elf: Is copyright working? (Is Copyright Working?)
elf ([personal profile] elf) wrote in [community profile] scans_daily2009-12-12 11:42

Some Copyright Basics

I feel like I'm in a bad superhero comic
Disclaimer: this post may not be nearly cracky enough. Also, I am neither a mod nor a lawyer.

I tend to think everyone online, or at least everyone who has a blog (which includes LJ/IJ/DW), knows all about copyright law and fair use and copyfight activism. Everyone knows the Four Factors, right? And spends their non-scancrack time reading Doctorow, Lessig, and chillingeffects, right? And keeps up with the Volokh Conspiracy to track what lawyers are saying and judges are ruling about free speech and related legal matters?

Erm, maybe not so much? Hence this post. With comic pages! Because Duke Center for the Public Domain has a free comic book about copyright law: Bound By Law: "By day a filmmaker… by night she fought for FAIR USE!"

The basic principles, from a non-lawyer perspective (i.e. do not quote me in court unless you are attempting a defense of "not guilty by reason of mental defect or insanity"):
Copyright law is *psychotic.* It was created in the late 1700s to deal with legal situations arising from the technology of that time. It's been amended several times to deal with new technology (player pianos, radio) and new legal situations (surveillance cameras, recorded testimony), and sometime in the last few decades (*cough* 1978 *cough*), it reached senile dementia. It still works as well as it ever did for its original purposes (e.g. keeping unscrupulous publishers from grabbing a popular book and republishing it without paying the author), but it flails around madly when dealing with the realities of computers and the internet.

This system doesn't make any sense

Legal Parts
To understand copyright & fair use, it's important to start with what the law says rather than various corporate, university and website policies.

In the US (which is where the DW servers reside, so US law is most relevant here), copyrights have a purpose. That purpose is not, "to make sure authors & artists get paid what they deserve for their efforts." That part's incidental—the purpose of copyright is "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

Got that? PROMOTE PROGRESS. That's why fair use allows commentary, criticism, research use, educational use, and parody—because all of those lead, or can lead, to progress. The reason we allow authors & artists to control the use of their works (when we do not allow, for example, carpenters and chefs to control the use of theirs), is so they'll be encouraged to release those works widely and thus inspire progress—new works, new understandings, more fun, better ways of thinking, and so on.

This system doesn't make any sense

I'll try to avoid tangenting too much about public domain and ever-extended copyright periods. Just assume a small, angry rant about how, if the extension act of '78 hadn't been put in place, everything published before 1953 would be in the public domain now—all the comics, books, movies, and music. And anything from before 1981 that hadn't been renewed would also be in the public domain—which means almost all the small-press comics, the B movies, the one-hit-wonder albums.

Yeah. Think about that for a moment—all those works, potentially freely available to share and remix at will. All locked away in order to protect The Mouse.

But back to fair use. In order to promote progress, content creators are allowed certain controls over the use of their works (not their ideas), which is supposed to encourage them to distribute those works so people can benefit from them. Part of that benefit is the unlicensed use of those works, in ways that promote progress. This is called "fair use"—and it is entirely legal. It is not "an exception" to copyright law; it's part of it, in the way that easements are part of property law. Copyright owners don't have the right to limit or control fair use, in the same way that building owners can't restrict access to the shade their buildings provide on public sidewalks.

Fair use—use it or lose it!

So what kind of use is fair? Start with the actual law: US legal code Title 17, Chapter 1, Section 107. Limitations on exclusive rights: Fair Use (emphasis mine):
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.
There are no rules about these, other than that judges are supposed to consider all of them. There is no acceptable percentage to copy. There is no way to know if you have violated copyright until a case is brought before a court and a ruling is made (and there are some lawyers who are challenging the whole of copyright law on that basis).

Artists may shy away from acts that are actually legal

In the case of [community profile] scans_daily (this is my srsly non-lawyer interp):
1) USE: Use of the works is noncommercial, although not legally nonprofit; not directly educational, but for review & commentary—point in S_D's favor, but not an overwhelmingly strong one.
2) ORIGINALS: The copyrighted works are published and fiction; no claim is made that these are scientific facts leading to new research—mixed point; published works are allowed more fair use than unpublished ones; fiction is more restricted than nonfic. Nobody's questioning that the originals are copyrighted and the owners have a vested interest in how their works are used.
3) AMOUNT: Amount being copied is limited; whether it's limited enough would depend on a court ruling. Case rulings on this have been erratic; the most famous is when 40-odd words of President Ford's memoirs were published by a newspaper, which was successfully sued for infringement for posting "the heart of the work." However, the memoir was, at the time, unpublished; in effect, they were slapped for posting "spoilers" as much as for copying. If any S_D post went to court, this is likely the point on which the ruling would be made… and judges would have screaming catfights to get *away* from this case, because none of them wants to be the first one to establish an exact percentage that can be copied. S_D's specific rules would lead to an obvious question of "so, exactly how many pages of a comic book may be reposted for review, critique, and commentary?"—and nobody wants to make that legal call. (Well, Marvel does. But Marvel doesn't get to decide what fair use is.)
4) EFFECTS: Effect on market for the originals is not likely an argument they could win in court. No lawyer's going to be able to prove that S_D prevents comic book sales. (Are there people who read here & don't buy? Sure. Would they otherwise be buying? I'm thinking not only, "no," but "hell no; they'd forget comic books even existed and read movie fanfic instead.") Since the majority of what's posted here is out of print, a very strong argument can be made that S_D sustains interest for collection editions and reprints, and keeps people aware of & interested in comic books in general.

This system doesn't make any sense

Recommended Reading:
All hail the creative commons license, which lets these books be distributed freely online:
Lawrence Lessig's Free Culture & Remix
James Boyle's The Public Domain: Enclosing the Commons of the Mind
Cory Doctorow's Content: Selected Essays on Technology, Creativity, Copyright and the Future of the Future
Lawrence Liang's Guide to Open Content Licenses
(Not all of these are remotely related to "how many pages of a comic book can be reposted on a website?" But they all deal with the growing corporatization of intellectual property, and end users--that's us--fighting to maintain our right to appreciate and use the culture we live in.)

Articles & Rulings:
Fair Use as Innovation Policy by Fred Von Lohmann
there has been a notable dearth of commentary and judicial precedent addressing the most widespread and common fair use activity of the past four decades: private, non-transformative, personal-use copying.

Statutory Damages in Copyright Law: A Remedy in Need of Reform by Pamela Samuelson and Tara Wheatland
U.S. copyright law gives successful plaintiffs … between $750 and $150,000 per infringed work. …[A]wards of statutory damages are frequently arbitrary, inconsistent, unprincipled, and sometimes grossly excessive. This Article argues that such awards are not only inconsistent with Congressional intent in establishing the statutory damage regime, but also with principles of due process….

Fair Use Memorandom & Order in Sony v Tenenbaum
…a defendant who used the new file-sharing networks in the technological interregnum before digital media could be purchased legally, but who later shifted to paid outlets, might also be able to rely on the defense.

Writings of Rebecca Tushnet and her blog posts about the DMCA hearings regarding use of video clips.

The Place of the User in Copyright Law by Julie Cohen
The situated user engages cultural goods and artifacts found within the context of her culture through a variety of activities, ranging from consumption to creative play. The cumulative effect of these activities, and the unexpected cultural juxtapositions and interconnections that they both exploit and produce, yield what the copyright system names, and prizes, as "progress."

Your Webby Allies:
Electronic Frontier Foundation (EFF): the leading civil liberties group defending your rights in the digital world.
Chilling Effects: Chilling Effects aims to help you understand the protections that the First Amendment and intellectual property laws give to your online activities. (This is where to go if you've gotten a DMCA takedown letter.)
Organization for Transformative Works (OTW): a nonprofit organization run by and for fans to provide access to and preserve the history of fanworks and fan cultures. (Their legal advocacy is focused more on fanworks than general use, but they're very aware of how content-sharing is a crucial part of fannish discourse.)
zemo: (Default)

[personal profile] zemo 2009-12-13 00:44 (UTC)(link)
It's crazy, isn't it? They can basically make their own laws by simply making it impossible for their "opponent" to participate in a fair trial they might actually lose. -_-
blakeyrat: (Default)

[personal profile] blakeyrat 2009-12-13 01:48 (UTC)(link)
That's why you run your own web server.

I mean, on the one hand... yes, the DMCA might give copyright holders *too* easy a path to remove content from the web. On the other hand, why would you expect a company like Apple, Microsoft, Google or Yahoo or whoever to stand up and fight for your rights? Those companies don't owe you anything, at least not anything worth creating a legal defense to a DMCA.

If you're going to do something "on the edge" of legality, run your own web server and handle your own legal issues. Servers and bandwidth are pretty cheap now.