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More People Recognizing Copyright’s ‘Free Speech Problem’

 

For many years now, we’ve written about the fact that copyright law and the First Amendment are actually in quite a lot of conflict. After all, copyright is regularly used to stifle speech, and the First Amendment isn’t supposed to allow for the barring of speech. Over the years, legal experts have been increasingly starting to realize this. A few years back, we wrote about a paper wondering why copyright law doesn’t require a showing of harm, as should be required under the First Amendment. We’ve also pointed out that the more that you explore the fact that copyright and the First Amendment seem to be in conflict, the more you recognize how screwed up copyright law has been. I’m even aware of two whole books that both focus on this problem: Neil Netanel’s Copyright’s Paradox and David Lange & H. Jefferson Powell’s No Law (as in “Congress shall make no law…”).

But, for whatever reason, copyright system supporters always seem to wave off this issue as if it’s some kook theory, unwilling to confront the stark reality that copyright law has a serious First Amendment problem. And, no, the argument that “well the two coexisted for over 200 years” doesn’t cut it, because copyright was very, very different for the first 200 years of its existence in the US. Nor does the claim that copyright law is some sort of magic exception to the First Amendment because the Copyright Clause in the Constitution “came first.” That sounds good… until you remember that the First Amendment is called that because it’s an amendment and you remember that it’s the later part that should take precedent.

Hopefully, though, more people are beginning to recognize this issue. Law Professor John Tehranian (who has written a wonderful book on copyright excesses himself, called Infringement Nation) has an excellent article at legal trade publication The Recorder detailing the simple fact that Copyright Law Has a Free Speech Problem. It starts with a perfectly clear example of this, where two celebrities sought to punish a news tabloid for publishing proof that they had married by buying up the copyright to the photographic evidence of their wedding, and then suing for copyright infringement:


First, Monge and Reynoso purchased the copyright to the photographs. Then, they sued Maya for copyright infringement for its unauthorized use of the photographs—not to vindicate any real value in the copyrighted work but as a means of suppressing and punishing truthful speech. The gambit worked. Although a district court originally found Maya’s activities protected under the fair-use doctrine, the U.S. Court of Appeals Ninth Circuit ultimately reversed and, in a 2012 published decision, deemed Maya liable for infringement.

We wrote about this case when it was ruled upon, noting the ridiculousness of the ruling at the time. As Tehranian notes, this is just one of many examples of copyright now being used to stifle First Amendment protected free expression:


By fetishizing property interests in copyright works at the expense of the public right of access to factual information, the decision effectively provided future plaintiffs with significant cover for disingenuous uses of copyright law to punish legitimate free speech on matters of public interest. And lest one think that the Maya decision only governs seemingly frivolous celebrity scandals, the precedent could just as easily be used to attach liability to the next publisher of the Pentagon Papers or other unpublished materials containing eminently newsworthy secrets.

And, no, he notes, this is not just one case. It’s happening all over.


In recent years, creationists have used the Digital Millennium Copyright Act to force the takedown of critical materials put online by evolutionists. Abortion-rights activists have brought infringement litigation to enjoin speech by pro-life forces (Northland Family Planning Clinic v. Center for Bio-Ethical Reform, 2012). Military personnel have ginned up copyright claims to suppress photographs documenting human-rights abuses (Four Navy SEALs v. Associated Press, 2005). And a prominent political talk show host has sued to prevent unauthorized reproductions of his broadcasts in order to suppress criticism of his hate-filled rants (Savage v. CAIR, 2009).

Tehranian — rightly — slams the federal judiciary for allowing this to happen, and basically ignoring the First Amendment issues, usually with the wave of a hand about how fair use solves all the problems. But, as he notes, that leaves many in the unfortunate (and nearly impossible) situation of not being able to rely on the First Amendment to protect free speech, but to try to force it directly into copyright law itself.

Because of this issue, he offers a potential solution, saying that we need a NY Times v. Sullivan for copyright. We have, of course, discussed that case many times in the past — most recently in the context of Donald Trump’s apparent ignorance of its existence or meaning. But it’s the seminal case that made defamation law “okay” under the First Amendment, by strongly favoring free expression (around public figures) by limiting defamation to cases of “actual malice.”


Courts have had no problem with imposing carefully circumscribed First Amendment limitations on tort liability in a variety of scenarios. In New York Times v. Sullivan (1964), the Supreme Court famously held that defamation claims brought by public officials should be subject to a critical First Amendment check: a showing that the defendant acted with actual malice by either intentionally disregarding the truth or acting with reckless indifference towards it. The Supreme Court has subsequently extended the holding of New York Times to all manner of defamation, false light (Time v. Hill, 1967), intentional infliction of emotional distress (Hustler v. Falwell, 1988) and invasion of privacy (Cox v. Cohn, 1975) cases involving public figures or matters of public concern.

These doctrinal innovations have a common goal: preventing the courts themselves from being used by private individuals to effectively suppress speech on matters of public concern. However, the courts have left a gaping exception: copyright law. The adoption of a New York Times v.

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Japanese Government Considering Copyright Law Revision to Eliminate Video Sites with Anime, Films

 

Yomiuri reported on April 7 that the Japanese Government has established a policy to revise the copyright law, in order to eliminate the so-called “Reach Site,” which collect links to illegally uploaded anime and films. By setting up clear measures, the government hopes to make it easier to arrest malicious site owners, forcibly shut down their sites, and remove them from search engines. The policy was submitted by Intellectual Property Strategy Headquarters at the 8th Next Generation Intellectual Property System Committee held in Tokyo yesterday.

The owners of the Reach Site don’t directly upload or sell the illegal video contents by themselves. They usually depend on the ads on their sites as a source of profits instead. Because they are only introducing the videos, under the current copyright law, their illegality have not been stated. However, the latest research proved that most of the illegal videos are watched via those Reach Site. So the Japanese Government has finally decided to take legal action against them.

As we recently reported, the damage caused by piracy of Japanese films, anime, broadcasting programs,

music, and manga outside of Japan in 2014 was estimated at 288.8 billion yen (about 2.5 billion US dollars),

which was more than double of the sales through legitimate distribution routes of the year, 123.4 billion yen

(1.1 billion US dollars).

Source: Yomiuri

*the thumbnail photo is provided by Photo AC

 … Read the rest

Copyright Law: Our Best Weapon Against Revenge Porn?

Titian/Rebecca J. Rosen

“Revenge is a kind of wild justice, which the more a man’s nature runs to, the more ought law to weed it out.” – Sir Francis Bacon

* * *

When federal agents arrested Hunter Moore last month, the Internet breathed a collective sigh of relief.

Dubbed the “Most Hated Man on the Internet,” Moore ran the notorious revenge porn website IsAnyoneUp. His site racked up millions of pageviews and thousands of dollars in advertising revenue by posting sexually explicit photographs and detailed personal information about the people he featured on the site.

According to the indictment, Moore relied on a co-defendant, Charles “Gary Jones” Evens, to hack into victims’ email accounts and obtain nude photographs to feature on IsAnyoneUp. The pair is charged with one count of conspiracy, seven counts of aggravated identity theft, and seven counts of “unauthorized access of a protected computer to obtain information.”

Moore allegedly obtained some of the photos through hacking, but bitter exes submitted many more.

The photos hosted by websites like IsAnyoneUp are often referred to as “revenge porn.” The phenomenon is [B]: One in 10 former partners threaten to post sexually explicit images of their exes online, and an estimated 60 percent follow through. (It’s also worth mentioning that upwards of 80 percent of revenge porn victims are women.)

The harms caused by revenge [B] are very real—people featured on these sites receive solicitations over social media, lose their jobs, or live in fear that their family and future employers will discover the photos.

 

The Origins of [B]

Moore may have been the “King of Revenge Porn,” but he wasn’t the first contender for the throne.

[B]In 1980, someone at Hustler Magazine had the idea to start Beaver Hunt, a contest that published reader-submitted images of naked women. Beaver Hunt photos were often accompanied by details about the woman: her hobbies, her sexual fantasies, and sometimes her name. Some of the photos were stolen. Exes submitted many more.

Throughout the ’80s, women sued Hustler for publishing their photos in Beaver Hunt without their permission. Several courts determined that publishing intimate photos without verifying whether the pictured women actually gave the go-ahead gave the false impression that all of the featured women felt comfortable with their pictures appearing in a “coarse and sex-centered magazine.”

Revenge porn websites have adopted many of the features that made Beaver Hunt notable: showing off user-generated content, submitted without the pictured person’s consent or knowledge, flanked by personal information.

There is one important difference between a nude photo appearing on a website or in the pages of a print magazine. The impact of the photo, even one featured in a popular magazine like Hustler, was still constrained by the fact that it was bound in print. Pages of the magazine could be torn out or photocopied, but the likelihood of a prospective employer coming across a Beaver Hunt photo through happenstance was slim to none.

The likelihood of an employer Googling an applicant and following up on a hit from a [B]? Significantly more likely. Throw links, cross-postings, and email into the mix, and it becomes all the more certain that revenge porn will be discovered.

 

Problems with Preventing Revenge Porn

In many ways, the lawsuits pending against revenge porn websites echo the privacy suits brought against Beaver Hunt. So far, though, victims have had limited success going after revenge porn uploaders and websites.

It isn’t because existing laws aren’t applicable. Victims who are photographed without their knowledge can use state voyeurism or Peeping Tom laws. Victims whose photos were Photoshopped or whose names were linked to naked images of other people may be able to use defamation law. Because an estimated 40 percent of non-consensual pornography was obtained through hacking, those victims can rely on the civil provisions of the federal hacking law—the same one used to prosecute Moore.

So why haven’t all these sites been shut down?

Many of the lawsuits against revenge porn websites are for tort claims like stalking, harassment or invasion of privacy. The problem is that most stalking and harassment laws are not applicable to revenge porn submitters because there is no repeated course of conduct or direct communication with the victim. False light claims for invasion of privacy—like those alleged by women who were featured in Beaver Hunt without their knowledge—may be successful against submitters. However, these laws don’t provide victims with a way to take down cross-posted, cached or linked versions of their photos on other websites.

That would require additional injunctions against additional parties, and Section 230 of the Communications Decency Act renders most claims against websites dead on arrival.

Section 230 protects interactive service providers, or ISPs, from liability for user-generated content. That protection does not apply if an ISP is also an information content provider, meaning that the ISP hosts both original and user-[B]. Revenge porn websites aren’t creating the sexually explicit photos they post. In fact, more than 80 percent of revenge porn photos are “selfies.”

Getting rid of something like Section 230 may seem appealing—why shouldn’t revenge porn websites be held responsible for the salacious selfies they post?

Section 230 was enacted after Stratton Oakmont, the financial firm of The Wolf of Wall Street fame, [B] against the early ISP Prodigy. Congress was worried that allowing ISPs to be held liable for user-generated content would crush the Internet. Even in the early ’90s, enough people were plugged into services like Prodigy and AOL that policing every piece of user-generated content would have been impossible.

As broad as it seems, Section 230 doesn’t give websites carte blanche to host any and all user-generated content—immunity does not apply to violations of child pornography, obscenity, criminal or intellectual property laws. Narrowing Section 230, or getting rid of it entirely, would allow victims to hold revenge porn websites responsible for the content they host.

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Canadian Copyright Law Resources

Canadian Copyright Act

The current Canadian [2012]

[2004]

Canadian Government

Heritage Canada has information on the history of Canadian copyright, publications, a glossary and more, as well as a microsite on the Copyright Modernization Act (the most recent amendments to the Canadian Copyright Act.)

[2004] (where you can obtain a license to use works of unlocatable copyright owners, and a list of Canadian copyright collectives and more)

Government office responsible for copyright registrations: [2006] (CIPO). CIPO also provides general information on Canadian copyright law.

Supreme Court of Canada Copyright Cases

[2002] (SCC) cases: There are many other cases on this site that may be helpful. The list below is a sample of the cross-section of cases on copyright heard by the Supreme Court of Canada.

Creative Commons Canada

Creative Commons Canada

World Intellectual Property Organization

World Intellectual Property Organization

Canadian Copyright Law Questions

Copyright Qs & As on Canadian Copyright Law. This is a forum where you can review various questions and answers and also ask your own questions.

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Craigslist’s Allegations Of “Copyright” Violations Thrown Out


Craiglist has long been criticized for a [You can read more on the initial claim here in an informative article in #protected_0#.] to innovate (it has also been [You can read more on the initial claim here in an informative article in #protected_0#.] for having among the “most draconian” terms of services of any major website on the internet). And instead of innovating, it has chosen to go after new market participants that have wanted to use Craigslist’s data on classified postings.

NEW YORK, NY - NOVEMBER 09: TV personality Ste...

NEW YORK, NY – NOVEMBER 09: TV personality Stephen Colbert (L) and Craigslist CEO Craig Newmark attend IAVA’s Fifth Annual Heroes Gala at Cipriani 42nd Street on November 9, 2011 in New York City. (Image credit: via @daylife)

One of these websites is www.padmapper.com, which was sued for obtaining Craigslist’s data and placing it on a map. This allows for users to more easily aggregate, browse and search all available apartments across various services

Padmapper took a series of data points: cost of apartment, location, size and 1BR-4BR type of information, and allowed for customers to search on that basis. And when customers found what they wanted, they would click and be directed back to Craigslist to read the full posting and complete the transaction – thus potentially generating Craigslist new customers and more satisfied sellers. Seems like a win-win.

In addition to the copyright charge, Craigslist has gone after Padmapper and other websites for violating their terms of service (ToS) and the Computer Fraud & Abuse Act (CFAA). In Craigslist’s ToS they allow for websites like Google and Bing to “scrape” and index their website, but do not allow for other non general indexing websites to do so.

Craigslist has used the threat of copyright infringement as a sledgehammer to scare innovators from competing with Craigslist by using its data. Copyright infringement penalties are stark, so being found liable here would potentially lead to trillions of dollars in damage – yes trillions. The problem is, despite Craigslist using the threat of copyright violation to go after these new companies – Craigslist never retained copyright to begin with. And today a federal court made that clear. In Los Angeles a California federal judge dismissed the copyright claims against Padmapper and other companies on the basis of them not even having copyright to begin with.

Craigslist was claiming:

  1. That it retained copyright to postings made by its customers; and
  2. That taking these data points of cost and location constituted infringement.

By a consensus of legal experts (see EFF, PK, and Techdirt’s commentary), these claims were vacuous, but they have been successfully used to scare would be competitors. But perhaps Craigslist’s days of using false threats to scare new start-ups is over.

Its claim that it has a copyright to its customers’ postings is new information to its customers. How would you feel knowing that if you posted your resume on Craigslist that Craigslist now has copyright to your resume?

While customers granted Craigslist a license, they never granted Craigslist their copyright. The license was not an “exclusive license” (other than a small window that isn’t the basis of ongoing litigation). Further, Padmapper and other websites taking these data points is clearly within the limits of Feist and other Supreme Court cases establishing that data points are not copyright-able (Feist is one seminal case but other cases may be more up-to-date with current jurisprudence).

In laymen’s terms, Craigslist never had the copyright and taking the data points isn’t infringement.

It’s very good news that these charges were dismissed, hopefully this will discourage Craigslist from going after the next competitor with baseless charges.

But this isn’t the end of the legal issues. Craigslist is still forcefully pursuing on ToS and CFAA.  It’s curious that a company that prominently displays opposition to the CFAA and encourages customers to get involved to fix the CFAA, is at the same time suing start-ups for violating the CFAA for precisely the problems for which tech activists have ridiculed the CFAA, and, in particular, its application against Aaron Swartz. That problem being, according to tech activists, the CFAA should not be implicated merely for violating the terms of service of a website – terms that until recently prohibited all minors from accessing Google, that still require you to fill your Facebook with accurate data, or that require your profile on dating websites to be completely accurate.  If companies like Craigslist want to be on the right side of fixing this law, then they should practice what they preach.

See here for details on one such campaign on reforming the CFAA.

Furthermore, Craigslist’s ToS include liquidated damages for “scraping” their website at $25,000 per incident – an incredible sum given that liquidated damages are supposed to represent an estimate of actual damage incurred, rather than serve as a penalty. According to Craigslist, over 100 million classified ads run on its site each month. Over the course of a year, this equates to approximately one billion ads online (assuming some repeats). According to this figure, if Craigslist were scraped at least once a day, the potential liability for one scraper under this provision could be as high as $9125 Trillion (365 billion “scrapes” at $25,000 per incident).

Obscenely high damages are not unusual for copyright infringement but for contract law this is insane. Again, liquidated damages are supposed to be an estimate of actual damages – not a penalty.  Their contract represents a good faith belief by Craigslist that scraping their website once a day costs them $9125 trillion – this is beyond belief.  Oppressive terms like these in their ToS should not be tolerated by competitors or consumers – and the internet eco-system should hold market participants accountable for this type of legal scare tactic to stifle innovation.

Going forward, innovators will likely find ways to aggregate and utilize the data without violating the terms of service. The ruling today may have cleared the way for innovators going forward, and hopefully put an end to bad faith and baseless legal threats by Craigslist against competitors.

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Copyright infringement cases implicate at least 250000 consumers

In the previous two years, a special kind of copyright infringement case has proliferated across the country, and the companies filing them have become known as “copyright trolls.”

The pejorative has come as these companies troll so called IP addresses that individual modems are put to get the internet. They locate IP addresses linked with downloads of their customers’ pictures and after that require Internet providers to deliver customer information.

The suits offer to settle, usually $7,500, up to from $2,500 front . If defendants are not amenable, attorneys threaten to seek damages of $30,000 to $150,000, the maximum under copyright law.

The first such cases were filed over the previous two months in Oregon. Here’s how similar cases have played out in federal courts nationally:

California: Judge Bernard Zimmerman of the Northern District of California dropped a suit in 2011 that identified because, defendants 5,011 he said, their individual situation were not similar enough to be joined together . The plaintiff’s attorneys were permitted to carry on against one of the defendants.

“If I let this issue to go with about 5,000 defendants,” Zimmerman wrote, “it’ll create a logistical nightmare with hundreds if not thousands of defendants filing distinct motions… each raising exceptional factual and legal problems that will have to be examined one at a time.”

Indiana: On March 26, Judge Jane Magnus-Stinson issued a default judgment in excess of $150,000 against Gerald Glover, who was identified in a case and failed to react. The suit alleged he often downloaded films that were shielded by CP Productions Inc.

Ohio: Judge James S. Gwin ruled last week that Voltage Pictures, which is the plaintiff in four Oregon cases, improperly linked 197 defendants in four cases. The judge said the cases must be filed separately, each with its own filing fee.

In his order, Gwin including snippets from other court judgements:

“Courts are troubled by what amounts to be a fresh business model used by generation firms ‘misapply the subpoena powers of the court, seeking the identities of the Doe defendants only to ease demand letters and coerce resolution, as opposed to finally function procedure and litigate the claims.'”

“It’s in this environment where courts must take every care to ensure that the keys to the doors of discovery aren’t blithely given to parties with other objectives.”

Oregon: In response to the case with 371 “Does” filed by attorney Carl Crowell, a Salem mom wrote a letter explaining that her adult son had illegally downloaded “Maximum Conviction” from BitTorrent while at her house.

The son “said he used a blocker so no one else could download files from his computer. Enclosed is a money order for $12.99, the price now recorded for this film on Amazon.com.

“Please offer my apologies to Voltage Pictures for not paying more attention,” she wrote, “I now consider this problem worked out.”
Laura Gunderson

Copyright infringement cases implicate at least 250000 consumers nationwide… Read the rest

DMCA Rights

Know your rights! Read about the DMCA Act

DIGITAL MILLENNIUM COPYRIGHT ACT OF 1998.

What is copyright?

Copyright is a form of legal protection automatically provided to the authors of “original works of authorship,” including literary, dramatic, musical, and artistic works.

U.S. copyright law generally gives the author/creator or owner of an original creative work an exclusive right to:

  • Reproduce (copy) or distribute the original work to the public (e.g., create and sell copies of a film)
  • Create new works based upon the original work (e.g., make a movie based on a book)
  • Perform or display the work publicly (e.g., perform a play)

Violation of one of these rights is called copyright infringement. However, the use may be authorized by copyright limitations (such as fair use) described below.

What types of works are protected by copyright?

  • Literary works
  • Music and lyrics
  • Dramatic works and music
  • Pantomimes and choreographic works
  • Photographs, graphics, paintings and sculptural works
  • Motion pictures and other audiovisual works
  • Video games and computer software
  • Audio recordings
  • Architectural works

What is not protected by copyright?

  • Unfixed works that have not been recorded in a tangible, fixed form (e.g., a song you made up and sang in the shower)
  • Work in the public domain (see below)
  • Titles, names, short phrases, and slogans; familiar symbols or designs; numbers
  • Ideas and facts
  • Processes and systems (e.g., the Dewey decimal system)
  • Federal government works (e.g., the tax code)

If I have an idea in my head, is it automatically copyrighted?

No, ideas are not copyrightable. Only tangible forms of expression (e.g., a book, play, drawing, film, or photo, etc.) are copyrightable. Once you express your idea in a fixed form — as a digital painting, recorded song, or even scribbled on a napkin — it is automatically copyrighted if it is an original work of authorship.

Who owns the copyright?

  • Author/Creator
  • Author/Creator’s heirs if the creator is dead (living family)
  • Creators of a joint work automatically share copyright ownership unless there is a contrary agreement. (e.g., If two students write an original story together, they share the copyright.)
  • Anyone to whom the author/creator has given or assigned his or her copyright (e.g., an employer if the copyrighted work is created under a “work made for hire” agreement, a publisher or record company if the copyrighted work is given in exchange for a publishing or recording contract). Usually this means that the author/creator has given up his or her own copyright in the work.

Who owns the copyright in recorded music?

It depends. If a person writes a song and records it, that person is the creator and owns the copyright. But professionally produced music can have many copyright owners. For example, the copyright to a particular sound recording may be owned by the songwriter, the performer, the producer, a record label, a publisher, or a combination thereof.

When I buy music, either online or offline, do I get copyright in the work?

No, when you buy music, you own that copy of the music. If you bought a CD, you are allowed to sell that particular copy or make fair uses of it, but you don’t own a copyright in the music itself. If you bought a song on iTunes or other service, your ownership of it may be subject to certain restrictions.

When does copyright start? Do I have to register the work with the government?

Copyright status is automatic upon creation of your original creative work in a fixed, tangible form. Registration with the U.S. Copyright Office is not necessary for copyright status and protection, though registration is needed in order to pursue an infringement claim in court.

How do I formally register my original, creative work?

You can fill out the form and submit a filing fee at the U.S. Copyright Office website.

How long does copyright last?

  • For original works created after 1977, copyright lasts for the life of author/creator + 70 years from the author’s death for his/her heirs.
  • For “works made for hire” corporate works and anonymous works created after 1977, copyright can last from 95-120 years from publication.

Are there any copyright limitations?

There are several limits on copyrights. For example:

Fair Use allows the public to use portions of copyrighted work without permission from the copyright owner. To decide whether a use is a fair use, courts look at four factors:

  1. The purpose and character of the second use: Is it just a copy, or are you doing something different from the original work? Is your use commercial?
  2. The nature of the original: Was the original work creative or primarily factual?
  3. Amount used: How much of the original work was used, and was that amount necessary?
  4. Effect: Did the use harm the market for the original work? For example, would people buy this work instead of the original?

First Sale allows a consumer to resell a product containing copyrighted material, such as a book or CD that the consumer bought or was given, without the copyright owner’s permission.

Public Domain works can be freely used by anyone, for commercial or noncommercial purposes, without permission from an original copyright owner/author. Public domain status allows the user unrestricted access and unlimited creativity! These works may be designated for free and unlimited public access, or they may be no longer covered by copyright law because the copyright status has expired or been forfeited by the owner.

What is licensing?

Licensing is when a copyright owner gives permission for someone else to do something normally restricted by copyright law. For example, the creator of a song may license a song to an advertising agency, allowing the ad company to use parts of her song in a television commercial in exchange for compensation.

Sometimes a creator may want to give everybody the permission to make copies of his or her work. For example, some musicians want fans to make copies and share their songs, so they license their songs in a way that gives others explicit permission to copy and share them.… Read the rest