The Dark Underbelly Of Our Business

Have you noticed that the United States Copyright law provides virtually no incentive for anyone to pay royalties to the copyright owner?

The "sharing economy" and "permissionless innovation" have made matters more problematic for copyright owners, but it has always been the case that the government is decidedly not on the side of "the little guy or gal".

There's a very short statute of limitations (is it three years?) from the time a copyright infringement is discovered (or can be proven to have been discovered) and when time runs out to sue.  Enforcement of a copyright is the responsibility of the copyright owner, not only to discover it, to send a DMCA notice, and if a counter notice is filed, to sue in federal court.

https://musictechpolicy.wordpress.com/2016/03/04/microsoft-does-the-right-thing-in-songwriter-class-actions-but-where-is-the-government/

An author would have to be wealthy indeed to be able to afford to take a scofflaw through the federal court process.  The link above applies to musicians, but the principle is the same.

If you should ever wish to send a DMCA to Google, and if you would much  rather avoid the merry-go-round of links that make the process more efficient (ie, only the most determined complainant does not give up before completing the obstacle course), the email address of the DMCA agent is
dmca-agent@google.com

All the best,

Rowena Cherry

"Fair" Use ? Exploiting Artists.

Some words, IMHO, simply should not be used as legal terms. "Fair" for one. "Fair" is too subjective; many people understand the term differently. What seems "fair" game to a student or a scholar or a person or business entity who is very happy to redistribute other people's property without permission, may not seem at all "fair" to a creative individual whose livelihood depends on the legal licensing or sale of their work.

My friend and colleague Marilynn Byerly recommends this article on Fair Use:
https://janefriedman.com/the-fair-use-doctrine/ 

Marilynn blogs about copyright here:
http://mbyerly.blogspot.com/ 

On Facebook this week, artist Jon Paul Ferrara posted about the permissionless use of his artwork on the covers of some ebooks being sold for profit on certain retail bookselling sites.
https://www.facebook.com/jonpaulstudios?fref=photo%3E

Musicians and authors receive most of the attention when copyright infringement is discussed, although there was a memorable dust up in 2012 - 2013 when some websites claimed the right to turn "user-generated content" (ie uploaded photographs) into posters and wallpaper and postcards which the sites would sell for their own profit.  I saw my own paperback book covers offered as posters etc. I wonder whether the intent was that I should purchase it?

Quoting from TheTrichordist from 2013

"When Instagram attempted to change its terms of service that would allow the company to monetize the work of the individual without the individuals permission, consumers went ballistic. It seems that permission is not such a difficult concept to grasp when people are personally effected. This is why privacy is a much more universal issue, because everyone is effected by it....."

http://thetrichordist.com/2013/05/08/permission-privacy-and-piracy-where-creators-and-consumers-meet/

"User-generated" too often means "User-Uploaded" but not generated or owned by the site member.

Here's an excellent site that studied social media sites that strip metadata and copyright information from photographs etc.
http://www.embeddedmetadata.org/social-media-test-results.php

Bouquets for Google, in this case. Brickbats for Facebook... apparently.

The sites that remove copyright information could be a potentially serious issue from copyright holders, because these sites, in effect, make copyrighted works look like orphan works or public domain works.  Why does the law allow this? If the artist's name can --and may-- be lawfully removed from a painting, why shouldn't the author's name that the title of a book be stripped from the book?

(I am not seriously suggesting that attribution and titles should be stripped from copyrighted books. My point is that it should not be stripped from artwork.)

For authors who are self-publishing, make sure you purchase your cover art from a reputable source, and make sure you have the appropriate licensing for your anticipated print-run or distribution. If there are photographers and models involved, see if you can obtain waivers from both.

My best,
Rowena Cherry

"Permissionless Innovation" and Human Rights.

Every weekend, I mean to write a review of Anne Jamison's excellent book, "Why Fanfiction Is Taking Over The World" (which I highly recommend) and each weekend, something comes up.

This weekend, I received a time-sensitive message from thecopyrightalliance.org concerning
http://document.netmundial.br/1-internet-governance-principles/ where a draft set of Internet Governance Principles is open for public comment, just for this weekend.

This is the substance of the email sent to me:

Quote: "Discussions are ongoing about the future of the Internet, and it's important that artists' voices are heard.

NetMundial, a global multistakeholder process, is meeting Monday, April 21 to discuss a Draft Outcome Document on Internet Governance. That document, available at  http://document.netmundial.br/  shows no trace of recognition of the importance of intellectual property protection for a healthy Internet ecosystem.  Paragraph 13, for example, says:

“The ability to innovate and create has been at the heart of the remarkable growth of the Internet and it has brought great value to the global society. For the preservation of its dynamism, Internet governance must continue to allow permissionless innovation through an enabling Internet environment.”

Another aspect of the draft that deserves comment is paragraph 2 through 8, dealing with Human Rights, which lists several rights spelled out in the Universal Declaration of Human Rights, but omits any reference to Article 27(2), guaranteeing authors and creators the right to benefit from their moral and material rights of authorship.

The draft is currently open to public comment.

 ..........

Public comments must be received by Monday, April 21, 8 am EST, to help shape the final document. We think it’s vital that artists and creators speak up during this process.

To post a comment, go to http://document.netmundial.br/, click on “Internet Governance Principles”, scroll down to the paragraph on which you wish to comment, and click on the comment balloon on the right. You will need to provide your name (which could include affiliation) and e-mail address.

" Unquote.

Disclaimer: I did edit the copyright alliance email for brevity.

After jumping off the deep end, metaphorically speaking, it occurred to me to google "permissionless innovation." Naturally, my understanding of "permissionless innovation" was nowhere to be found on the Google front page, but it wouldn't be, would it?

Google prefers "permissionless innovation" and does an excellent job of convincing judges that scanning authors' copyrighted works and displaying large chunks of the works free to the public and for their own profit is "Fair Use" or "Transformative."

As I pointed out in an earlier blog, this sort of "innovation" is a lot less harmless than Google's apologists would have one believe... at least to those hoping to earn a living from their writing.  It is regrettable that Judge Denny Chin changed his mind about whether or not it is preferable for authors to "opt in" when their works are being scanned, published, and distributed on the internet, rather than "opt  out".

Pirate sites run on an "opt out" basis. The process of opting out is prescribed under the DMCA, and is otherwise known as a Take Down Notice (or NOCI if one is dealing with EBay.)

"Opting Out" is not the same as "Opting In." The "permissionless" innovator profits for as long as the copyright owner is unaware of the ongoing exploitation. Electronic works that have been disseminated across the internet by one bad actor can never be returned or destroyed, and as long as authors (or musicians) are disqualified from being called a "class", most authors and musicians are financially unable to afford justice or compensation. The best they can expect is that the exploitation stops for a short time.

One interesting blog should be read in the interests of fairly interpreting what the tech crowd think of permissionless innovation. Some think of Permissionless Innovation in a sense of being able to just do whatever they wish on the internet without having to obtain a permit from any regulatory body.
http://techliberation.com/2013/03/04/who-really-believes-in-permissionless-innovation/

If one means "Permitless" when one discusses "Permissionless" perhaps the narrower term would be preferable.

The Internet Governance Principles document does talk about Human Rights, but the definitions of Human Rights omit all reference to any rights of authors, musicians, artists, photographers, movie makers etc to not be exploited. See paragraphs 2 - 8.

As one commentator on paragraph 13 points out, "The Universal Declaration of Human Rights, Article 27,
(2) states, “Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.” 

Copyright is under attack, and to those who would tell copyright owners, "Suck it up," I would point out that so far, one does not have a Human Right to free entertainment.

All the best,
Rowena Cherry
SPACE SNARK™ http://www.spacesnark.com/