Copyright Vs. Freedom Of Speech - Part Five Of The Copyright Saga

[Bryan Rosander, FL]

Please also read Part 1, Part 2, Part 3, and Part 4 of the Copyright Saga.

Up until this point, some defenders of copyright could have been claiming that the discussion about copyright is about balancing the rights of the creator versus the rights of consumers. That argument assumes that copyright is necessary even before beginning the discussion. That argument assumes that copyright is a natural right rather than an economic incentive.

Before we go on, I'll be referencing the fair use rules in US law a lot. Here are the 4 criteria:
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.

Cease and Desist Letters
First, I'm going to focus on issues should be protected under fair use but get abused by claiming copyright. One common one is the Cease and Desist Letter. These documents are letters that are sent to threaten legal action if someone doesn't stop some activity. Because the possibility of going to court is often a strong deterrent on its own, a Cease and Desist letter can be very persuasive, especially if the recipient does not have much legal experience. Often, the Internet will help correct the legal stances of both sides and prevent a court case if the suit is bogus.

Legal documents like this are considered part of the public domain and cannot be copyrighted, so the copyright claims are invalid. This is supported in the article and by TechDirt's followup where the document is considered a "process or instruction" by the court and Fair Use doesn't even enter into it.

DMCA Takedowns
Onto another enforcement problem. Apparently, most of the DMCA Copyright Notice Takedowns sent to Google are invalid, either because the content belongs to another company or because it was Fair Use. If you aren't familiar with them, DMCA Takedown letters are a bit stronger than Cease and Desist letters in that the recipient is responsible for responding in certain ways within a certain amount of time. Also, because this is the Internet, the party receiving the takedown (the hosting company, such as Youtube) is often not the party responsible for posting it. Normally, Freedom of Speech only applies to government restriction and control, not civilian. But since this restriction is given power and enforced by the government through the courts, it is still an infringement.

Sequels
District Court Bans 'Catcher In The Rye' Sequel; Since When Did The...
Fredrik Colting tried to write a sequel to Catcher in the Rye called "60 Years Later: Coming Through the Rye". The courts decided that it was a derivative work, even though it was an entirely new work. I remember there being similar reasoning at comic book companies, where companies would develop slightly different versions of each of their characters in order to prevent anyone else from taking advantage of Superman's profitability.

Copyright then becomes a defense not just of existing works, but of future works as well. It also creates a weird situation in series cannon, where the older works are freed before the new ones. When does the character himself become free? Are you allowed to reference other works, or only the ones released from copyright? What is the relationship between trademark and copyright for a character?

As an entirely new work, I think that this isn't covered at all by copyright, but the courts and some of the TechDirt commentators disagree. Even considering copyright, it passes tests 3 and 4 very clearly for fair use.

Singing While You Work
Singer In Grocery Store Ordered To Pay Royalties
Remember my article about commercial vs. non-commercial use? Apparently, singing while you work is commercial use. Since she wasn't performing, it should be ok. The company eventually backed off. As an aside, she apparently paints each one of her nails a different color.

DMCA Takedowns Aplenty
There are quite a few more where those come from. Have some fun looking at these favorites.
YouTube and the DMCA: Ten years of takedowns
EFF Takedown Hall Of Shame


If it isn't clear so far, copyright is really a tool that people use to stop other people's freedom of speech. Whether the copyright claim is valid or not is a separate issue. But, what if we were able to effectively enforce it without resorting to bogus legal threats?

Public Criticism and Review
File Sharing Pits Copyright Against Free Speech
This example is obviously in the public interest and should be protected.

They pass #1, because the distribution is for criticism. They seemed to be distributing the complete code, so this fails #3. It doesn't seem to fail 4 because they are not distributing it as competition to the original work.

#2 is the key here though, I think. As software for use in a government program for use by the public, someone could argue that its source code should be public domain. Most government documents need to be public domain, because they are public property. The big exception is documents with security classifications, but this software wouldn't be covered by that. Government software is encouraged to be open source, but is not required to be. Because the software is proprietary, it is copyrighted and cannot be distributed like it was.

I think that this is a case that is not covered under the existing rules of fair use, though that is debatable. If this was not being used in connection with the government, it certainly would not be covered. There is not a special "government use" fair use exception.

I don't think we need government use as an exception though. This should be a fair use exception for all software. If we did have more freedom of speech here, we could review the software we use more freely and corporations wouldn't be able to restrict complaints about it. While having access to the source code would be nice, the important part is being able to freely share it to experts and amateurs who can review it. Not having the source code makes a review more difficult, but with enough people, they'll find the problems anyway. This functions as a massive peer review and will only help software businesses.

We have this "review" process already for speeches, stupid comments, and whatever, but companies think they can restrict the reviewers for certain types of software. Even books and music are more open than this.

Another example of the need for open criticism is posting answers for textbooks:
Answers To Textbook Questions: Copyright Violation?
Michael Masnick claims that the answers are facts, which makes sense. You can't keep people from performing those calculations themselves. Collecting the answers for distribution might have merit though, for consideration under fair use. How does it stack up?
The examples are commercial use so they fail criteria #1. I don't think anyone would litigate for non-commercial use here. How would students do their homework? I'm not so clear on #2. The answers in textbooks occasionally have wrong answers, so if they correct them, then the purpose is criticism. Also, a lot of textbooks only provide answers for half of the questions so that teachers can assign the other ones as homework. Releasing a new work with all of the answers should be perfectly fine under #2 then. Since these are just the answers, and not the lesson or questions as well, this passes #3. For #4, this adds value to the textbook so either this won't affect it or it will improve the market. It passes #4. It appears that they didn't use a fair use defense, so that might explain the court settlement. Still, this is ridiculous.

The DMCA and DRM
To anyone who looks into it, the Digital Millenium Copyright Act (DMCA) and Digital Rights Management (DRM) take away a lot of our Fair Use protections and therefore our freedom of speech.
The Electronic Freedom Foundation (EFF) has a report on the biggest DMCA problems. A lot of these are Freedom of Speech violations that go way beyond the intents of copyright. We are lucky that it is not enforced to the letter of the law, because this one is a nightmare. The DMCA was originally created to make copyright enforceable for copying over the internet.
Unintended Consequences: Ten Years under the DMCA

DRM removes some of your rights in using a specific good. Common examples include Movies, music, e-books, and software. It usually forces you to use it in a special player, rather your preferred one. If the player doesn't work on your computer or is no longer supported, you lose the right to use that good. In rare cases, the DRM removes some of your rights over other goods too. For example, a DRM rootkit on some Sony music CDs caused horrible security problems a few years ago:
Sony BMG Litigation Info
Some good references include the Free Software Foundation (FSF) page on DRM:
Defective By Design
And the EFF page on the conflict between Fair Use and DRM:
Fair Use and Digital Rights Management: Preliminary Thoughts on the...

Richard Stallman, president of the FSF wrote a Big Brother style short story criticizing the attitude of DRM taken to its extreme:
http://www.gnu.org/philosophy/right-to-read.html


Preliminary Injunctions
This is a similar domain to the Cease and Desist letters I mentioned earlier. The freedom of speech violation is very different though. According to this paper, there are stronger protections for posting information potentially violating national security than for copyright infringement.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=85608


Under copyright law, we have been trained to see certain types of speech as "wrong" because they copy someone else's speech. We have voluntarily given up some of our rights and no longer even miss them. Meanwhile, trying to maintain the restricted rights leads to legislation and litigation which restricts our rights even further. We need to recognize that copyright is an unnatural concept. The problem is not that people don't understand the issues and how to work with it. The problem is that it is there at all.

[Bryan Rosander, FL]

Vague? I can see scattered. I'm trying to introduce ways in which copyright violates our right to freedom of speech.

Addendum
One of the biggest violations of free speech in copyright is that creators actually lose a lot of their rights to their own works if they create for a business.
For an example, one of the original costume designers in the Star Wars movies is trying to sell hand-made Stormtrooper armor:
Storm Trooper Copyright Lawsuit Back On In the UK
In order to simplify copyright law, the rights have to be held by a single entity. If you work for a business, the business usually claims exclusive rights over the creation. Otherwise, you would have to get the approval from everyone involved, which would be a nightmare. That is what stops a lot of crossover series.

On the other hand, that also means that the original creator can't reproduce the work of their hands, except under the same fair use guidelines that apply to everyone else. Taken to its extreme, a music artist for a big label couldn't even play their own songs in public without licensing them first. The labels know better than that, but they could.

[Kitashi]

This post seems very vague, so I can't really think of any comments to make. Sorry!

[President Clive-φ-Davidson]

Wow! More? Still just as informative. Keep it coming!