Apropos (or not) of Tim’s post, take a look at this bill.
Copyright law is a political football. Rent-seekers on both sides would pick it up and run with it.
Copyright 
Really, most of my posts about fair use are excuses to post funny videos:
Is this fair use? My feeling is that a straight-forward reading of the four factors would probably suggest a “no” answer, but a sympathetic judge might find it to be sufficiently creative as to be transformative. Certainly, this clip doesn’t reduce demand for the work it’s based on.
The league bans public exhibitions of its games on TV sets or screens larger than 55 inches because smaller sets limit the audience size. The section of federal copyright law giving the NFL protection over the content of its programming exempts sports bars, NFL spokesman Brian McCarthy said.
Any idea what he’s talking about? I’ve read through a number of sections of the copyright statutes, and I don’t think I’ve ever seen the term “sports bar” mentioned.
Update: Ladies and gentlemen, we have a winner:
In the case of a food service or drinking establishment, either the establishment in which the communication occurs has less than 3,750 gross square feet of space (excluding space used for customer parking and for no other purpose), or the establishment in which the communication occurs has 3,750 gross square feet of space or more (excluding space used for customer parking and for no other purpose) and… any visual portion of the performance or display is communicated by means of a total of not more than 4 audiovisual devices, of which not more than one audiovisual device is located in any 1 room, and no such audiovisual device has a diagonal screen size greater than 55 inches, and any audio portion of the performance or display is communicated by means of a total of not more than 6 loudspeakers, of which not more than 4 loudspeakers are located in any 1 room or adjoining outdoor space;
Now that I think of it, large sports bars with a bunch of TVs almost always have more than one game on. Now I know why! Thanks to reader dio gratia for the tip.
Should Internet service providers block copyrighted material from their networks if “fingerprinting” technology allows them to easily identify it?
Bits, the New York Times’ technology blog, has an excellent copyright discussion featuring Columbia Law Professor Tim Wu and the general counsel of NBC Universal, Rick Cotton. One of the questions is whether ISPs should block copyrighted works? Wu makes a good point,
“Technologies designed to examine what kind of content is passing the network are technologies of censorship. Tolerating the routine inspection of all content, in the search for “forbidden” content, is a fast road to a private police state.”
But I think Wu is glossing over an important point here, i.e., there is a vast difference between a “private police state” and a real police state: Private entities are vassals of the state; the state answers to no one.
[I earlier explained why copyrights do not qualify as natural rights under Locke’s theory of property. Here, I explain why the same holds true under Barnett’s positivist account of natural rights. Both passages come from my draft book, Intellectual Privilege: Copyright, Common Law, and the Common Good.]
Randy E. Barnett justifies natural rights conditionally, basing them on our appreciation of certain social goods. He emphasizes that “if we want a society in which persons can survive and pursue happiness, peace and prosperity, then we should respect the liberal conception of justice—as defined by natural rights—and the rule of law.” Not everyone values freedom, harmony, and wealth, of course. Most of us do, though, and together we easily number enough to enjoy the comforts and pleasures of human society.
We live together amicably because we recognize and respect certain natural rights. Which ones? Barnett names private property—including our property rights in our bodies—and freedom of contract. Since property protects both the right to it and the right against trespass, it corresponds to common law’s property and tort rules. Freedom of contract, which includes the right to contract and to not contract, corresponds to common law’s contract rules. Barnett’s description of natural rights thus matches the protections of persons, property, and promises at the heart of common law.
Barnett expressly includes “physical resources” in his description of property rights. “Such property rights are ‘natural’ insofar as, given the nature of human begins and the world in which they live, they are essential for persons living in society with others to pursue happiness, peace, and prosperity.” Do copyright rights qualify as natural on that description? Probably not.
Darned corporate marauders and their exploitive vision of not-so-transformative use (or whatever).
Hanging out with an old friend over the weekend way outside the Beltway, he was asking me about copyright, and told me that the RIAA was coming out with a theory that copying music from CD’s that one owns to an iPod was now a target. I found that hard to imagine–it didn’t sound like an issue that RIAA would find it worthwhile to pursue, and indeed they’ve argued against liability in such a case on a few occasions (once on the theory that a license to do so was implied). And, indeed, the Washington Post has now pulled the story.
That such a rumor would spread points to deeper problems with press coverage of the music industry’s problems as a whole. Advocates have created an image of aggressive copyright holders proceeding without regard to their own long run interests in their own audience. By and large, journalists have bought into this. That the music industry and consumers have a *real* problem to solve–the difficulty of creating new business models without enforceable boundaries to keep out free riders en masse (not every single one)–has been neglected. That it is simply not plausible that an entire economic sector has mysteriously been populated by mean, short-sighted people is likewise ignored. Alas, some of us on the free-market side have bought into this, folks who one would expect to think in terms of the big picture and the long run, not personalities. Ah well.
[My forthcoming book spends a lot of time contrasting copyright with the common law. I thus thought that I should say at least a little about what I mean by the latter.]
[C]ommon law originates in custom, wins recognition in courts, and develops in commentary. Custom naturally comes first. It long ago gave rise to a set of social practices, such as avoiding bloodshed, honoring borders, and upholding oaths, that permit us to live in peace and prosperity. Referring to those and other customs helps common law courts to resolve our disputes justly. A judge might for instance determine reasonable conduct in a tort case by looking to community standards, award legal rights to someone who has long and openly used property entitled to another, or interpret a contract’s language by light of trade usage. In these and other ways custom inspires—if not mandates—the common law. Commentators, looking back over many court decisions and across many years, help us to follow the common law’s meandering path, explaining and rationalizing its wanderings. The common law thus develops from custom, through courts, and to commentary. [The below figure] illustrates.
All copyrighted works originate as ideas, born when authors choose how to express themselves. The slightest exercise of discretion will suffice; just about anything more original than an alphabetical listing of names can qualify for copyright protection. Once having crossed that low hurdle, it remains only for an author to fix her expression in a tangible medium for more than a transitory duration. She must, in other words, record her authorship. After thereby fixing her work—in words, music, pictures, computer code, architecture, or almost any expressive medium—she enjoys the rights afforded by the federal Copyright Act. Copyright thus inheres both in doodles and multi-million dollar movies, in works ranging in creativity from formulaic news blurbs to unprecedented paintings.
Those, copyright’s fundamental features, mark it as a distinct legal entity. Though laypeople often confuse copyrights with patents, trademarks, and other intangible goods, each of those related types of IP corresponds to a unique combination of subject matter and supporting law. [The figure below] illustrates how copyright relates to, and differs from, its nearest legal next-of-kin.
Over the slow holiday season, the Internet has been alight with outrage over the Recording Industry of America’s argument in a file-sharing case that, per the Washington Post, “it is illegal for someone who has legally purchased a CD to transfer that music into his computer.”
But as copyright expert William Paltry explains, it simply ain’t so:
[T]he RIAA is being unfairly maligned. I have read the brief (and you can too here). On page 15 of the brief, we find the flashpoint: “Once Defendant converted Plaintiffs’ recordings into the compressed .mp3 format AND they are in his shared folder, they are no longer the authorized copies distributed by Plaintiffs.”
I have capitalized the word “and” because it is here that the RIAA is making the point that placing the mp3 files into the share folder is what makes the copy unauthorized. The RIAA is not saying that the mere format copying of a CD to an mp3 file that resides only on one’s hard drive and is never shared is infringement. This is a huge distinction…
An interesting point from Joel Johnson:
That it seems possible that the RIAA would go after people for ripped CDs says a lot about the way most people—including the Washington Post, apparently—view the organization…
This is true, but is any other course imaginable? CD sales, and record company profits, seem to be in free-fall, and it’s beyond credulity at this point to argue that online file-sharing isn’t, at least to a significant extent, to blame. Why would an industry fade without a struggle?
As the recording industry grasps desperately for revenues, it is perhaps inevitable that it will increasingly clash with record buyers, musicians, and the public. So expect more alarmism, more yellow journalism, and greater vitriol from the “copyfighters” and their allies and expect (probably) for all this to be used as further leverage to push “open culture” policies, however tenuous their connection to the source of conflict, the collateral damage of an industry’s slow collapse–which itself is no new or unique thing.
In other words, expect a lot more of these kind of stories in 2008. John Tierney’s article yesterday on the sociology climate change is a better explanation than most as to why.
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