Copyright

Wedding Phtography and Copyright Release

by on September 19, 2008 · 51 comments

I’m getting married next Spring, and I’m currently negotiating the contract with our photographer. The photography business is weird because even though customers typically pay hundreds, if not thousands, of dollars up front to have photos taken at their weddings, the copyright in the photographs is typically retained by the photographer, and customers have to go hat in hand to the photographer and pay still more money for the privilege of getting copies of their photographs.

This seems absurd to us, and we’ve found a photographer who’s willing to give us our images in high-resolution digital form along with a copyright release to make our own copies of the images. I’m currently researching language for the copyright release, and the advice offered on the subject—mostly by photograhers—strikes me as excessively restrictive. Photographers seem to regard it as extremely important to micro-manage their customers’ use of the images they take, giving them glorified permission slips that only allow the pictures to be used for personal, non-commercial use. There seems to be a consensus that this is important, but I don’t really understand why. It’s not like pictures of my wedding are going to have tremendous commercial value, and allowing us to commercially exploit the photos won’t prevent our photographer from doing so as well (which is fine by me).

Anyway, all of the example copyright releases on the web are unnecessarily restrictive, so what I think I’m going to propose to our photographer is language derived from the creative commons license, like so:

the photographer will provide to the undersigned a worldwide, royalty-free, non-exclusive, perpetual (for the duration of the applicable copyright) license to exercise the rights in all images to: (1) Reproduce the images, to incorporate the images into one or more Collections, and to Reproduce the images as incorporated in the Collections; (2) to create and Reproduce Adaptations; (3) to Distribute and Publicly display the images including as incorporated in Collections; and, (4) to Distribute and Publicly display Adaptations.

If there are any lawyers in the audience, please let me know if you have any suggestions for improvement.

Also next time a lawyer at Creative Commons has some spare cycles, it would be great if he or she could write a guide to the copyright issues around wedding photography (or for-hire photography more generally). Ideally, CC should provide a how-to guide for hiring a photographer in a way that ensures that all photos taken will wind up under the appropriate CC license. This might include explanations of the key legal pitfalls and example language that could be placed directly into the photographer’s contract. It would also be good if it included a page that customers can point their photographers, explaining what a CC license is and why the photographer shouldn’t freak out about having some of his or her photographs released under it. In our digital age, it’s absurd that most people have to ask permission to make copies of pictures of their own wedding.

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Software and a Digression

by on September 8, 2008 · 4 comments

My recent comments on a developers experiment in combatting software piracy, posted here.

And an absolutely brilliant adventure in free speech marital event planning, here (OT).

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The Cablevision Case and Others

by on September 4, 2008 · 7 comments

Recently for DRMWatch I commented on the Court of Appeals ruling that Cablevision’s remote digital video recorder service did not directly violated copyright. The Court, however, did raise the possibility of indirect liability. Continue reading →

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Van Lindberg on “Intellectual Property”

by on August 27, 2008 · 13 comments

I’m reviewing Van Lindberg’s Intellectual Property and Open Source for Ars Technica. The first chapter is an introduction to the theoretical concepts that Lindberg describes as the “foundations of intellectual property law”—public goods, free-riding, market failure, and so forth. I’ve found several of the assertions in this chapter frustrating.

For example, on p. 8, Lindberg writes:

We want more knowledge (or more generally, more information) in society. As discussed above, however, normal market mechanisms do not provide incentives for individuals to create and share new knowledge

Italics mine. Now, this claim is simply untrue. Normal market mechanisms do, in fact, create incentives for individuals to create and share new knowledge. Mike Masnick has offered one excellent explanation of how they do so. See also Chris Sprigman and Jacob Loshin and the restaurant industry. Plainly, lots of new knowledge is created without the benefit of copyright, patent, or trade secret protection.

It’s likely that Lindberg is just being sloppy here, that he meant that markets do not provide sufficient incentives for creativity. This is a perfectly plausible view—indeed, it’s the mainstream view among scholars of patent and copyright policy. But even this weaker formulation is controversial. Boldrin and Levine, for example, are two respected economists who deny it. Even this weaker formulation, therefore, is too strong. Certainly many scholars (myself included) believe markets produce insufficient creative expression, but the point has certainly not been proven conclusively.
Continue reading →

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DMCA takedown notices should take fair use into consideration

by on August 21, 2008 · 31 comments

A U.S. district judge got it right yesterday when he refused to dismiss a lawsuit against Universal, ruling that copyright holders should take into account fair use prior to issuing DMCA takedown notices. The dispute arose last year when a woman received a takedown notice over a YouTube video featuring a kid dancing to a Prince song owned by Universal.

Over at Ars, fellow TLFer Tim Lee has a good overview of the issue in which he explains how the various legal arguments played out. EFF, which represents the plaintiff in the case, offered several compelling reasons why ignoring fair use in a takedown notice might actually constitute “bad faith” under the DMCA.

As Cord discussed a few months ago, my employer, the Competitive Enterprise Institute, recently received a meritless takedown notice for a global warming ad we posted on YouTube which featured about seven seconds from a copyrighted video clip. Our use of a trivial portion of a copyrighted video was clearly both transformative and non-commercial, yet the content owner still deemed it worthwhile to try to get the video removed.

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PFF Aspen Summit: An Important Premise Unexplored?

by on August 18, 2008 · 5 comments

So I’m enjoying the high-caliber presentations so far at the PFF Aspen Summit. (Full disclosure: I spoke on the first panel dealing with intermediary liability.) But I’ve heard a couple of speakers say things that made me ask, “Where’s Mike Masnick?”

Jim Griffin of OneHouse kicked off the morning. He’s an advisor to the Warner Music Group. I didn’t write anything down, so risk mischaracterizing what he said, but one of the premises in his keynote was that creators of music and other digital content have to paid for producing that content.

Likewise, as he was setting up the second panel discussion, Tom Sydnor of PFF took it as a given that producers of copyrighted content have to paid for that production, and that the problem is figuring out how to get them paid. The premise behind this conclusion is one that should be explored.

I take it as a given that intellectual property law should promote the progress of science and useful arts. There are differences on this question, as proponents of moral rights will tell you. But taking creation of new works as the goal, what does it take to make that happen? Do creators need to be paid for their production all the time? Or can we sometimes get the benefit of their production while requiring them to earn money elsewhere, such as by bundling their creative works with other works. This is something TechDirt’s Mike Masnick has harped on for years now. He summarized his thinking to date a year or so ago in his “Grand Unified Theory On The Economics Of Free” post.

To summarize: Having fun. Good discussions. I want more! Specifically, more breadth! The economics of free is (are?) an elephant in the room.

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A Boon for Copyright’s Biggest Holders?

by on August 14, 2008 · 7 comments

Tim has already analyzed the decision of the Federal Circuit in Jacobsen v. Katzer, but I’d go even further than he did and say that it could broadly impact the media and software industries. Because violating a condition to copyright can avail a plaintiff to seek greater damages than breach of contract, look for copyright owners to limit the scope of a license to use or redistribute a song or a software program by making them “conditions” of the copyright license and not contractual “covenants.”

The case is good for copyright owners that use open source licenses. But the rationale of the decision is not limited to only open source.  And who relies on copyright the most? RIAA and MPAA. It’s only a decision of an interlocutory appeal, but copyright holders everywhere will be reviewing their licenses after this one. My fellow tech transactional attorney friends could be busy, as what’s good for the goose is good for the gander.

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The First Sale Doctrine and Copyleft

by on August 14, 2008 · 12 comments

Over at Ars Technica, I cover an important decision from the Federal Circuit. For the first time, a federal appeals court has held that distributing copies of a free software product in violation of its license term is copyright infringement, and not merely a breach of conract.

I think Mike is a little bit off base here in comparing the decision to the recent “promo CD” case:

Creative Commons seems to basically do the same thing that stamping “not for resale” does on CDs: it creates a separate license on top of copyright, and then tries to use copyright’s defenses against breaking that license. The court in the Universal Music case seemed to indicate that such claims on top of copyright weren’t enforceable. But this Artistic License decision seems to say that some claims on top of copyright can be upheld.

In the Universal case, the court found that the “not for resale” language wasn’t enforceable because there was no “exchange” that resulted in the “license” (also known as “consideration” — which is usually required for US contracts to be binding): “UMG gives the Promo CDs to music industry insiders, never to be returned. … Nor does the licensing label require the recipient to provide UMG with any benefit to retain possession.” The same is true of Jacobsen’s software, as well. The software is given, never to be returned, and the license doesn’t require the end user to provide Jacobsen with any benefit in return.

I address this point in the final paragraph of my story:
Continue reading →

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Regulation begets Regulation

by on August 6, 2008 · 17 comments

Ryan does a great job of laying out the issues with the MPAA’s SOC waiver request. He makes two key points—that the FCC shouldn’t be telling cable companies what to do with their networks, and copyright law shouldn’t give the MPAA veto power over the design of technological devices. Ryan spends most of his time arguing the first point, but I think the second point is the really important one.

The thing to understand about DRM is that it’s less a encryption technology than (as Ed Felten puts it) a hook on which to hang lawsuits. Every DRM standard of any significance has been broken within months of its release. Without the DMCA on the books, many consumer electronics manufacturers would simply ignore DRM, reverse-engineering the relevant standards and producing devices that accept DRMed content and convert it to open formats. Knowing that this would happen, Hollywood would long since have given up trying to produce the kind of end-to-end DRM that’s at issue in these proceedings.

Which means that the existence of the cable industry’s Selectable Output Control powers is almost entirely a consequence of bad government policy. In a free market, I’d be able to go down to my local Best Buy and purchase $50 box that would take an HDCP input and output the content in a variety of non-encrypted formats. Such a box is unavailable only because Congress—at the behest of the MPAA—made producing it a felony. That, not anything the FCC has done, is the fundamental issue in this controversy.

Now, it makes me uncomfortable to have the FCC dictate how the cable industry runs its network. But I think the fundamental point that needs to be emphasized is that regulation begets regulation. That is, given that the DMCA has screwed up the consumer electronics industry, it’s not surprising that a lot of people want the FCC to step in to minimize the damage. The solution is to repeal the DMCA and let the free market work. But until that happens, I’m not going to get too outraged at Public Knowledge for asking the FCC to prevent the MPAA from abusing its government-granted veto power over the design of consumer electronics devices. I don’t agree with their solution, but I think their heart is in the right place.

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Under-Appreciated Existing Legal Remedies for Trolling, Defamation and Other “Malwebolent” Invasions of Privacy

by on August 3, 2008 · 10 comments

Anyone interested in the long-running debate over how to balance online privacy with anonymity and free speech, whether Section 230‘s broad immunity for Internet intermediaries should be revised, and whether we need new privacy legislation must read the important and enthralling NYT Magazine piece  “The Trolls Among Us” by Mattathias Schwartz about the very real problem of Internet “trolls“–a term dating to the 1980s and defined as “someone who intentionally disrupts online communities.”

While all trolls “do it for the lulz” (“for kicks” in Web-speak) they range from the merely puckish to the truly “malwebolent.”  For some, trolling is essentially senseless web-harassment or “violence” (e.g., griefers), while for others it is intended to make a narrow point or even as part of a broader movement.  These purposeful trolls might be thought of as the Yippies of the Internet, whose generally harmless anti-war counter-cutural antics in the late 1960s were the subject of the star-crossed Vice President Spiro T. Agnew‘s witticism:

And if the hippies and the yippies and the disrupters of the systems that Washington and Lincoln as presidents brought forth in this country will shut up and work within our free system of government, I will lower my voice.

But the more extreme of these “disrupters of systems” might also be compared to the plainly terroristic Weathermen or even the more familiar Al-Qaeda.  While Schwartz himself does not explicitly draw such comparisons, the scenario he paints of human cruelty is truly nightmarish:  After reading his article before heading to bed last night, I myself had Kafka-esque dreams about complete strangers invading my own privacy for no intelligible reason.  So I can certainly appreciate how terrifying Schwartz’s story will be to many readers, especially those less familiar with the Internet or simply less comfortable with the increasing readiness of so many younger Internet users to broadcast their lives online.

But Schwartz leaves unanswered two important questions.  The first question he does not ask:  Just how widespread is trolling? However real and tragic for its victims, without having some sense of the scale of the problem, it is difficult to answer the second question Schwartz raises but, wisely, does not presume to answer:  What should be done about it? The policy implications of Schwartz’s article might be summed up as follows:  Do we need new laws or should we focus on some combination of enforcing existing laws, user education and technological solutions?  While Schwartz focuses on trolling, the same questions can be asked about other forms of malwebolence–best exemplified by the high-profile online defamation Autoadmit.com case, which demonstrates the effectiveness of existing legal tools to deal with such problems.

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