How copyright got to its current state
Normally I will just use a quote from RSS feeds when they are long like the one below. However, as I was reading through this one it became apparent that this was more than worth the full reading. We as creative professionals don’t fully understand the implications of copyright law and how it affects us. Any little bit that helps us has got to be an improvement.
How copyright got to its current state (Patry blog ending):
“William Patry, one of the most respected online commentators on
copyright, has
shut down his weblog.
His parting observation is stated in the personal, non-analystical
style he liked to cultivate online, but it will serve as a declaration
of policy (as well as a cry of protest) among artistic and technically
creative people for some time to come:The Current State of Copyright Law is too depressing
It so happens that copyright is a major subject covered in a book
recently released by O’Reilly, Van Lindberg’s
Intellectual Property and Open Source A Practical Guide to Protecting Code.
This blog continues with a brief statement by Van about Patry’s
decision, then a brief statement of my own, and finally an excerpt from
Van’s book about how copyright got to the state it’s in, an excerpt I
hope you’ll enjoy and learn from.William Patry, one of the foremost copyright scholars in the US, just
closed up his blog. As
Glyn Moody comments,
this is a sad day for copyright. William Patry was not only an
incredible scholar on copyright issues, but a voice of reason–as he
says, a ‘centrist’–on the copyright issues that affect us all.In his final post, Mr. Patry cited two issues. I won’t address the first
point, as it is about his personal relationship to the blog.
Nevertheless, I do want to address the second: that ‘the state of
copyright is too depressing.’A lot of us would agree that copyright is sometimes depressing. We rail
against the system and we see that it isn’t always working the way that
it should. What we don’t understand is how we got to the place where one
of the foremost scholars on copyright considered the law to be ‘too
depressing’ to discuss.I recently finished up Intellectual Property
and Open Source. One of the things that I wanted to do with the book
was help put our everyday discussions about copyrights, patents, and
open source into a larger perspective.Appropriate to the closing-down of William Patry’s blog, included at
the end of this blog is an
extract from the chapter on copyright, discussing how we got where we
are, copyright-wise.
Now, back to Andy’s comments.
Van’s book has the admirable goal of educating the
public–particularly those who work creatively with computers and
digital media, which is an awful lot of people–about copyrights and
other legal artifacts of the digital age. (Read the book itself to see
why Van used the words ‘Intellectual Property’ in the title.)
Sometimes education–which contributes to what Lawrence Lessig and
other law professors call ‘norms’–is not enough. To keep people from
lying, cheating, and stealing, one needs law. Law can have give
effects as well as bad ones–sometimes in the same clause–so we must
try to change the laws with bad effects. Education and norms have
limited success in the face of bad law, such as the current copyright
regime.
Lessig’s noble defense of the public domain in the 2003
Eldred v. Ashcroft case
ended in a disappointing defeat, demonstrating that the public
interest has a limited impact in an environment dominated by
entrenched powers. The court actually cited the international Berne
Convention in its ruling against Eldred, showing that these powers
have the money to work on a worldwide stage and cannot be defeated
merely by action in the U.S.
I say this as an employee of a company that tries the mantain the
centrism that Patry, Van, and Moody mention: to exert reasonable
rights in order to extract a reasonable profit, while supporting
forward-looking efforts such as the
Creative Commons
Founders’ Copyright
and Google’s book scanning initiative.
We currently need copyright because it gives us a space in which to
exercise our expertise and make a living by adding to the world’s
collection of high-quality content. Don’t forget that most of the
companies supporting the current copyright regime (companies so
derided by copyright critics) also produce high-quality content that
people love.
But we all need a challenge to keep evolving long with changes across
society. Education, such as Lessig and Van Lindberg and many other
lawyers offer (I recommend
Jessica Litman’s Digital Copyright
also to people who care about these issues)
can eventually produce change. It can help us find a way out of the
debilitating battles that companies carry on currently with their
customers, and proceed to forms of contributions more congruent with
the tremendous potential of digital networks. I’ll be reporting on
more initiatives in this space soon.
Copyright
The movie Antitrust came
out at the height of the dot-com boom. Antitrust
was Hollywood’s take on the geek chic of the late 1990s: the story
of a few heroic open source hackers taking on an evil, grasping
corporation situated in the Pacific Northwest.
Predictably, it was awful.
Buried among all the things that this movie got
wrong, though, was one thing it got right: early in the movie, the
protagonist is seen wearing a T-shirt that labels him a ‘code
poet.’ In one phrase, they captured why software is subject to
copyright law–because it is a form of personal expression, not just
a means of accomplishing some function.
Understanding the subtle distinctions inherent in
that statement is essential to understanding the storms of
controversy that inevitably arise around copyright issues.
Copyright in Context
Copyright is probably the most difficult of the
four major branches of intellectual property law. Although patent
documents (and some aspects of patent practice) are more complex and
intricate than the copyright equivalents, the underlying mechanics of
the patent system are relatively simple.
However, copyright has a far more human dimension
than the mechanical results of inventive effort; it is much more
about who we are than about what we do.
As a result, copyright is much more subtle than patent law. In
particular, there are two fundamental differences between patents and
copyrights:
-
Patent law
covers function; copyright law covers
expression. -
You have
to work to get your invention into the
protected space of patents. You have to work to get your expression
out of the protected space of copyright.
The social and legal difficulties of copyright law
can mostly be traced to one or both of these fundamental principles.
Expression
The first fundamental principle is that copyright
protects personal expression in all its varieties. This is both the
great strength and compelling weakness of copyright. The copyright
model creates strong incentives to expand the creator’s control in
many directions, despite the significant societal benefits that come
from sharing copyrightable expression.
Expression and personality
Copyrightable expression, by design, is closely
tied to the personality of its creator. As a result, people often
feel much more strongly connected to their copyrighted works than
other forms of intellectual property. Copyright law respects the
intimate tie between creator and creation, in part by giving the
authors of copyrighted works a very long term of protection–currently
the life of the author plus 70 years for most works. During this
term, the author is granted control over almost all use of the work
as well as rights in derivative
works (works adapted from the originally
copyrighted item).
This tight control is generally accepted in our
society, perhaps because of the personal link between expression and
authorship. If you have ever felt ripped off when someone took your
idea, your words, or your work and called it their own, you have felt
the strong personal pull of copyright.
Expression and society
On the other hand, shared creative expression
plays an important role in our society. Human beings are social
animals, and we connect with each other through our personal
expressions. Considered as a whole, culture
is just the product of many personal expressions mixed together.
This is true both on a micro and on a macro level.
On the micro level, consider the well-known movie Monty
Python and the Holy Grail. This movie is not the result of a
single personal expression; rather, it is a collective expression,
the result of many people working together. Most obvious is the
writing and acting of the Monty Python comedy troupe. There were
also, however, creative and expressive inputs from animators, camera
operators, costumers, lighting and sound designers, musicians, møøse
trainers, and many others. The name ‘Monty Python and the Holy
Grail’ is just a shorthand for the collective expressive efforts
that went into the movie.
The
various movie awards ceremonies are good examples of recognizing the
individual creative expressions that went into the whole. In those
ceremonies, the collective expression is only recognized once, with
the ‘Best Movie’ award. Every other award is given for individual
creative expressions incorporated into the whole–the best actors,
costumers, editors, directors, and others.
On a macro level, our culture as a whole is tied
inseparably to the many bits of expression, both individual and
collective, that it contains. Just like Monty
Python and the Holy Grail, our ‘culture’ is a shorthand for
the expressive efforts of many people. It is not just Picasso, Jane
Austen, J.K. Rowling, George Lucas, and Tim Burton. It is not limited
to the writers of blogs, the composers of music, the choreographers
of plays, and everyone else whose work involves creating copyrighted
content. Our culture is also created by you and all the people around
you as you talk, write, work, and live each day. It consists entirely
of shared copyrightable expression.
Expression and communication
Further, copyrighted expression has become a
cultural and symbolic shorthand for communication. For example,
saying that someone ‘is a Homer Simpson’ invokes copyrighted
expression to communicate a personal point. In a more extreme
example, there are people who primarily communicate by quoting other
people’s expressions; think of those who respond to almost every
question with quotes from Monty Python or
Napoleon Dynamite.
As Danah Boyd points out in the article
‘when media becomes culture: rethinking copyright issues,’
we appropriate more than just words for communication. People use
photos and animated ’smilies’ to show their moods. We associate
different ringtones with different people. We display our attitudes,
affiliations, and personality by putting logos, pictures, and quotes
on our T-shirts. Hip-hop in particular has a long history of
sampling–using
little bits of other songs remixed into a new composition. We have
become like Mrs. Who (from Madeline L’Engle’s A
Wrinkle In Time) or Bumblebee (from the 2007 Transformers
movie), using other people’s expressions to express ourselves
(it is amusing that this paragraph is itself an example of the point
it seeks to communicate).
Boyd’s point is that, to a certain extent, the
‘content’ industries are victims of their own success. They have
successfully managed to get their work incorporated into popular
culture. They have done this in part by building upon the cultural
heritage of prior shared expression, and in turn, their works have
become part of our shared culture, available for a new generation of
authors and artists to use.
The problem of control
The problem is that the strong personal
protections of copyright are in conflict with the shared nature of
culture. The economic benefits of copyright are built on controlling
expression, while the social and cultural benefits of copyright are
based upon sharing expression.
This problem of control puts copyright into a
difficult economic position, comparable to the original market
failure that prompted the development of copyright. Of course this is
an issue with patents too, but the much shorter term of patent
protection mitigates the problem. In the copyright world, the
combination of strong controls, long terms, and widespread incentives
to share sets up a persistent unstable dynamic.
The state of copyright
The powerful individual inclination toward control
of copyrightable material has resulted in political pressure for the
strengthening of copyright protection. In fact, the story of
copyright from the 1700s until about 1990 has been almost entirely a
story of lengthening terms (from 14 years to life plus 70 years),
increasing scope (from only particular types of works to almost all
works), and stronger protections (from restrictions on publishing
rights only to restriction of almost all uses).
Only recently have people started feeling a
contrary pull toward less restriction on copyrighted material. The
primary reason for this shift is the Internet, and more broadly, the
rise of digital media. This new technology has empowered a larger
percentage of the population to create new works and express
themselves artistically, but as new people have entered into the
creative space, they have found the well of our common culture
increasingly dry.
The ‘content’ industries, having ridden a
century-long wave of popular support of strong copyright, have
established legal and business models that depend on the existing
copyright regime. Meanwhile, popular sentiment is shifting away from
support of strong copyright, and people are ‘voting with their
feet’ by sharing music and movies, remixing and mashing up content
from other providers, and generally disregarding many of the
established boundaries of copyright.
The Power of Defaults
The second primary driver of copyright is that
expressions are copyrighted by default. This
is a relatively new development, and it has changed the fundamental
balance of copyright in our economy and in our society.
Defaults have enormous power. Just ask Microsoft;
its enormous market share in operating systems and web browsers is
almost entirely due to the power of defaults. When you buy a
computer, it is possible to get any operating system you want. You
can go to apple.com
and get a Macintosh, or find someplace that is willing to sell you a
computer with Linux (or even other operating systems) preinstalled.
If you take no unusual steps, however, and just
buy the first acceptable computer that you see, you will end up
buying Microsoft Windows. It is the default choice, and because it
works well enough, and is available, it has become most people’s
preferred choice.
Similarly, when Internet Explorer came out in the
mid-1990s, most people agreed that it wasn’t as good a browser as
Netscape Navigator. Besides, those who were interested in the
Internet had already downloaded Netscape; there was usually no reason
to change.
As people upgraded their computers and their
operating systems, however, they were faced with a choice: go to
extra trouble to download Netscape onto the new computer, or just use
the pre-installed Internet Explorer. The key market share driver for
Internet Explorer, at least initially, wasn’t the quality of the
browser; it was the browser’s simple presence on the desktop. It may
not have been the best, but it was there, it was good enough, and it
worked. In three years’ time, Internet Explorer went from an
also-ran to overwhelmingly dominant, largely by the power of being
the default.
Defaults are also a key part of the history of
copyright. There are two aspects of copyright where the default has
changed over time: in the application of copyright protection to a
work, and in the nature of works eligible for protection.
Defaults in the Application of Copyright
It used to be that expressions were not
copyrighted by default. As with patents, the creator had to
explicitly register the work with the United States Copyright Office.
Failure to register the work didn’t only mean that it was not
copyrighted when it was published, it meant that it could not ever be
copyrighted, even later.
Further, copyrighting the work took effort. Not
much effort, but it was not economically profitable to spend the few
dollars required to copyright each work unless your business model
depended upon your legal control of the expression. Therefore, the
great majority of the stories, songs, jokes, sayings, and paintings
that imbued American culture were in the public domain and freely
shared.
This changed with the Copyright Act of 1976. The
1976 Act removed the requirement that new works be registered to
receive copyright protection. Instead, the Act created a system of
protection for all ‘original works of authorship,’ published or
unpublished, from the moment they were ‘fixed in a tangible medium
of expression.’
Copyright as the default state
This change in defaults was profound; it shifted
the landscape around copyright. Before the Act, people needed to
expend time and effort to have copyright applied to their works. This
minimal barrier of registration resulted in a significant drop-off in
the application of copyright; only a percentage of all works were
copyrighted. Immediately after the implementation of the 1976 Act,
people needed to expend time and effort to keep copyright from
applying to their works. The result was that essentially all new
works were copyrighted–copyright became the natural state of new
creative expression.
The change in expectations was so pervasive that a
few people started to argue about the existence of the public domain.
Under the new law, the public domain was defined in the negative as
the absence of copyright protection.
According to one scholar, you couldn’t place works into the public
domain; you could only decline to enforce your copyright. Similarly,
works with expired copyrights weren’t in a place called the ‘public
domain’ because there was no such place. Instead, they were works
with no-longer-enforceable copyrights.
Defaults in the Applicability of Copyright
The second change to the defaults in copyright has
been the types of works that are eligible for copyright protection.
This is a different issue from the defaults in the application of
copyright law, but the changes are similar in their reach.
By way of analogy, think of defaults in the area
of network security. Assume that you have a default that ‘a
security policy must be applied to all incoming traffic.’ That is
like the default application of copyright discussed earlier; every
new work is measured against the copyright standard, just as every
incoming packet is inspected as it comes into a secure network.
On the other hand, simply saying that, ‘a
security policy must be applied’ does not tell you anything about
which traffic will ultimately be allowed through the firewall. That
depends on a completely different set of factors that must be
analyzed independently.
When deciding which sort of traffic should be
allowed through your firewall, there are two basic choices. You can
have a default
allow policy, which grants access unless
there is a rule in place denying the
connection, or you can have a default
deny policy, which forbids access unless
there is a rule allowing the connection.
Default deny policies are considered safer, but they are more work to
configure and maintain; any time some new application has to access
the network, the firewall rules must be changed to allow the new
connection.
Defaults in the scope of works eligible for copyright
The history of copyright in the United States can
also be seen as a movement from a default deny to default allow
policy for copyright. Specifically, under previous copyright acts,
only specifically enumerated types of works were eligible for
copyright protection. For example, the Copyright Act of 1790 (the
first copyright act instituted in the United States) only allowed
protection for books, maps, and charts. If you created something
else, it was ineligible for copyright protection.
This was the default deny policy of copyright at
work. Unless there was a specific provision in the law allowing
copyright protection for your category of work, you had no protection
at all.
The result of this policy was tremendous pressure
on Congress to amend the Copyright Act to allow new types of
protections and new types of works. For example, the Copyright Act
was amended in 1802 to allow ‘historical and other prints.’ Then
it was amended to provide protection for paintings and musical
compositions. It was amended again to provide protection for dramatic
works, photographs, and sculptures. Each time a new medium came to
the forefront of the copyright scene, the law had to be amended to
allow protection.
The tipping point came in the early 1900s. You may
be familiar with player pianos that read piano
rolls–sheets of paper with perforations representing different
notes. Although piano rolls allowed the reproduction of pieces of
music, a 1908 court case called White-Smith v.
Apollo decided that they were not in the allowed category of
sheet music, and were thus not protectable. The court stated:
‘These perforated rolls are parts of a
machine which, when duly applied and properly operated in connection
with the mechanism to which they are adapted, produce musical tones
in harmonious combination. But we cannot think that they are copies
within the meaning of the copyright act.’
Sheet music publishers were outraged. Partially as
a result of this decision, Congress passed a revision to the
Copyright Act the next year. The Copyright Act of 1909 gave the
copyright owner of a musical work the exclusive right ‘to make any
arrangement or record in which the thought of an author may be
recorded and from which it may be read or reproduced.’ Recording
studios are still vigorously applying the controls this Act granted
them when they prosecute people for exchanging MP3 files.
In addition, the 1909 Act took the first step
toward a default allow policy for copyright. Rather than just setting
up a new protected statutory category for piano rolls, Congress
decided to try to handle this situation in a more flexible and
permanent manner. Specifically, the 1909 Copyright Act was much more
expansive in its language when it described what would be considered
a ‘Copyrightable Work’ (some individual classifications are
omitted here; emphasis in original):
‘The works for which copyright may be
secured under this Act shall include all the writings of an author.‘[The] application for registration shall
specify to which of the following classes the work in which copyright
is claimed belongs: Books, … Periodicals, … Works of art,…
Photographs, …‘Provided
nevertheless, That the above specifications shall not be held to
limit the subject-matter of copyright as defined in section four of
this Act, not shall any error in classification invalidate or impair
the copyright protection secured under this Act.’
Under this new, more flexible language, all works
were swept into one basic category–the ‘copyrighted work.’ All
copyrighted works received the same basic protection. There were a
few classes of works, such as dramatic works, that received
additional protection. However, the creation of an omnibus class of
copyrighted works significantly simplified the administration of
copyright under the 1909 Act. When new forms of art were developed,
such as films, they could be included under ‘all the writings of an
author’ and would be covered by copyright.
The Copyright Act of 1976 was the culmination of
this evolution. Just as the 1976 Act changed the defaults for the
application of copyright to new works, it
also completed the transition from a default deny to a default allow
policy for the types of works eligible for
copyright protection. The 1976 Act declared that copyright protection
could apply (and would apply) to all ‘original works of
authorship.’ This intentionally broad and inclusive language was
designed to include any work that showed originality–the
result of decisionmaking by a creative mind.
Copying and the History of Copyright
Many people don’t realize that for most of the
history of copyright, it was legal for people to make as many
personal copies of books works as they wanted, as long as it was
strictly for personal use. The restriction on personal copying is of
relatively recent vintage, only dating back to 1915 or so.
The reason is that ‘copy’ has multiple
meanings: it is both a noun and a verb. As a verb, copy has the
common meaning, ‘to reproduce or imitate.’ As a noun, copy is ‘a
collection of written material or a complete work.’ The word is
still used in the noun sense in the publishing industry: a ‘copy
editor’ is somebody who edits written material (the ‘copy’),
not somebody who manages the reproduction of content.
In its original sense, copyright was a publishing
right. Only somebody who had rights over the work as a whole (the
‘copy’ as a noun) was able to publish and distribute the work.
Individual use was not even addressed; if a person wanted to copy
(the verb) an entire book, he or she was free to do so. Individual
reproduction was not an economic threat to content publishing because
it didn’t scale.
Section two of the Copyright Act of 1831 makes
this clear: those granted a copyright had ‘the sole right and
liberty of printing, reprinting, publishing, and vending’ the work
(in other words, all publishing-related rights. Obviously,
reproduction (copy as a verb) was required for publication of the
work (copy as a noun), but they were two different things. This small
distinction is important to understanding the state of copyright
today.
Copying (the verb) and copyright
When paintings and statues were added to the list
of works that could be copyrighted, there was some concern as to how
the copyright on something like a statue might be infringed. Statues
couldn’t be mechanically reproduced and ‘published’ like books.
The problem was that a second artist could get
around the exclusive rights granted under the law by creating a new
work that was for all intents and purposes a copy–a
republication–of the existing copyrighted work. To prevent this
sort of gaming of the system, Congress inserted the word ‘copy’
(verb sense) into the Copyright Act of 1870 as a specific protection
against the violation of the rights of artistic reproduction. The following excerpt is from the Restated Copyright Act of 1874:
A contemporary reading of this passage would
suggest that all copying would be prohibited. However, there were
different penalties imposed for the infringement of books and the
infringement of other artistic works. Significantly, copying was not
listed as a trigger for the infringement of books. Therefore, the
turn-of-the-century understanding of copyright law was that artistic
works could not be copied, but there was no limitation on the private
copying of books–only on publication.
More specifically, only copies of books that were
sold in competition to the publisher were
considered to infringe the copyright. The following image shows an excerpt
from an influential copyright treatise at the time
(Evan James MacGillivray, A Treatise Upon the Law
of Copyright: In the United Kingdom and the United States, J.
Murray, 1902, at 287-288).
In contrast, the rights reserved to authors and
creators of artistic works were much broader. The next image shows the
difference:
The significant difference between these two
passages is that all copying of artistic
works was explicitly forbidden, but there was an implicit acceptance
of private, personal-use copies of books and other literary
materials.
This ignores state common law copyright, which
applied to works immediately upon fixation (and sometimes even
before). Nevertheless, publication terminated all common law rights,
and after publication, the work became either public domain or
federally copyrighted and governed by the law quoted above.
The Copyright Act of 1909
This changed with the Copyright Act of 1909. The
1909 Act was the first step toward the ‘protectable by default’
standard described earlier, and as such, it was much more expansive
in its language when it described what would be considered a
‘copyrightable work.’ Again from the Act:
‘The works for which copyright may be
secured under this Act shall include all the writings of an author.[The] application for registration shall
specify to which of the following classes the work in which copyright
is claimed belongs: Books, … Periodicals, … Works of art,…
Photographs, …’
Notice that books, periodicals, works of art, and
other sorts of works were all included under the same ‘copyrighted
work’ umbrella. Further, all copyrighted
works received the same basic protection; they were subject to the
copyright holder’s exclusive right ‘to print, reprint, publish,
copy, and vend the copyrighted work’
(Copyright Act of 1909, Section 1a, emphasis added).
In one stroke, the creation of a single base
standard for copyrighted works reserved to copyright holders the
right to restrict all copies of literary
works, even those made exclusively for personal, unpublished use.
Stepping aside from the history for a moment, I
noted before that this situation is not too different from designing
a security policy or writing a regular expression. Having personally
made the mistake of being overinclusive in those other contexts, it
is my personal opinion that the 1909 prohibition on private copying
of literary works was a mistake. Not necessarily a mistake in the
sense that ‘they should not have done that,’ but rather a mistake
in the sense that it was an unintended
extension of the law.
It is possible that the expansion of the
prohibition on personal-use copying was an intended consequence of
the 1909 Act, but there is no discussion in the Congressional Record
about that change. Instead, the discussions were focused on the
simplification of the statute and the mechanical reproduction of
music, specifically, on reversing the White-Smith
decision about piano rolls.
Regardless of whether it was a mistake, however,
the language of the statute made copying in all contexts subject to
the restrictions of copyright. In the 1917 publication of A
Treatise on the Law of Copyright and Literary Property (American
Law Book Co.), William Benjamin Hale noted that, ‘Strictly, even a
single copy made for private use is an infringement.’ By the
mid-1920s, restrictions on personal copying were regularly upheld by
the courts.
Copying and software
The restriction on personal-use copying of books
is essential to the copyright protection of software today. Software
is copyrighted as a literary work, in the same category as books.
There is no restriction, even today, on reading
or using a copyrighted work.
In the computer world, the analogue to reading is
executing a program. As a result, there is no restriction whatsoever
in copyright law on executing a program written and copyrighted by
someone else. However, to read or execute something on a computer,
you must copy it. Copying, in fact, is one of the most fundamental
operations of a computer.
For example, imagine you are using your web
browser to read something on the Internet. The text you are reading
had copyright applied to it when it hit the disk, or maybe even the
RAM, on the author’s computer. Then a copy of that information was
brought into memory and sent over the network to the web server. The
web server put a copy in RAM and then another copy on disk. When you
asked for a copy of the HTML file, the web server copied the
information into RAM again, sent another copy over the network
(creating intermediate copies in caching servers) until it got to
your computer. Your computer made a copy in RAM, maybe cached a copy
on the disk, and then sent another copy to the video memory, where it
finally shows up for you to read.
The copyright statute tries to deal with this
issue by allowing ‘the owner of a copy of a computer program to
make or authorize the making of another copy or adaptation of that
computer program provided… that such a new copy or adaptation is
created as an essential step in the utilization of the computer
program in conjunction with a machine and that it is used in no other
manner.’ Nevertheless, some companies (and courts) have used the
existence of these various copying mechanisms to apply copyright
protections to the running of software.
For example, Vivendi Universal and Blizzard
software have sued a company called MDY to prevent the distribution
of a program that automates certain aspects of Blizzard’s World
of Warcraft game. Blizzard argues that its license agreement
prohibits the use of unapproved software connected to the game. Use
of MDY’s program violates the license, because making a copy of the
game residing in RAM is an infringement on Blizzard’s copyrights.
This case is still in the courts and will probably be decided
sometime in 2008.
Fair Use
The primary limitation copyright owners’ control
of the use of copyrighted material is a principle called fair
use. In general, fair use allows the
copying, distribution, and use of copyrighted material, without
permission, for transformative or important
purposes. Courts created the doctrine of fair use in an effort to
balance the rights of copyright holders with the rights of society at
large. Courts recognized that there was value in allowing some
copying of copyrighted material, particularly for important functions
such as teaching, scholarship, and political speech. Some of the
principles around fair use were finally codified as part of the
Copyright Act of 1976.
The most important factor in fair use analysis is
the effect of the fair use upon the market (or potential market) for
the original work. This factor is more important than all the others,
and copyright holders can almost always make an argument that any
particular use of copyrighted material can negatively affect the
market, or again, a potential market, for the copyrighted work.
In one case, for example, a sculptor made a
sculpture based upon a photograph from another artist. Even though
the original photographer could not sculpt and therefore could not
have created the sculpture, the court ruled that this was not a fair
use because it negatively affected the market for authorized
sculptures related to the photograph.
A Rule of Thumb
To make things simpler, the easiest way to reason
about copyright is assume that any use of a
copyrightable work is legally reserved to the copyright owner. That
is the power of defaults at work. The control granted by copyright
isn’t quite that broad, but identifying specific uses as being
outside of copyright can be difficult and tricky, and the law can
change under you if your application pushes the boundaries of what is
acceptable.
For example, you may be familiar with the Grokster
case, MGM Studios, Inc. v. Grokster, Ltd.
When the Grokster peer-to-peer network was created, the established
rule in copyright law was that a technology sometimes used for
copyright infringement would not be prohibited if it had substantial
noninfringing uses as well (the ‘Sony’ rule, named after
Sony Corp. v. Universal City Studios). The
owners of the Grokster network felt that they were safe, because the
underlying peer-to-peer technology was used for legitimate content,
swarm distribution of material, and dissident political
expression–all substantial noninfringing uses.
In the Supreme Court’s decision in this case,
the court created the new doctrine that inducing
copyright infringement was prohibited under the same terms as
copyright infringement itself. Because Grokster encouraged and
derived revenue from the massive amounts of copyright infringement
happening during use of its system, Grokster itself was liable and
had to shut down.
. . .and a bit about legal interpretation
It is unfortunate that under the current copyright
law, the most accurate predictions about prospective cases usually
come from borrowing from the branch of academia known as legal
realism. Legal realism is a cynical
interpretive strategy that sees all law in terms of political power
structures; the reasoning behind individual decisions is nothing more
than window dressing for underlying political biases and power
struggles.
Under a legal realist analysis, any use of
copyrighted material that was objectionable or questionable would be
struck down as infringing. Nonobjectionable use of copyrighted
material would be allowed only if the political and economic
interests in support of the use were more powerful than the political
and economic interests against the use. Unfortunately, this is, in my
opinion, the best guide to the outcome of any future copyright case.”
(Via O’Reilly News.)
User Registration
If you are already a Meetup group member and would like access to post comments or, an article of your own, please use your chosen "username" and, "valid email address." All user profile fields MUST to be filled out (name, address, etc.) or you will be denied access. Thank you.Meetups
Joining in and participating in the monthly Meetups is what makes the group successful. When did you last attend?Upcoming Presentations:
November: Contracts & Licensing Your Art (was fantastic!)
December: Art Basel Miami Beach & Fairs
December: End of the year party
January: Getting Your Tax Life Set - Accounting Matters
January: Grants Writing Workshop
February: How to Photograph Your Work for a Winning Proposal & Portfolio
TBA: Intro to the Public Art process
TBA: Financial Planning for Artists
TBA: Setting up a Studio Work Flow
TBA: How to Use a Web Site
TBA: Getting Involved with Community Arts Programs
TBA: Artists Studio Visits
Web Development
We have a large network of web developers available for any web project, from small to large. Just ask for a quote.Twitter D and Twitter Dumb!
How many of you are actually using Twitter? At a future Meetup (Oct.?) we will do a presentation on social media and how to bring your web site into the world of social networks. Send me a note below to sign up early.
Twitter?
“I have a group of friends that are NOT technologically savvy. They don’t know a hard drive from a long drive. They do know sales and how to run a business, so how and why would they want to take the time to learn about social networking and Twitter specifically?
Well let’s first take a look at what is Twitter? Twitter is a micro blogging platform designed to let users answer the question: ‘What are you doing right now?’ It allows friends (followers) to hear and answer that question in real time via SMS, IM and webpages.
Purpose
How you use Twitter really depends on your purpose. Is it for personal use or for business or both? Depending on how you answer that question will define your parameters of: what you tweet about, how often you tweet, the language you use and the people that follow.
Since you are a reader of this blog I’m going to assume that you are using Twitter for mostly business use.
Here are some different ways to use Twitter:
Opinions-You can share your opinion on a certain subject, current event.
Research-Asking your followers their opinion on a product idea, what they like/dislike, what they are currently using?
Live news/Updates-With Twitter you can hear/tell about industry news while it happens. If you are at a conference and Bill gates announces that he is going to give all his money to me. You can let me know. (that would be very appreciated)
Sharing/Broadcasting- If you find an interesting article or blog post that is relevant to your followers, you can share it with a link (twitter automatically inserts it using tinyurl.com). If the articles are of interest this will build followers that are interested in the same type of information as you. I use a twitterfeed.com to broadcast any new blog post to my twitter followers automatically.
Branding/Microblogging-When the above strategies are used correctly one of the benefits is branding. You will become a credible resource a trusted resource. We teach the definition of marketing as getting someone with a need to know, like and trust you. Twittering is perfect to help enforce all of those criteria.
Answer Questions-If you see a tweet asking for advice or guidance on your topic, you can answer it. This will do two things. It will further establish you as an industry expert and if your answer is compelling others will begin to follow you.
Tips for effective Twittering
When Twitter remember every tweet counts!! You are either moving your brand and reputation forward or backward that is why is very important that you really consider what is the purpose of your Tweet and ask yourself if your followers really care?
Followers are no good to you and your circle of influence if they don’t care. So take caution and only Tweet on subjects that your ideal client would be interested in. It does no good to have 10,000 followers if they are following you because you did a massive ‘followers’ campaign-if they aren’t in your target audience. Getting followers for a followers sake just isn’t valuable.
Monitor your Tweets vs. reply. If you Tweet too often you may start to dilute your effectiveness. It is the law of scarcity. In addition, if you have too many reply’s and no tweets you may confuse your follower (remember they only see half the conversation). I usually answer a question publically three times and then take it to a direct response.
Use technology to help you. I use twitter feed, friend feed and a facebook application. The possibilities are endless. I’ll write on this in an upcoming blog.
Remember that Twitter is a conversation tool. Pretend that your are in front of a room full of your potential prospects what kinds of Tweets ‘conversations’ would you like to have with them?”
(Via Small Business Branding.)
Got an idea for a Facebook application?
Saturday’s SocialMediaCamp could have been an interesting venture for a few artists but, none were in attendance. How do you spread the word about events? Many use Facebook but, what about creating an application to be used with Facebook. Have an ideas? My team is interested in talking to you about it.
Got an idea for a Facebook application?:
“FBML Essentials — Learn how to build it quickly using the Facebook Markup Language (FBML) and other easy-to-use tools in the site’s framework. This book not only gets you started with this toolkit, you also get a complete reference on every FBML tag Facebook has ever written, with advice on the best ways to use these tags in your code. Browse the book.
This book includes:
- A walkthrough of a sample Facebook application
- Design rules for using images, CSS, JavaScript, and forms
- Specific chapters on tags — authorization tags, logic tags, user/group tags, profile-specific tags, and more
- Messaging and alerts using FBML
- Creating forms with FBML
- Facebook navigation
- Notifications and requests
- Dynamic FBML attributes, including MockAJAX
- How to test your FBML code
- A chapter on FBJS, Facebook’s version of JavaScript”
(Via O’Reilly News.)
First Ever Podcast - A Blogging Audio For You
If you have a blog or web site and would like to incorporate audio podcasts on your site, be sure to let my company help you get it up and working.
First Ever Podcast - A Blogging Audio For You:
“The Small Business Branding Podcast will officially launch this Fall but in the recent news about the Blog Mastermind Program I thought I would give you an audio that covers blogging.
Inside The Podcast
This easy podcast was created with Audio Acrobat if you ever want a simple solution for adding audio to your site and you’re not tech minded, it’s an easy way to do it.
I do plan on installing Podpress (A Wordpress plugin for audio) for the launch of the SBB Podcast, but I’m VERY tired, and this blog theme has been a bit tricky these days. I didn’t want you to lose out on a good audio about blogging.
This podcast is a short one that covers the beginnings of blogging, some technical aspects of it, and what you can do to benefit your business with your blog.
There’s some great ideas on how to become a fellow member of your community, be a thought leader, and offer helpful solutions.
I also talk about how often you should blog and how to use it as a real business tool.
Keep your readers happy and they’ll reward you for it. We’ll discuss how to gain interest on your blog and some practical ideas for your site blog.
Some Quick Blogging Ideas For Your Blog
- Industry news
- FAQ
- Products
- Accomplishments
- Articles Stats
- Industry history
- Text or audio interviews
Enjoy the podcast! We’ll be officially launching the SBB Podcast this Fall, watch for details and advertising opportunities.
(Via Small Business Branding.)
When Museums Break Art
Wonder why the white gloves and high priced insurance for shippers? Damage, that’s why.
“‘Incidents of damage involving gallery visitors are few and far between; works of art stand a far greater chance of being destroyed at the hands of curators, picture handlers or cleaners. Most of the major galleries have had to issue shame-faced apologies for breakages at one time or another.’…”
(Via ArtsJournal: Daily Arts News.)
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