Recently the U.S. Copyright Office issued a “Notice of inquiry and request for comments” with regard to anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA). See the Federal Register for the full text of the notice.
Sections of the DMCA forbid breaking copy-protection mechanisms on digital media, even for non-infringing uses, such as those allowed under fair use. However, the law also allows the Register of Copyrights to recommend that the Librarian of Congress issue exemptions to the anti-circumvention statutes every three years. Exemptions that are in place from previous rule-making must be renewed every three years as well. In the summer of 2010, the Librarian issued a number of exemptions, including one to allow de-encryption of educational video under certain circumstances.
Here is an example of the situation the exemption is intended to address: A faculty member wants to show some short video clips in class to make an educational point or perhaps comment on a social situation. He or she would like to copy clips from a legally-obtained commercial DVD so that they could easily be taken into the classroom and shown as a compilation. Without the exemption, if the DVD was encrypted with the commonly-used Content Scrambling System (CSS), it would be illegal to break that system and copy parts of the video, even if everything else about the copying would fall under fair use. Before the summer of 2010, an exemption that would allow copying high-quality video was available only if the faculty member was teaching in the area of film or media studies and the DVD was part of a collection in that subject area.
Under the rules announced in the summer of 2010, the exemption was extended to all university and college professors and to college and university film and media studies students. The same exemption is available for documentary film-making and noncommercial videos. The copier must reasonably believe that the circumvention is necessary in order to fulfill one of the above purposes. (In other words, a lower-level resolution screen capture video that did not circumvent would not fulfill the intended purpose.) In all cases, the DVD from which the copy is made must be legally-acquired and the copier must still perform a fair use analysis. This exemption states that it is for “short portions” only; it does not allow copying of entire works. The exemption only covers DVD and CSS technology, not systems such as Blu-Ray, video streaming, or others.
The Library Copyright Alliance is an organization made up of three library associations that deal with intellectual property matters and “communicate with lawmakers…to express [the need for] changes that enhance, rather than harm, the ability of libraries and information professionals to serve the needs of the general public.” They are preparing comments showing why it is important to extend this exemption for another three years. The Library Copyright Alliance is asking those of us involved with university teaching to send them as many examples as possible of how this exemption is helpful in teaching. From one staff member: “We need LOTS of examples of faculty in all disciplines using clips and examples of film students using clips.” Examples cannot be speculative; they must be real-life situations.
Ohio State folks, please send me examples by October 31. I will compile them for the Library Copyright Alliance. The final date to submit comments is December 1, but the Library Copyright Alliance will need some time to compile all the examples they receive.
Several people here at Ohio State have asked me what’s going on with a few copyright issues and cases that have been in the news recently. Some of you who follow the library press and social media closely may know all about these situations, but others may be not watch for this news as closely.
Georgia State Litigation
Cambridge v. Patton, the copyright litigation that most know as the Georgia State case, began in 2008 when Cambridge University Press, Oxford University Press, and Sage Publications sued administrators at Georgia State University. The plaintiffs alleged copyright infringement with regard to reproductions in electronic reserves and the university’s course management system. The trial concluded recently and all the parties are waiting for a verdict.
One of the aspects of the case that has generated the most interest lately is the plaintiffs’ proposed injunction. This injunction would require Georgia State to implement stringent controls on every faculty and staff member’s use of copyrighted materials and submit to monitoring to show that there is compliance. For a round up of various points of view on the impact and merits of the case, see the Chronicle’s What’s at Stake in the Georgia State Copyright Case.
Google Book Search Settlement
In March, a judge rejected a proposed settlement of the class action lawsuit that publishers and authors brought against Google for the digitization and display of books as part of the Google Book Search project. Since the rejection, the parties have been attempting to reach an alternative settlement with an opt-in arrangement. Most recently, they appeared before a judge and asked for more time. There is another status conference on July 19.
In the Meantime…
…After a lengthy process to try to identify and contact each book’s rights holder, the University of Michigan will start making digitized copies of orphan works available to members of the UM community. Orphan works are works that are still in copyright, but the rights holder is now unknown or unavailable.
Recent legal disputes over copyright and accessibility for e-books have highlighted the tensions in these two areas of law. At the same time, accessible e-book formats and reader capabilities are developing rapidly. Learn about conflicts between the rights of copyright holders and the rights of disabled students, accessibility features in popular e-book formats, and trends and compromises for the future.
In the past few weeks, there have been three pieces of copyright news that are of interest to those in higher education.
The first is that on March 7 the Supreme Court agreed to hear the case of Golan v. Holder. There are two issues in this case. The first is whether Congress may restore copyrights once works have entered the public domain as it did with some foreign copyrights through the Uruguay Rounds Agreement Act of 1994. The other is whether the law that restored these copyrights violated the free speech rights of people such as performers, conductors, and film distributors who had used those works when they were in the public domain. This case has implications for many cultural institutions, including libraries and others involved in digitization projects.
In addition, Judge Chin rejected the Google Book Search settlement this week. Locally, University Libraries’ Director Carol Diedrichs has a good roundup of news and commentary on the subject, including a statement from the CIC, on her blog.
Finally, Cambridge v. Patton, the litigation between publishers and Georgia State over copyright infringement with regard to electronic reserves, is scheduled to go to trial on May 16. This is after three years of discovery and preliminary motions.
The next Digital Media Collective meeting will be “Video in Education: Focus on Technology” on Thursday, March 10, 2011 at 11:00 a.m. in Thompson Library 150 A&B. The meeting will be roundtable style, so participants may share their work with digital video in service to education and their biggest technology challenge. A moderated discussion will follow, so bring your pressing questions about hosting, codecs, platforms, and best practices.
One subject for discussion will be video search in general; how to best leverage caption information in a search; and how to integrate a video search into existing web infrastructure.
The session will be documented on the Digital Media Collective Wiki.
Recently, I emailed members of my work group a blog post by Eric Goldman on the services of Medical Justice, a company that physicians join to fight Internet defamation, including criticisms from patients that are posted on public and social media websites. I got several questions from colleagues about how this worked, so I learned more about this phenomenon, about the the laws behind it, and how it fits in with other strategies that companies have for dealing with what they consider unfair comments on the Internet.
How is that social media sites don’t incur legal liability when people can say so many mean things to each other and about each other on their sites? If your students say untrue things about you on ratemyprofessors.com, can you sue the site for defamation? The answer is probably not, and one of the reasons is 47 U.S.C. § 230, which states that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. “ At the same time there are limits to this immunity; there can still be criminal liability and intellectual property laws are exempted.
In addition, individuals can still be liable for defamation under these circumstances. Companies are suing them for criticisms online in suits that are often called Slapps, Strategic Lawsuit Against Public Participation, a concept that predates the Internet. In other cases, online retailers require that sellers agree to terms and conditions that preclude posting negative reviews. Medical Justice uses a different tactic by making use of the limit in 47 U.S.C. § 230 for intellectual property infringement and of 17 USC §512, the Digital Millennium Copyright Act’s, take down provision in order to provide what it calls a “vaccine against libel.” Part of §512 limits an internet service provider’s liability if it responds to copyright take down notices by removing the infringing content. Doctors participating in the Medical Justice program require patients to sign a contract agreeing that they will not publish comments about their treatment except in approved fora. If they do publish comments, copyright is preemptively assigned to the doctor. This means that if the patients participate on physician rating sites, the physician can contact the Internet service provider and demand a take down as the copyright holder.
Medical Justice notes that the contract does not mean that a doctor will demand a take down of any comment, only of ones that are “fictional or slanderous.” It does not prevent patients from complaining to consumer agencies, licensing boards, or others. But how many patients understand what they are signing at the time of treatment? As Goldman points out, the inequality of bargaining position may make these contracts unconscionable.
One of the ornaments that grace our living room coffee table is a small lamp that features Betty Boop playing the ukulele underneath a palm tree. Because of a case from the Ninth Circuit this week, now I wish I had kept the original box and could tell what company manufactured it. This case (Fleischer v. A.V.E.L.A, No. 009-56317 (February 23, 2011)) was about copyright and trademark claims in the Betty Boop character. It has several interesting features, including the use of older copyright law, the concept of copyright in characters, and the interaction of copyright and trademark.
In the 1930s Max Fleischer and Fleischer studios issued cartoons featuring the Betty Boop character and also licensed merchandise with the Betty Boop image. Fleischer sold both the rights to the cartoon and to the character in 1946. Rights were subsequently sold and re-sold, and the chain of title had become rather confused. Fleischer’s family formed a new corporation and tried to re-purchase the rights in the 1970s, and, since then, Betty Boop’s popularity has risen again. This lawsuit arose between the new Fleischer corporation and another company that has also been licensing Betty Boop merchandise. At trial the court sided with A.V.E.L.A, holding that the Fleischer had not established a good chain of title in the copyright. It also held that the plaintiff had not established sufficient evidence of a registered trademark. The appeals court agreed.
Because all the works at issue had been created before 1978, the 1909 Copyright Act applied in this case. Characters that are “especially distinctive” have copyright protection apart from the copyright works in which they appear. At one point in the sale of rights, the rights in the Betty Boop cartoons had been sold separately from the Betty Boop character. At that point, the chain of title in the cartoons and the character had parted. Fleischer also made an argument on the basis of the doctrine of indivisibility, which the court disallowed. Although the doctrine is no longer used under the present statutes, it was part of the 1909 copyright law, and so the plaintiffs were allowed to use it in arguments, although they did not ultimately succeed.
In addition, Fleischer brought a trademark claim, which the appeals court also dismissed on the basis of two cases. One was Job’s Daughters and the idea that the Betty Boop images were “functional aesthetic components of the product, not trademarks.” The other was Dastar and the idea that when a copyright has passed into the public domain, a trademark action cannot be asserted as a substitute for an action for copyright infringement. Quoting Dastar, the court said “The rights of a patentee or copyright holder are part of a carefully crafted bargain, under which, once the patent or copyright monopoly has expired, the public may use the invention or work at will and without attribution.”