I discuss that question over on the PFF Blog today.

posted by Adam Thierer @ 9:35 AM | Access: Commons, Fair Use, Orphan Works, Public Domain , Fair Use , Games , Media

Link to this Entry | Printer-Friendly | Email a Comment | Post a Comment (0)

The importance of fair use to parties across the IP policy spectrum contrasts with the divergent views on any specific contention of fair use.

Professor Polk Wagner from Pennsylvania Law School posits that the forcefulness of disagreements on fair use arise from uncertainty surrounding the doctrine; in turn, this uncertainty results in a perception of loss by copyright holders and users. Uncertainty and loss perception however can be curbed by strengthening certainty (such as simplifying the four factor test) , and better recognizing other means of accessing or using copyrighted information. The Perfect Storm: IP and Public Values, 74 Fordham L. Rev. 423, 429 (2005).

Continue reading Uncertainty About Fair Use . . .

posted by Noel Le @ 3:46 PM | DMCA , Fair Use

Link to this Entry | Printer-Friendly | Email a Comment | Post a Comment (0)

Perhaps the only doctrine of copyright law its critics love is that of fair use.

Professor Barton Beebe from Cardozo law school recently presented his statistical research on 271 opinions from the federal courts between 1978-2005 which made “substantial use of the Section 107 four-factor test for copyright fair use.” The goal of Professor Beebe’s work is to find how the four factors are weighed, how they interact and drive the outcome of cases. The cases included seven from the Supreme Court, 77 from appellate courts and 187 district courts. 21% of the opinions addresses motion picture or television mediums, 12% of opinions between 1990-2005 involved computer software and 12% involved the Internet.

Professor Beebe states: its “unclear whether fair use win rates” should be “considered disappointingly low or reasonably high.” 29% of 41 preliminary injunctions found fair use, while 31% of bench trials did. 83% found no fair use in the 23 where plaintiffs sought summary judgment with no cross-motion by the defense. Of 34 cases where defendants sought summary judgment, 77% found fair use.

Here is a summary of the four-factor fair use test in fair use and general conclusions of the presentation for each:

1. Purpose and Character of Use: has a strong correlation with the overall outcome of the test.
2. Nature of the Copyrighted Work: a relatively large % of cases did not consider this factor or found it irrelevant.
3. Amount and Substantiality of the Portion Used: nearly all opinions that gave this factor to the defendant eventually ruled for it.
4. Effect on the Market: this factor is “nearly decisive” in all cases, with a slightly higher correlation with the plaintiff.

Continue reading Predicting Fair Use . . .

posted by Noel Le @ 4:03 PM | DMCA , Fair Use

Link to this Entry | Printer-Friendly | Email a Comment | Post a Comment (2)

Many arguments in IP stem from the lesson of John Locke that labor gives right to appropriation. In our modern day, this would probably translate to investment in innovating activity or creative production giving right to appropriation. Professor Mark Lemley had something similiar in mind with his term irreversible investment, citing R&D investment as conferring protection by the patent system.

At a recent conference, Professor Robert Merges looks at the flip side of the issue to address where the IP system should consider (mis)appropriation by non-IP holders. Merges refers to these entities as “remixers;” those who create, distribute, trade, and make derivatives of existing copyrighted works without the owner’s permission. If you read sections of the paper where Merges recounts the arguments against digital copyright, you will find that these remixers sound very much like the free software movement and others opposing IPRs.

Continue reading Giving Right to (Mis)Appropriation . . .

posted by Noel Le @ 6:05 PM | DMCA , DRM , Fair Use , Free Culture Movement , P2P , Patents

Link to this Entry | Printer-Friendly | Email a Comment | Post a Comment (2)

As critics of the DMCA lament over purported loss in fair use liberties, especially targeting the 1201(f) reverse engineering exception, others find coherence and purpose behind current and possible interpretations of 1201(f).

In Legal Protection of Technological Measures Protecting Works of Authorship: International Obligations and the US Experience, Columbia Public Law Research Paper No. 05-93 (August 2005), Professor Jane Ginsburg from Columbia examines policy implementations of the WIPO Copyright Treaty (WCT), and compares the international efforts with American experience under the DMCA. The paper leaves questions to be resolved with further developments under the WTC, but finds positive precedence from US enforcement of the DMCA. After citing DMCA benefits to users, authors and commerce for works of authorship, Professor Ginsburg conciliates the intention of 1201(f) fair use exception for reverse engineering with recent US case law. According to Ginsburg, while critics are adamant about losing fair use rights, various court decisions cohere the DMCA with current technological capabilities and the delicate issues around interoperability. Professor Ginsburg summarizes one important case:

Continue reading Coherence in DMCA Reverse Engineering . . .

posted by Noel Le @ 3:28 PM | DMCA , DRM , Fair Use

Link to this Entry | Printer-Friendly | Email a Comment | Post a Comment (0)

Chris Castle, entertainment lawyer and stanch defender of IP, has a great posting this morning on Lessig and the suit against James Joyce's estate. Chris explains the search giant's vested interest in the case.

posted by Amy Smorodin @ 9:19 AM | Books , Fair Use , Free Culture Movement , Public Domain

Link to this Entry | Printer-Friendly | Email a Comment | Post a Comment (0)

DRM critics claim that Apple must be forced to open up or license its iTunes technological protocols, or in other words, hand over the jewels. Personally, I use Sony music services and products, but rather than stand by and see a company that has brought consumers many excellent products get bashed, I say lets consider other options...

In The Secret Is Out: Patent Law Preempts Mass Market License Terms Barring Reverse Engineering for Interoperability Purposes, ExpressO Preprint Series. Working Paper 975, (February 17, 2006) Professor Dan Laster of the University of Washington posits that whereas courts and scholars have looked for mass market license preemption for Interoperability Reverse Engineering from copyright law, patent law provides the proper legal framework. With the statutory position of software patents no longer under question, recent case law and other factors “strongly suggests that patent law”:

should preempt contract law when it is merely an instrument to try to patentize trade secret information…. a reasonable line between the policy of freedom of contract to prevent free riding by cloning trade secrets and the competing interests in competition and Interoperability, limiting patent preemption or state public policy invalidation to the narrow case of terms preventing Reverse Engineering for Interoperability best balances the competing interests, and is consistent with recent Congressional intent reflected in Section 1201(f) of the DMCA. Laster 34.

Continue reading Interoperability Under the DMCA . . .

posted by Noel Le @ 3:36 PM | DMCA , DRM , Fair Use

Link to this Entry | Printer-Friendly | Email a Comment | Post a Comment (6)

The French constitutional council has thrown a spanner in the works of French legislation requiring interoperability of DRM-based devices like the iPod, on grounds of lack of clarity.

Perhaps this is what they meant? Or is this taking interoperability a little too far? (Caution: this link is best suited to a mature reader).

posted by Solveig Singleton @ 3:36 PM | DRM , Fair Use , International , Legislation

Link to this Entry | Printer-Friendly | Email a Comment | Post a Comment (0)

I love Steven Pearlstein's columns in The Washington Post; he's particularly good on trade and international business issues. So I was a little disappointed with today's column on the XM-RIAA suit, in that it oversimplifies the issue. (For a more complex discussion of the topic, see the transcript of our recent Congressional Seminar on the subject). Mr. Pearlstein then conducted an online chat on Washingtonpost.com, and while he didn't accept my question on the Audio Home Recording Act and how it fails to adequately compensate artists with its ceiling and easily avoided tariffs, he did make some statements there that were more agreeable. Still being in a good mood from my recent trip to the Jersey shore, I'll focus on the positives:

Continue reading XM, RIAA and WaPo . . .

posted by Patrick Ross @ 12:37 PM | Fair Use , Free Culture Movement , Innovation , Markets , Radio

Link to this Entry | Printer-Friendly | Email a Comment | Post a Comment (0)

I like to tell anyone who will listen that the content download industry is in its infancy. We have no idea which models for which content will appeal to consumers. We have no idea what new innovations await us. And it doesn't matter, because the market, if left alone, will sort all this out. It will also sort out a balance on DRM; picture those supply and demand curves from Econ 101, and you can picture the protection vs. usability curves of DRM. When the market reaches the equilibrium of "good enough" protection for content creators and "good enough" usability for end-users, everybody will win.

There's still more evidence that the market is moving toward that equilibrium. Two big news stories today support that. NBC has gone from protesting its content on YouTube (which it had every right to do) to striking a deal to place NBC content on YouTube (today's WSJ front page). Separately, Warner Bros. is going to sell and rent movies through Guba.com.

This daily flurry of announcements is just what you'd expect from a nascent market still finding its feet. Some experiments will fail, others will succeed, and those who failed will copy the successes. DRM will play some role in this -- Warner Bros. is using a Microsoft DRM for its Guba.com offerings -- so we'll get to let the market speak as to what extent it is willing to tolerate DRM in exchange for access to and flexible use of content.

posted by Patrick Ross @ 2:55 PM | Content Controls , DRM , Fair Use , Markets , Media

Link to this Entry | Printer-Friendly | Email a Comment | Post a Comment (0)

posted by Patrick Ross @ 4:25 PM | Content Controls , DRM , Fair Use , Legislation , Markets , P2P

Link to this Entry | Printer-Friendly | Email a Comment | Post a Comment (0)

posted by Patrick Ross @ 10:25 AM | Content Controls , DRM , Fair Use , Internet , Legislation , Liberty and IP , Markets , Prices

Link to this Entry | Printer-Friendly | Email a Comment | Post a Comment (0)

posted by Patrick Ross @ 4:54 PM | Academia , Books , Fair Use , Free Culture Movement , Media

Link to this Entry | Printer-Friendly | Email a Comment | Post a Comment (0)

posted by Patrick Ross @ 3:35 PM | DMCA , DRM , Fair Use , Legislation , Orphan Works

Link to this Entry | Printer-Friendly | Email a Comment | Post a Comment (0)

posted by Solveig Singleton @ 11:35 AM | Fair Use , Free Culture Movement , Legislation , Public Domain

Link to this Entry | Printer-Friendly | Email a Comment | Post a Comment (0)

posted by Solveig Singleton @ 1:34 PM | DRM , Fair Use , Free Culture Movement

Link to this Entry | Printer-Friendly | Email a Comment | Post a Comment (0)

posted by Patrick Ross @ 12:50 PM | Academia , DRM , Fair Use , Free Culture Movement , International , Legislation

Link to this Entry | Printer-Friendly | Email a Comment | Post a Comment (0)

posted by Patrick Ross @ 6:34 PM | DRM , Fair Use , Markets , Media

Link to this Entry | Printer-Friendly | Email a Comment | Post a Comment (0)

posted by Solveig Singleton @ 12:13 PM | DRM , Fair Use , Liberty and IP , Markets

Link to this Entry | Printer-Friendly | Email a Comment | Post a Comment (0)

posted by Solveig Singleton @ 8:49 AM | Fair Use , Free Culture Movement , General , Markets

Link to this Entry | Printer-Friendly | Email a Comment | Post a Comment (0)

posted by Solveig Singleton @ 11:46 AM | Books , Fair Use

Link to this Entry | Printer-Friendly | Email a Comment | Post a Comment (0)

posted by Solveig Singleton @ 10:34 AM | DRM , Fair Use

Link to this Entry | Printer-Friendly | Email a Comment | Post a Comment (0)

posted by Patrick Ross @ 11:34 AM | Books , Fair Use , Free Culture Movement , Markets

Link to this Entry | Printer-Friendly | Email a Comment | Post a Comment (0)

posted by Patrick Ross @ 5:12 PM | Academia , Books , Fair Use

Link to this Entry | Printer-Friendly | Email a Comment | Post a Comment (0)

posted by Patrick Ross @ 9:17 AM | Academia , Books , DRM , Fair Use , Free Culture Movement , Markets

Link to this Entry | Printer-Friendly | Email a Comment | Post a Comment (0)

posted by Solveig Singleton @ 3:30 PM | DRM , Fair Use , Markets

Link to this Entry | Printer-Friendly | Email a Comment | Post a Comment (0)