In today’s Morning Links, there was a great little piece from the always-reliable folks at Techdirt, featuring a video by Tom Bell which humorously draws attention to the ridiculousness of overly restrictive copyright law by pointing out just how much ‘accidental’ infringement an innocent person might do without even thinking.
Most people, Filthy Pirates notwithstanding, are decent, honest folks who really do pay for books and music and media when they use them—the popularity of iTines, Netflix, Spotify, Pandora et al attests to that! But do you mentally dock yourself karma points every time you sing Happy Birthday?
In the spirit of Bell’s amusing little video, I thought back to my last 24 hours. How much ‘infringement’ did I do?
– 7:30 am. Reading my book of daily essays on the bus. The inestimable Mr. Joseph Telushkin summarizes, as part of today’s lesson, the key points of two other books…
7:50 am. Guy beside me on the bus has his headphones on too loud, thus exposing me to music I did not pay for.
– 9:00 am. Heading down to my first class. As I wait for one of the teachers to release my group to me, the other teacher shows me a Pinterest pin for a craft she thinks I can do with the kids on Friday.
– 12:00 pm. Apparently, wedding video trailers are a thing now. Two co-workers, who happen to be cousins, both have them. There are several levels of potential ‘infrigement’ here, from use of the background song, to corporate logos in background shots, and of course the notion that the photographer, not the subject, owns the images in the first place…
– 3 pm. My mother is travelling this weekend, and forwarded me her hotel confirmation email so that I would have her number in case of emegencies. That email contained logos, artwork and so on which is no doubt proprietary to the hotel…
– 5 pm. I recently got into the Lego Minifig craze, and was searching for some reviews of the Simpsons ones on YouTube. Apparently, whole bunches of people have availed themselves of the opportunity to recreate the show’s theme song in Lego now that the proper minifigs are available for it. That’s numerous unauthorized uses of the song…
– 7 pm. Went on Facebook. Several joke forwards, stupid cat pictures, newspaper articles and so on…
This is somewhat tongue-in-cheek of course; many media companies have woken up to the realities of non-malicious sharing and even encourage it. The Toronto Star, for example, does not count articles read on Facebook as part of one’s 10 free reads per month. And one of those Simpsons credits makers states in the comments that he got a personal phone call from of of the show’s producers applauding his work.
But still, there are many who get so caught up in the Piracy is Bad banner that they lose sight of common sense. They fail to distinguish between an innocent ‘hey, check out this stupid cat picture’ and ‘let’s torrent the complete works of JK Rowling so everyone can read for free.’
Bell’s video is a refreshing reminder that a legal system based on common sense, not entertainment industry paranoia, is where we need to be.
When you referred to TechDirt as always reliable, I knew I was in for a bunch of inaccurate nonsense, and I was right. Much of their so-called information would make a politician blush or feel envious about the skill of their truth twisting.
A good way to determine infringement in the real world is the profit test.
If you read a Dr Seuss story to you kid or a group of kids for free, that’s legal.
If you read a Dr Seuss story and charge admission, that’s illegal because you are making a profit.
So, singing “Happy Birthday” to a friend or family member is legal.
Most of the other things you mention are also legal since they are not for profit.
A second test is the taking profit motive. If you take profit from the legitimate owner, then you are violating copyright. Putting those JK Rowling books online for free denies her a profit so you are in the wrong.
A third test is the taking the credit motive. If you steal someone’s artwork or craft project without their permission and claim its creation, then you are messing with their copyright. Many craft projects, however, are offered as how-to so that’s legal.
Not a lawyer or anything, but I’m pretty sure profit doesn’t matter in determining whether something’s a copyright violation or not, unless you’re talking about it in context of the four-factor test to determine fair use. Otherwise, fanfic’s “this isn’t for profit” disclaimer would make it legal. By the same token, fanfic often increases the demand for the original work rather than replacing it, therefore it’s not taking profit away, so it should be doubly legal.
Except it’s not. Funny how that works.
Looking for example copyright notices, of the sort you might find in books, I find the example:
Nowhere in that do I find the phrase “…unless it’s not done for the purpose of making a profit” or “unless it doesn’t affect the market for the book.”
Marilynn Byerly is right. These wooden-headedly literal claims about copyright infringement are beyond silly. They flow from a misunderstanding of the nature of law.
For instance, seeing someone on the bus watching their (legally owned) movie isn’t illegal. Showing that movie in an auditorium with hundreds of people without paying the proper fees is. But how easy would it be to write a law that distinguished between the two. Where would perfectly legal become terrible illegal? Two people? Five people? Twenty people? Does charging matter? What if the movie is free but those who watch pay for food and drinks? Endless, endless troubles. A law would need to be a thick as a stack of encyclopedias and still would not cover everything.
If you want to know what’s infringing, look what federal courts have ruled as infringing. It’s quite limited and, with but a few exceptions, sensible. And that’s as it should be. It’d be virtually impossible to create a written law that take in all the complexities. That’s why this remark makes no sense:
“… but Bell’s point is pretty clear: “the fact that no one thinks copyright law should be fully enforced, demonstrates the need for reform.” In fact, he notes that pretty much everyone agrees that full enforcement is “undesirable and counterproductive.” And, really that should be a clear sign of just how flawed the law itself is.”
This Tom Bell, to my amazement, is a law school professor. But he seems to have no understanding of the distinction between Anglo-American common law, where laws are general and the gaps are filled in by judges, and European or Continental law, where attempts are made to define every little detail and national constitutions can run to hundreds of pages that defined every aspect of life. The result is such a mess, the Nazis didn’t need to bother to alter Germany’s Weimar Constitution to rule as a dictatorship. Attempting to take into account every contingency, Weimar had emergency decrees. All the Nazis needed to do was point to them. In contrast, our Bill of Rights has no emergency overrides.
Yes, copyright needs to be changed. Our current laws date from the late 1970s and need to be revised for all the technologies that have been developed since then. We also need to do something about lawyers who abuse laws with cease and desist letters in all areas, not just copyright.
But we need not go down Bell’s foolish path of trying to lock down every issue and attempt to appropriate every possible scenario into legal or illegal boxes.
I know. I fought and won a copyright dispute in Seattle federal court. The very generalities and flexibilities of our copyright law aided me. No legislature had sat down and decree that a detailed chronology of a complex work of fiction was infringement or not. In fact, neither had any court. I was only totally untrod ground.
In my defense, I needed only to argue that Tolkien’s Lord of the Rings was so complex that it was legitimate fair use for me to create a chronology of it. The judge, who dismissed the Tolkien estate’s lawsuit “with prejudice” also didn’t have to deal with a too detailed law that attempted too much. It was enough that LOTR is incredibly complex chronology and that Tolkien almost never gives dates in his narrative. Attempting to put that OK for LOTR not OK for Little Bunny Foo Foo, into written statutes would have been impossible. For most of life, it’s best to let people (judges or juries) deal the the particulars.
One final note, the very title of that video, “In Today’s Copyright System, Everyone’s a Violator” is total bosh. That makes as much sense as claiming that everyone who brushes up against someone in a crowd is committing assault or someone who cuts across a yard is committing trespass.
So relax, most of you are not criminals.
–Michael W. Perry, Untangling Tolkien
I should also remark on this posting by Chris: Nowhere in that do I find the phrase “…unless it’s not done for the purpose of making a profit” or “unless it doesn’t affect the market for the book.”
That matters not. Someone can lighten the rights they are claiming in such statements. In my latest book, Lily’s Ride: Rescuing her Father from the Ku Klux Klan, I state: “Copyright © 2014 by Michael W. Perry. All Rights Reserved. Teachers and websites may use up to three chapters from this book without seeking permission.”
But there’s simply no way I can make and enforce claims unsupported by law, by prior court decisions, and by the particular court that handles my case. I can’t decide that fair use doesn’t apply or that legitimate money-making from my book isn’t acceptable simply because I don’t like it. For instance, I can control whether a movie is made from my book, but I can’t keep someone from making a parody of it–although given the seriousness of the topic, I doubt anyone would try.
In short when an author asserts copyright, he gets what the copyright law is, like it or not. He can weaken its demands, but he cannot strengthen them by what he does or does not claim.
By the way, Lily’s Ride is based on a 1879 bestseller. That means I can’t hold the copyright to those particular words. My copyright extends only to the selection of chapters I made from a much longer book and the extensive historical commentary I wrote.
When I file for copyright, I’ll state that. But there’s no requirement that I include all those limitations and gottchas on my copyright page. In fact, it’d be foolish to do so, since copyright law can change. By simply asserting copyright, I get all the rights of copyright at any particular time. It’s be stupid to make claims that won’t later be enforceable or to worry that any claim I don’t make on that copyright page isn’t enforceable.
–Michael W. Perry, Lily’s Ride