer to of indexing. In their analsysis of the first factor, the purpose of the use, the Court notes that the purpose of Arriba’s action was to “index and improve access to images on the [I]nternet and their related websites” and note the transformative nature of Arriba’s actions. I think Google has an even stronger first factor than Arriba- digitization of text offers a great deal more in the ability to index and search text then Arriba’s copying of already digital images. That’s a whole paper on itself at some time, though, so I’ll leave that alone for now. Anyway, if the purpose is “indexing,” given the differences between text and graphics I think the question should be a bit different.

I would rephrase, looking at the third factor. Is the digital copying of the complete work necessary for users to find information about the work and seek additional information about the work?

Also, though, in the overall fair use analysis of the case, two of the factors were for Arriba, one was neutral, and one was slightly in favor of Kelly. The neutral’s swinging towards the Kelly would have changed the overall analysis, but I don’t know by how much overall.

Well, I’m going to have the opportunity to learn more about copyright through the American Library Association and their new copyright scholar program. I’ll get to visit DC for a couple of days in November and then participate in some online activities- I’m looking forward to it.

My application to the doctoral program is complete- I hope that all my recommendations got in on time. ^^;

The Author’s Guild is suing Google Print, according to their press release.

“This is a plain and brazen violation of copyright law,” said Authors Guild president Nick Taylor. “It’s not up to Google or anyone other than the authors, the rightful owners of these copyrights, to decide whether and how their works will be copied.”

Their argument is a bit disengenuous. I have two big problems with the quote. One, it makes it seem like the authors are the copyright holders, which in many cases is just not true. You can’t automatically equate authors with copyright holders. Two, and more importantly, it is not up to the authors or copyright holders to decide whether and how their works are copied in all cases. That’s why we have copyright exemptions. That’s why we say some uses are fair or protected no matter what the copyright holder says. Google doesn’t have to listen to the publishers, although there are all sorts of reasons (like avoiding a lawsuit) to do so. They are also providing an opt out, which might help their fair use argument in some ways. At any rate, although I do have problems with Google’s “being a library,” I do ultimately think that they have a decent fair use case.

Historically, the primary purpose of US copyright law was not solely to protect the authors or copyright holders. Copyright law is the means to give authors and creators incentive to create- but the point is to benefit the public. Protecting the authors is important because the protection provides that incentive to create. I think that copyright law, with all of its recent changes, hasn’t benefitted authors/creators as much as it should have- it tends to benefit publishers and distributors over authors. And at some point the protection given to the copyright holders becomes so strong that the detriment to the public outweighs any incentive it may provide- like the copyright term extensions. Authors do need protection. We have to keep that in mind. But we also must think of the public interest in these types of cases. So, here are the questions: How would the Google Print project help or hurt the public? How would the Google Print project help or hurt copyright holders? How would the Google Print project help or hurt authors?